Case Note & Summary
The petitioner, Mrs. Sunita Vilasrao Salukhe, was elected as President of the Pandharpur Municipal Council on 10.12.2001 under Section 51 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the Act). She was disqualified under Section 44(1)(e) of the Act on the ground that she, along with her husband Vilasrao, directly or indirectly constructed an unauthorised structure on land belonging to a trust in which her husband is a trustee. The order of disqualification was passed by the Collector and confirmed by the State Minister for Urban Development in Appeal No.3856 of 2005 on 22.8.2005. The petitioner challenged this order by way of a writ petition before the Bombay High Court. The court examined the language of Section 44(1)(e), which disqualifies a councillor who 'has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure'. The court noted that the provision requires the councillor himself or through his spouse or dependent to have constructed the structure. In this case, the land belonged to a trust, and the petitioner's husband was merely a trustee. There was no evidence that the petitioner or her husband personally constructed the structure; the construction was by the trust. The court held that the disqualification could not be sustained as the provision must be strictly construed, being penal in nature. The court allowed the petition, quashed the impugned orders, and directed that the petitioner be reinstated as President of the Municipal Council.
Headnote
A) Municipal Law - Disqualification of Councillor - Section 44(1)(e) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Interpretation of 'constructs by himself, his spouse or his dependent' - The provision requires that the councillor himself or through his spouse or dependent must have constructed the illegal structure; mere relationship with a trustee of the trust that owns the land is insufficient to attribute the construction to the councillor. The court held that there was no evidence that the petitioner or her spouse constructed the structure; the spouse was only a trustee of the trust, and the construction was by the trust. (Paras 4-5) B) Municipal Law - Strict Construction of Penal Provisions - Section 44(1)(e) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Disqualification provisions being penal in nature must be strictly construed. The court held that the disqualification cannot be sustained without clear evidence of the councillor's involvement in the illegal construction. (Para 5)
Issue of Consideration
Whether the petitioner, as a councillor and President of the Municipal Council, can be disqualified under Section 44(1)(e) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, for an unauthorised construction on trust land where her husband is a trustee, without evidence of her direct or indirect involvement in the construction.
Final Decision
The court allowed the writ petition, quashed the order dated 22.8.2005 passed by the State Minister for Urban Development and the order of disqualification under Section 44(1)(e), and directed that the petitioner be reinstated as President of the Pandharpur Municipal Council.
Law Points
- Disqualification under Section 44(1)(e) requires direct or indirect involvement of the councillor in the illegal construction
- mere fact that spouse is a trustee of the trust owning the land does not establish the councillor's involvement
- the provision must be strictly construed as it is penal in nature
