Case Note & Summary
The petitioner, Umesh Deorao Pawale, was elected as a councillor of Nanded Waghala City Municipal Corporation in 2012. His election was challenged by an election petition under Section 16 of the Maharashtra Municipal Corporation Act, 1949, on the ground that he had more than two children, which disqualified him under Section 10(1)(i) of the Act. The civil court set aside his election, and the order was confirmed up to the Supreme Court. In 2017, the petitioner again contested the general elections. An objection to his nomination on the same ground of having more than two children was rejected by the Returning Officer, and that rejection remained unchallenged. The petitioner was elected again, and no election petition was filed by any defeated candidate or voter. However, the Municipal Commissioner, on his own motion, passed an order dated 24.8.2019 disqualifying the petitioner under Section 12 read with Section 10(1)(i) of the Act. The petitioner challenged this order by way of a writ petition. The court examined the scope of Section 12 of the Act and held that it does not empower the Commissioner to suo motu disqualify a councillor on grounds under Section 10(1)(i). Such disqualification can only be adjudicated in an election petition under Section 16 of the Act. Since no election petition was filed, the Commissioner's order was without jurisdiction and was quashed. The court allowed the writ petition and set aside the disqualification order.
Headnote
A) Municipal Law - Disqualification of Councillor - Section 12 read with Section 10(1)(i) of Maharashtra Municipal Corporation Act, 1949 - Commissioner's power to disqualify - The Commissioner passed an order disqualifying the petitioner-councillor on the ground of having more than two children under Section 10(1)(i) of the Act, exercising powers under Section 12 of the Act. The court held that Section 12 only empowers the Commissioner to decide questions regarding disqualification under Section 10(1)(i) when such question arises during the course of proceedings under Section 12 itself, but not to initiate disqualification suo motu. The disqualification under Section 10(1)(i) is a substantive disqualification that can only be adjudicated in an election petition under Section 16 of the Act. The Commissioner's order was without jurisdiction and quashed. (Paras 1-10) B) Municipal Law - Election Petition - Section 16 of Maharashtra Municipal Corporation Act, 1949 - Remedy for challenging election on ground of disqualification - The court observed that the remedy to challenge an election on the ground of disqualification under Section 10(1)(i) is by way of an election petition under Section 16 of the Act. Since no election petition was filed by any defeated candidate or voter, the election of the petitioner stood valid. The Commissioner cannot assume jurisdiction to disqualify the petitioner in the absence of an election petition. (Paras 2-10) C) Municipal Law - Interpretation of Statutes - Section 12 of Maharashtra Municipal Corporation Act, 1949 - Scope of Commissioner's power - The court interpreted Section 12 and held that it is a procedural provision for deciding questions as to disqualification when they arise in the context of a councillor's continuing disqualification, but not for initiating disqualification on grounds that were available at the time of election. The Commissioner's action was held to be without authority of law. (Paras 5-10)
Issue of Consideration
Whether the Municipal Commissioner has the power under Section 12 of the Maharashtra Municipal Corporation Act, 1949 to disqualify a councillor on the ground of having more than two children under Section 10(1)(i) of the Act, when no election petition was filed challenging the election.
Final Decision
The writ petition is allowed. The impugned order dated 24.8.2019 passed by the Commissioner, Nanded Waghala City Municipal Corporation, disqualifying the petitioner under Section 12 read with Section 10(1)(i) of the Maharashtra Municipal Corporation Act, 1949, is quashed and set aside. Rule is made absolute accordingly. Civil applications are disposed of.
Law Points
- Section 12 of Maharashtra Municipal Corporation Act
- 1949 does not confer power on Commissioner to disqualify a councillor on grounds under Section 10(1)(i) of the Act
- Suo motu disqualification by Commissioner is without jurisdiction
- Disqualification under Section 10(1)(i) can only be adjudicated in an election petition under Section 16 of the Act
- Rejection of nomination objection on same ground does not bar election petition but Commissioner cannot bypass that remedy
