Case Note & Summary
The petitioner, Avinash Ramesh Bagwe, was elected as a Councillor of the Pune Municipal Corporation on 23 February 2017 from a reserved Scheduled Caste seat in Prabhag No.19A. His election was challenged by the respondent No.1, Bhupendra Rambhau Shendge, a defeated candidate, who filed an Election Petition before the Small Causes Court, Pune, under Section 16 of the Maharashtra Municipal Corporation Act, 1949. The petition alleged that the petitioner was disqualified under Section 10(1D) of the Act due to: (a) illegal construction on property owned by his wife, (b) non-disclosure of multiple bank accounts in the prescribed affidavit, and (c) registration of several criminal offences against him. The returning officer had dismissed the objections during scrutiny of nominations and allowed the petitioner to contest, after which he won. The Small Causes Court, Pune, by its judgment dated 29 June 2021, allowed the election petition, disqualified the petitioner for the remainder of his term as a Councillor, and declared the election null and void. Aggrieved, the petitioner filed the present writ petition in the High Court of Bombay seeking to quash the lower court’s order. The High Court issued notice on 14 July 2021 and stayed the impugned order. The matter was heard finally on 13 October 2021 and judgment was reserved. The core issues before the High Court were whether the disqualification under Section 10(1D) of the MMC Act was valid without a final determination by the competent planning authority that the construction was indeed illegal under the Maharashtra Regional and Town Planning Act and Development Control Rules, and whether the election petition was maintainable on the grounds of alleged non-disclosure and criminal antecedents. The arguments centered on the interpretation of the disqualification provision and the necessity of a conclusive finding by the municipal authorities. The lower court’s order was stayed during the pendency of the writ petition. The High Court’s decision is not contained in the provided text.
Issue of Consideration
Whether the election of the petitioner as a councillor was valid, and whether disqualification under Section 10(1D) of the Maharashtra Municipal Corporation Act, 1949 can be invoked based on alleged illegal construction by his wife and non-disclosure of bank accounts and criminal cases, when the planning authority has not made a final determination of illegality.
Law Points
- Disqualification under Section 10(1D) of the Maharashtra Municipal Corporation Act
- 1949
- Requirement of final determination by planning authority under MRTP Act
- Validity of election petition under Section 16 of MMC Act
- Notice under Section 258 of MMC Act for illegal construction
Case Details
2021 LawText (BOM) (11) 27
Writ Petition No.2747 of 2021
For Petitioner: Mr.G.S.Godbole with Mr.Drupad S. Patil i/b Mr.Shon D. Gadgil and Mr.Pradeep Salgar; For Respondent No.1: Mr.Rajaram Bansode; For Respondent Nos.8-10: Mr.Vishwath Patil; For Respondent No.11: Mr.S.B.Shetye
Bhupendra Rambhau Shendge & Ors.
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Nature of Litigation
Writ Petition under Article 226 of the Constitution of India challenging the order of the Small Causes Court, Pune, which allowed an Election Petition and disqualified the petitioner from the post of Councillor under Section 10(1D) of the Maharashtra Municipal Corporation Act, 1949.
Remedy Sought
The petitioner sought to quash and set aside the judgment and order dated 29 June 2021 passed by the Small Causes Court, Pune, in Election Petition No.5 of 2017, and to set aside the disqualification from the post of Councillor.
Filing Reason
The petitioner was disqualified as a Councillor by the lower court's order, which he contended was erroneous as it was based on unsubstantiated allegations of illegal construction and non-disclosure without final determination by the planning authority.
Previous Decisions
The Small Causes Court, Pune, in Election Petition No.5 of 2017, by order dated 29 June 2021, allowed the petition and disqualified the petitioner for the remainder of his term as a Councillor, and declared the election null and void.
Issues
Whether the disqualification under Section 10(1D) of the Maharashtra Municipal Corporation Act, 1949 is attracted in the absence of a final determination by the competent planning authority that the construction is illegal under the Maharashtra Regional and Town Planning Act and Development Control Rules?
Whether the election of the petitioner was liable to be set aside on the grounds of alleged non-disclosure of bank accounts and criminal antecedents?
Submissions/Arguments
Petitioner argued that disqualification under Section 10(1D) requires a final certification by the planning authority that the construction is unauthorised/illegal, and in the absence of such declaration, the election petition was premature.
Respondent argued that the election was vitiated by the acceptance of the nomination despite objections regarding illegal construction, non-disclosure of bank accounts, and criminal offences, which warranted disqualification.
Judgment Excerpts
The petitioner came to be elected as a ‘Councillor’ in the Pune Municipal Corporation on 23/02/2017, in a contest from Prabhag No.19A, the seat being reserved for ‘Scheduled Caste’ category.
It was specifically pleaded that the status of the alleged illegal construction shall have to be certifed to be unauthorised/ illegal by the competent planning authority as per the provisions of the Maharashtra Regional and Town Planning Act read with Development Control Rules and the provisions of the MMC Act and in absence of such declaration, the petition was premature.
Procedural History
The petitioner was elected as a Councillor on 23 February 2017. An Election Petition No.5 of 2017 was filed by respondent No.1 before the Small Causes Court, Pune, challenging his election. The petition was allowed on 29 June 2021, disqualifying the petitioner and declaring the election void. The petitioner filed Writ Petition No.2747 of 2021 before the High Court of Bombay. Notice was issued on 14 July 2021, and the operation of the impugned order was stayed. The matter was heard finally on 13 October 2021 and judgment was reserved. Judgment pronounced on 29 November 2021.
Acts & Sections
- Maharashtra Municipal Corporation Act, 1949: Section 10(1D), Section 16, Section 258
- Maharashtra Regional and Town Planning Act:
