Case Note & Summary
The petitioner, Shripad Shankar Chindam, was a councillor of the Ahmednagar Municipal Corporation. By an order dated 27.02.2020 passed under Section 13(3) of the Maharashtra Municipal Corporations Act, 1949, he was removed from the post of councillor on a recommendation made by the Corporation for alleged misconduct under Section 13(1)(a) of the Act. Aggrieved, he filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging the removal order. At the hearing, the respondents raised a preliminary objection regarding the maintainability of the petition, arguing that the petitioner had an alternate and efficacious remedy under Section 13(4) read with Section 405 of the Act, which provides for a reference to a Judge to dispute the disqualification. The petitioner's counsel argued that the petition was maintainable and that the alternate remedy was not efficacious. The Court, after hearing both sides, examined the provisions of the Act. It noted that Section 13(4) read with Section 405 of the Act specifically provides for a reference to a Judge in matters of removal and disqualification under Section 13. The Court held that since such an alternate and efficacious remedy was available, the writ petition was not maintainable. Consequently, the Court dismissed the petition without entering into the merits of the case, granting the petitioner liberty to avail the alternate remedy. The Court also directed that if the petitioner makes a reference within a specified period, the same shall be considered without being barred by limitation.
Headnote
A) Constitutional Law - Maintainability of Writ Petition - Alternate Remedy - Article 227 of the Constitution of India - Section 13(4) read with Section 405 of the Maharashtra Municipal Corporations Act, 1949 - The petitioner challenged his removal as a councillor under Section 13(3) of the Act. The respondents raised a preliminary objection that the petition was not maintainable due to the availability of an alternate remedy of reference to a Judge under Section 13(4) read with Section 405 of the Act. The Court held that since such an alternate and efficacious remedy exists, the writ petition is not maintainable and dismissed it without entering into the merits. (Paras 3-7)
Issue of Consideration
Whether a writ petition under Article 227 of the Constitution of India is maintainable when an alternate and efficacious remedy of reference to a Judge under Section 13(4) read with Section 405 of the Maharashtra Municipal Corporations Act, 1949 is available to challenge an order of removal of a councillor.
Final Decision
The writ petition is dismissed as not maintainable due to the availability of an alternate and efficacious remedy under Section 13(4) read with Section 405 of the Maharashtra Municipal Corporations Act, 1949. The petitioner is granted liberty to avail the alternate remedy, and if a reference is made within a specified period, it shall be considered without being barred by limitation.
Law Points
- Alternate remedy
- Efficacious remedy
- Maintainability of writ petition
- Reference to Judge
- Section 13(4) Maharashtra Municipal Corporations Act
- 1949
- Section 405 Maharashtra Municipal Corporations Act
Case Details
2021 LawText (BOM) (01) 17
Writ Petition No.4254 of 2020
Mr. P.R. Katneshwarkar (holding for Mr. Abhishek Kulkarni) for petitioner; Mr. D.R. Kale, Govt. Pleader for respondent No.1; Mr. V.D. Hon, Senior Advocate (instructed by Mr. A.V. Hon) for respondent No.2
Shripad s/o Shankar Chindam
The State of Maharashtra, Department of Urban Development, Mumbai; Municipal Corporation, Ahmednagar
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order of removal of a councillor passed under Section 13(3) of the Maharashtra Municipal Corporations Act, 1949.
Remedy Sought
The petitioner sought to quash the order dated 27.02.2020 removing him from the post of councillor.
Filing Reason
The petitioner was removed from the post of councillor by the State Government on a recommendation of the Municipal Corporation for alleged misconduct under Section 13(1)(a) of the Act.
Previous Decisions
The order dated 27.02.2020 was passed by the State Government under Section 13(3) of the Act.
Issues
Whether the writ petition under Article 227 is maintainable in view of the availability of an alternate and efficacious remedy under Section 13(4) read with Section 405 of the Maharashtra Municipal Corporations Act, 1949.
Submissions/Arguments
Respondents submitted that the petitioner should have made a reference to the Judge under Section 13(4) read with Section 405 of the Act, which provides an alternate and efficacious remedy, and therefore the writ petition is not maintainable.
Petitioner argued that the writ petition is maintainable and the alternate remedy is not efficacious.
Ratio Decidendi
When an alternate and efficacious remedy is available under the statute, a writ petition under Article 227 of the Constitution of India is not maintainable. The remedy of reference to a Judge under Section 13(4) read with Section 405 of the Maharashtra Municipal Corporations Act, 1949 is an efficacious remedy to challenge an order of removal of a councillor under Section 13(3) of the Act.
Judgment Excerpts
By this petition under Article 227 of the Constitution of India, the petitioner is impugning the order dated 27.02.2020, passed under Section 13 (3) of the Maharashtra Municipal Corporations Act, 1949...
Since a preliminary objection was raised on behalf of the respondents regarding maintainability of the petition in view of the remedy of reference available under Section 13(4) read with Section 405 of the Act... I have come to the conclusion that the petition is not maintainable in view of availability of such an alternate and efficacious remedy...
Procedural History
The petitioner filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench, challenging an order dated 27.02.2020 passed by the State Government under Section 13(3) of the Maharashtra Municipal Corporations Act, 1949, removing him from the post of councillor. At the hearing, the respondents raised a preliminary objection regarding maintainability. The Court heard arguments on the preliminary issue and dismissed the petition.
Acts & Sections
- Maharashtra Municipal Corporations Act, 1949: Section 13(1)(a), Section 13(3), Section 13(4), Section 405
- Constitution of India: Article 227
