Petitioner has carried out unauthorized construction, considering the
Scheme of Sections 10(1D), 11 and 12 of the MMC Act. It is
necessary for the Commissioner to come to the conclusion that as to
whether the Petitioner, being the Councillor, has carried out
unauthorized construction during his present tenure. Admittedly,
there is no such case that such construction is carried out during his
present tenure. No such action was taken in the Petitioner's earlier
tenure. The conclusion so arrived at by the Commissioner is without
any discussion on the interpretation of Section 10(1D) and whether
such construction activities were carried out during the Petitioner's
earlier tenure cannot be countenanced and cannot be the foundation
to dislodge a sitting Councillor. The Commissioner has no authority
and jurisdiction even to take such decision, without deciding the
issues/disputes for want of specific provisions, is another factor. The
drastic action of disqualification, based upon such unauthorized
construction, which is not during the present tenure, is therefore, bad
in law. Respondent No.1 cannot be permitted to add more reasons
through an affidavit in reply, in the Writ Petition, in this regard.
11 The fact that the construction is still in existence, in our
view, cannot be the reason to dislodge the elected Councillor without
following due procedure of law and by not referring the
matter/proposal to the General Body of the Corporation for making a
reference to the Judge.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3707 OF 2016
Shri Mallesh Shivan Shetty
Vs.
The Commissioner,
Kalyan Dombivali Municipal
Corporation Kalyan.
CORAM : ANOOP V. MOHTA AND
A.A. SAYED, JJ.
DATE : 6 APRIL 2016.
Citation: 2016 (5) ALLMR 432
