Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 2211 (BOM)

Manohar Krishna Madhavi v. Commissioner

2013-10-21

R.Y.GANOO

body2013
JUDGMENT 1. The applicant has challenged the order dated 11th August, 2006 passed by the learned Civil Judge, Senior Division, Thane in Miscellaneous Application No. 17 of 2004 filed under the provisions of Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the 'said Act') being a reference made under Section 12 r/w Section 405 of the said Act. Few facts necessary for the disposal of this Civil Revision Application are as under. 2. The applicant contested the election, which was held on 26th March 2000. The nomination for the post of a Councilor from ward no.38 was filed on 29th February 2000. The applicant was declared as elected for the aforesaid ward no.38 by declaration dated 30th March 2000. The matter was raised before the Municipal Commissioner by the present complainant by alleging that the applicant should be declared as disqualified in accordance with the provisions of Section 10(i)(f) of the said Act as the applicant had prior to filing of the nomination, entered into an agreement with the Navi Mumbai Municipal Corporation (hereinafter referred to as 'said Corporation') and the benefit of the said contract was received by the applicant and that the contract was performed during the time when the applicant was to work as a Councilor. It was also alleged by the complainant that the applicant received monies towards contractual obligations to be performed by the applicant. The said complaint was considered by the Commissioner of the said Corporation and a reference was made to the Court of Civil Judge, Senior Division, Thane as per the provisions of Section 12 r/w Section 405 of the said Act. In the course of deciding the said reference, parties had laid evidence and the main witnesses were the employees of the Corporation who have placed before the Court necessary record in relation to the complaint which was filed by the complainant. 3. The applicant was running two firms by name M/s. M.K. Constructions. It is pertinent to note that the names of these two firms are one and the same. The applicant was proprietor of the said firms. The applicant in the course of his business under the banner M/s. M.K. Constructions used to maintain dichotomy so far as these two firms are concerned with reference to the parties with whom he used to deal with. 4. The applicant was proprietor of the said firms. The applicant in the course of his business under the banner M/s. M.K. Constructions used to maintain dichotomy so far as these two firms are concerned with reference to the parties with whom he used to deal with. 4. The evidence placed before the learned Civil Judge, Senior Division i.e. trial Court was considered by the learned Judge. The learned Judge came to the conclusion that the allegations leveled against the present applicant are substantiated by the evidence on record and that the applicant has committed an act namely the applicant had entered into a contract with the Corporation and while having the benefit under the said contract, the applicant had contested the election for the post of a Municipal Councilor and had succeeded in the said election and while having the benefit under the said contract, the applicant was acting as a Councilor. The contract for construction of ward office at Sector-3 of the Corporation was allotted to the applicant's firm M/s. M.K. Construction, dealing in Government contracts. The work order was issued in favour of M/s. M.K. Construction on 21st January 2000 for Rs.69,23,041/-. The period of contract was to commence from 21st January 2000. The work was to be completed by 20th October 2000. The performance of the contract by the applicant was over on 19th May 2001. The learned trial Judge has appreciated the record and has come to the conclusion that the firm M/s. M.K. Constructions of which the applicant was a proprietor had dealing with the Corporation and despite knowledge of this fact, the applicant contested the election and started acting as a Councilor. The stand of the applicant that the applicant had transferred the rights under the said agreement to one Mr. Ajay Mhatre was rejected by the learned trial Judge primarily on the ground that the work order which was issued in favour of the applicant was not transferred and that the applicant received monies from the Corporation towards the amount receivable by the applicant for performance of his part of the contract. 5. Mr. Sakhare, learned Senior Counsel appearing on behalf of the applicant submitted that the learned trial Judge erred in declaring that the applicant incurred disqualification under Section 10(i)(f) of said Act for the election held on 26th March 2000. Learned Senior Counsel Mr. 5. Mr. Sakhare, learned Senior Counsel appearing on behalf of the applicant submitted that the learned trial Judge erred in declaring that the applicant incurred disqualification under Section 10(i)(f) of said Act for the election held on 26th March 2000. Learned Senior Counsel Mr. Sakhare appearing on behalf of the applicant took me through the provisions of Section 10(i)(f) of the said Act and submitted that even if the view taken by the learned trial Judge so far as the election, which was completed on 30th March 2000 is accepted as correct, the view taken by the learned trial Judge that the applicant is not entitled to act as a Councilor any more is incorrect. According to the learned Senior Counsel Mr. Sakhare, the view taken by the learned trial Judge as to put an embargo on the present applicant from contesting election any time in future is not supported by the provisions of the said Act or any other Act. 6. Learned Senior Counsel Mr. Sakhare further pointed out that in the impugned judgment dated 11th August 2006, no reasons are furnished in support of the order passed by the learned trial Judge by which he has declared that the applicant is not entitled to act as a Councilor any more. Learned Senior Counsel Mr. Sakhare appearing on behalf of the applicant prayed for passing appropriate orders in terms of his submissions. 7. Learned advocate Mr. Garge appearing on behalf of the Corporation took me through the record and pointed out the relevant dates, by which it was sought to be submitted that when the applicant filed the nomination for the election to be conducted on 26th March 2000, the applicant was granted a contract by Corporation in regard to construction of a building to be owned by the Corporation. He submitted that on 21st January 2000 a Work Order was issued in favour of the applicant to carry out construction activity, more particularly stated in the said order. According to learned advocate Mr. Garge on account of the said work order, the applicant could not have filed nomination for the election which was to be conducted on 26th March 2000 as per the provisions of Section 10(i)(f) of the said Act. He further submitted that the applicant while filing the nomination did not disclose anything about the work order dated 21st January 2000. Learned advocate Mr. He further submitted that the applicant while filing the nomination did not disclose anything about the work order dated 21st January 2000. Learned advocate Mr. Garge submitted that the applicant continued to have the benefit of the work order dated 21st January, 2000 after he was elected as a Councilor in as much as the payment was received by the present applicant towards the contract. Learned advocate Mr. Garge submitted that the learned trial Judge has appreciated the record in the proper perspective and has rightly declared the applicant as disqualified in the election which held on 26th March 2000. Learned advocate Mr. Garge also supported the order passed by the learned trial Judge by which the learned trial Judge has held that the applicant is not entitled to act as a Councilor any more. Learned advocate Mr. Garge drew my attention to other clauses of Section 10 of said Act where a specific embargo can be put in while declaring a particular election for a particular period as null and void and declaring that the said Councilor has incurred the disqualification and further held that the said person cannot contest the elections for certain number of years as provided in the Act for example provisions of Section 10(i) (ia) of said Act and proviso thereto. 8. Learned advocate Mr. Bhatt appearing on behalf of the complainant i.e. the person on whose complaint, a reference was made to the learned trial Judge supported the argument advanced by learned advocate Mr. Garge. 9. I have perused Section 10(i)(f) of the said Act as well as other relevant provisions which were brought to the notice of the Court by the learned advocate Mr. Garge where it is possible for the Court to put an embargo concerning contesting elections for a particular period in future. At this juncture, it would be convenient to reproduce provision of Section 10(i)(f) of the said Act, which are as under. “10(i)(f) subject to the provisions of sub-section (2), has directly or indirectly by himself or his partner any share of interest in any contract or employment with, by or on behalf of the Corporation.” 10. Applying the provisions of Section 10(i)(f) of the said Act to the facts of this case, I have perused the evidence on record as well as reasoning arrived at by the learned trial Judge. Applying the provisions of Section 10(i)(f) of the said Act to the facts of this case, I have perused the evidence on record as well as reasoning arrived at by the learned trial Judge. I have already indicated the relevant dates namely the date of allotment of work order to the present applicant, the period within which the contract was to be completed, the payments to be made to the present applicant and other relevant matters. I have also considered the stand of the present applicant that he had transferred rights under the contract to one Mr. Ajay Mhatre and the effect thereof. The learned trial Judge has considered the relevant dates and relevant documents and has rightly arrived at a conclusion that conduct of the present applicant was not well within the meaning of Section 10(i)(f) of the said Act and a declaration was required to be issued so as to disqualify the applicant concerning the election conducted on 26th March 2000. The stand of the present applicant that he had transferred the rights under the contract to Mr. Ajay Mhatre was rightly rejected. The work order issued in favour of the applicant was not transferred in the record of Corporation. Though the applicant did put up a defence that right in the contract was transferred to one Mr. Ajay Mhatre, the applicant has received monies in regard to the said contract. In view of the aforesaid discussion, I am inclined to observe that the learned trial Judge has rightly arrived at a conclusion that the reference should be answered in the affirmative and a declaration is required to be issued so far as the disqualification of the present applicant as a Councilor. It is pertinent to note that the present applicant was declared as elected on 30th March, 2000 and his tenure was upto 29th/30th March 2005. The decision to disqualify the present applicant has been rendered on 11th August 2006 i.e. after the tenure of the present applicant for the aforesaid period 2000 to 2005 has come to an end. However, issuance of such declaration has rightly been done and no interference is required in the item no.2(a) of the operative part of the order dated 11th August 2006, as well as clause 2(c) so far as necessary action to be taken in regard to disqualification of the present applicant for the period 2000 to 2005. 11. However, issuance of such declaration has rightly been done and no interference is required in the item no.2(a) of the operative part of the order dated 11th August 2006, as well as clause 2(c) so far as necessary action to be taken in regard to disqualification of the present applicant for the period 2000 to 2005. 11. The next point which is required to be considered is as regards item no.2(b) of the impugned order, by which, the learned trial Judge has observed “He (applicant) is not entitled to act as Councilor any more.” In so far as this aspect is concerned, I am inclined to accept the argument advanced by learned Senior Counsel Mr. Sakhare that looking to the provisions of Section 10(i)(f) of said Act which indicate disqualification on various counts, the provisions of Section 10(i)(f) of Act do not provide for making a declaration as has been done by the learned trial Judge in terms of clause 2(b) of the operative part of the impugned order. The argument advanced by learned Senior Counsel Mr. Sakhare as regards absence of reasons in the impugned order is also required to be accepted. If at all, the learned trial Judge was of the view that he should pass an order in terms of clause 2(b), it was absolutely necessary for him to give reasons as to why he came to the conclusion that the applicant should be prohibited from acting as a Councilor any more. To me, it appears that the learned trial Judge took upon himself the task of issuing declaration in terms of clause 2(b) as he felt that he must follow provisions of Section 10(i)(ai) of said Act, where a specific provision is made by which a particular person who is disqualified that disqualification remains in operation for a period of six years from the date of such conviction. It appears that the learned trial Judge wanted to follow the principles laid down in Section 10(i)(ai) of said Act. The provisions of Section 10(i)(f) of said Act do not provide for continuation disqualification from the date of declaration issued concerning disqualification. 12. For the aforesaid reasons, while upholding the impugned order dated 11th August 2006 in so far as clause 2(a) is concerned, I am inclined to set aside the impugned order so far as clause 2(b) is concerned. The provisions of Section 10(i)(f) of said Act do not provide for continuation disqualification from the date of declaration issued concerning disqualification. 12. For the aforesaid reasons, while upholding the impugned order dated 11th August 2006 in so far as clause 2(a) is concerned, I am inclined to set aside the impugned order so far as clause 2(b) is concerned. Clause (c) has been incorporated in the operative part of the order to enable the Commissioner for Corporation to take necessary action in accordance with the provisions of the said Act. 13. For the reasons mentioned aforesaid, following order is passed to dispose of this Civil Revision Application. ORDER (i) The order dated 11th August 2006 passed by the learned Civil Judge, Senior Division, Thane in reference Misc. Application No. 17 of 2004 so far as clause 2(a) and 2(b) is confirmed. (ii) Clause 2(b) of the operative part of the impugned judgment dated 11th August 2006 as mentioned aforesaid is set aside. (iii) There shall be no order as to costs.