SAMPADA YOGESH WAGHDHARE versus THE STATE OF MAHARASHTRA & ORS.

Citation: [2019] 6 S.C.R. 215 · Decided: 22-04-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

Judgment (excerpt)

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SAMPADA YOGESH WAGHDHARE
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No.4056 of  2019)
APRIL 22, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Maharashtra Municipal Council Nagar Panchayat and
Industrial Township Act, 1965:
ss. 44(1)(e) – Disqualification under – For unauthorized
construction by the spouse of the Municipal Councillor/President
of the Council – Held: Disqualifying a Councillor i.e. a
democratically elected representative is a serious matter and the
case against such person must be strictly proved – However, s.
44(1)(e) requires reasonable interpretation – If ingredients of the
provision are established it must be given full play – Illegal
temporary constructions/structures made by the Councillor, spouse
or dependent would fall within the mischief of s. 44(1)(e) resulting
in disqualification of the Councillor.
s. 44(1)(e) – Nature of – Held: Section 44(1)(e)  creates an
independent liability – The provision 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.
Dismissing the appeal, the Court
HELD:1.1 Section 44(1)(e) of Maharashtra Municipal
Council Nagar Panchayat and Industrial Township Act, 1965 falls
in three parts.  The first limb of Section 44(1)(e) declares inter
alia that if a Councillor has constructed or constructs by himself
[which would also include a construction by a lady Councillor], it
would invite the wrath of the provision and it suffices to disqualify
the Councillor. This is no doubt subject to construction being
illegal or unauthorized, that is, in violation of the provisions of
Maharashtra Municipal Council Act or Maharashtra Regional or
Town Planning Act or the rules or bye-laws made under the said
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
Act.  Further, in order to attract the first limb, it is sufficient if the
spouse of the Councillor or the dependent carries out any illegal
or unauthorized construction as aforesaid. In short, if the
Councillor, his spouse or dependent carries out any illegal or
unauthorized construction as aforesaid, it suffices to incur
disqualification for the Councillor.  The policy underlying Section
44(1)(e) is to ensure that the highest level of probity is maintained
by the Councillor and nearest members of the Councillor’s family.
It does not require the Councillor knowing the fact
of the construction being made by her spouse or dependent.
[Paras 8 and 9][220-B-G]
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
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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 dependen

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