Sampada Yogesh Waghdhare vs The State of Maharashtra & Ors.

1.2 The second limb of Section 44(1)(e) provides that if a Councillor had directly or indirectly been responsible for or helped in his capacity as such Councillor in carrying out such illegal or unauthorized construction, the Councillor becomes amenable for action under Section 44(1)(e). The second limb does not deal with the construction by the Councillor, spouse or dependent. But insofar as any such illegal or unauthorized construction is carried out resulting in the Councillor being disqualified is concerned, the direct or indirect involvement of the Councillor or his help in the matter has to be established. It has to be established that the Councillor has been directly or indirectly responsible or helped in his capacity as such Councillor in carrying out of illegal or unauthorized construction. [Para 10][220-G-H; 221-A-B]

1.3 The third limb of Section 44(1)(e) has the following effect: If a Councillor by a written communication obstructed or tried to obstruct any competent authority from discharge of his official duty in demolishing any illegal or unauthorized construction, the Councillor would incur disqualification under Section 44(1)(e). The last limb would also be attracted if the Councillor has physically obstructed or tried to obstruct any competent authority from discharging its official duty in demolishing any illegal or unauthorized construction. [Para 10][221-B-D]

1.4 Thus the Legislature has apparently distinguished between illegal or unauthorized construction, illegal or unauthorized structure being constructed by the Councillor’s spouse or by dependents as it was the legislative intention that the Councillor will not carry out any such construction and he would also be in a position to prevent construction either by his spouse or a person who is dependent on him. The fact that embargo is against the construction by the dependent and not any relative or person not dependent on him would also indicate that illegal construction by the spouse or dependent stand on a different footing from persons who may not be so closely related to the Councillor. [Para 10][221-D-E]

1.5 The words “such illegal or unauthorized construction” occurring in the second limb of Section 44(1)(e) could be said to refer to the construction made by the Councillor, his spouse or the dependent, and in such a case, the words “directly or indirectly responsible for” and the words “or helped in his capacity as Councillor”, would have to be applied. Such an interpretation would produce unreasonable results. When the Councillor constructs by himself, the words “or has directly or indirectly responsible for”, “or helped in his capacity as such Councillor” does not bear any meaning. The plain meaning of the first limb of Section 44(1)(e) is that in the case of construction by the Councillor himself, which is illegal, it would result in disqualification being incurred. The requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out such construction in the capacity of Councillor in the case of the spouse or dependent also is not the statutory requirement. Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words “carrying out such illegal or unauthorized construction” has reference to construction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions. [Para 11][221-F-H; 222-A-B]

1.6 It is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However, Section 44(1)(e), which is ordained by the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play. [Para 12][222-C-D]

1.7 If temporary constructions are made it would also fall within the mischief of Section 44(1)(e). In other words, if temporary construction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows. In fact, more than one temporary construction was actually made. The order of the Collector would show that as per the report of the Sub Divisional Officer, the constructions were carried out, and out of which, 5 were temporary and which were no doubt removed. [Paras 14 and 16][222-G; 223-F-G]

2. It is not correct that as unauthorized construction also brings in its wake criminal action, action under Section 44(1)(e) will not lie. Section 44(1)(e) creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is nothing brought to the notice of the Court to conclude that action under Section 44(1)(e) must be preceded by a criminal action and conviction thereunder. Section 44(1)(e), as it stands, is neither dependent on a criminal action preceding it nor is the court to be influenced by the fact that making an unauthorized construction will have penal consequences. [Para 15][222-H; 223-A-C]