Avinash Ramesh Bagwe v. Bhupendra Rambhau Shendge

12. On receipt of the notice under Section 258 of the MMC Act, Smt.Indira Bagwe submitted her reply on 14/12/2016, (Exh.112) where an explanation is offered by stating that House Nos.[4] and 5 and adjoining open land admeasuring 1469 sq.ft. in Ramchandra Gurudasmal Society, Building No.2 is purchased by her in January 2013. The said property which was in existence since last two decades was sought to be repaired by forwarding a proposal to the Municipal Corporation on the basis of the documents alongwith the photographs available with the original owner. The concerned offcers of Building Development Department, Zone 3 of the PMC, after carrying out actual spot inspection, granted the permission for carrying out repairs on 12/05/2014. It was also submitted by Mrs.Bagwe that in Bhai Ramchandra Gurudasmal Society, there are three building and the plans of Building No.2 are approved by approval letter No.2324 dated 20/02/1987. However, the original layout plan of the entire society and all the proposals of all the buildings are not available, in-spite of frantic search either with the society or offce of the Municipal Corporation. A specifc stand is taken by Mrs.Bagwe that she has merely repaired the structure, which was standing since last two decades and has not carried any new construction. It is specifcally pleaded that the construction of the room located at the back side is done in the area of 1469 sq.ft. owned by her, after obtaining due permission from the society and the Corporation and what is undertaken is merely the repairs. Reiterating that there is no new construction, no-objection is given for levying compounding fee and following the procedure of the Corporation, if it is found desirable. What has further come on record is the document at Exh.132, which is an approval granted to the proposal forwarded by Sou.Indira Bagwe through her Architect Pramod Deshpande on 29/05/2017, in which, notice issued under Section 258 on 29/11/2016 is proposed to be recalled, by charging compounding fee of Rs.5,43,895/- for regularizing the unauthorised construction undertaken by the applicant. The said proposal under the signatures of the Superintendent Engineer, the Executive Engineer, the Deputy Engineer and the Building Inspector of Zone 7 of the PMC is addressed to the City Engineer of the Corporation. The said communication refects the preceding events, about obtaining the permission for effecting repairs by a letter from the Corporation dtd. 20/01/1987. It makes a reference to the proposal from Mrs.Indira Bagwe through Architect Harish Wagh on 03/03/2014 for repairs and thereafter by substituting the said Architect with Mr.Rajesh Shinde, the plans of the proposals are forwarded, which have been approved on 12/05/2014 and the repairs are permitted in form of putting AC sheets on the existing shed in form of gymnasium, located at the back side of the Nursery room. This approval was granted on the basis of the submission that the shed was granted approval as per map dated 20/02/1987, but in fact, there is no shed in the earlier map. By referring to the proposal for regularizing the said construction by imposing compounding fee, the proposal is taken up for consideration and it has been processed as per the existing regulation, with the following remarks: “The proposers have undertaken the construction, without approving the plans and, therefore, in terms of the Circular dated 16/06/2011, by charging compounding fee to the extent of 50% of the cost of construction as per ready-reckoner dated 16/06/2011, the unauthorised construction is sought to be regularized. Accordingly, since 44.95 sq.mtrs. of construction has been made without permission, 44.95 sq.mtrs. X Rs.24,200/- X 50% = Rs.5,43,895/- should be the compounding fee, which will have to be levied. However, since a notice was issued under Section 258 of the the MMC Act, 1949 on 29/11/2016 for getting a proposal for repair of the house approved by projecting that there is a shed on the gymnasium, which is approved but which was factually incorrect and, therefore, the said notice will have to be recalled.”

13. On 22/09/2017, the proposal was moved before the Commissioner of the PMC, recording that the unauthorised structure erected parallel to the Nursery room in the fat with width of 1.50 meters, is requested to be regularized by charging compounding fee for the unauthorised structure of

51.16 sq.mtrs. The calculations for charging the compounding fee were worked out by noting that the proposers have erected construction, without permission, in the open space other than the one which was pointed out in the approved plan and, for regularizing the said unauthorised constructions, compounding fee of Rs.6,19,036/- will be levied. The calculations are also forwarded to the Commissioner and the amount of development charges is also proposed to be accepted. The proposal sought for the following compliances:- (1) The original proposal for building construction of the society, being not available with the offce, further proceedings shall be carried out a per the measurements submitted by the Architect; (2)The proposal to be approved in terms of the new DC Rules 2017 as regards the additional construction and granting concession for maintaining the distance; (3)Notice issued under Section 258 of the MMC Act shall be withdrawn; (4)By accepting compounding fees of Rs.6,19,036/-, the construction erected, without authority be regularized; The aforesaid communication is exhibited as Exh.134. A similar letter was again addressed to the City Engineer for cancellation of notice dated 29/11/2016 issued under Section 258(1) of the MMC Act. The receipts of the amount deposited by Mrs.Indira Bagwe are also placed on record and exhibited as Exh.138. Another communication addressed to the Executive Engineer of the Building Department, which is at Exh.139, grants approval to the total amount to be deposited by Mrs.Indira Bagwe, with the infrastructure charges and the development charges in respect of the approved gymnasium (28.83 sq.mtrs.). The total amount has been estimated to be Rs.5,76,464/-. On the very same document, the following endorsement is made:- “Compounded Subject to conditions as per Government of Maharashtra Notifcation No.TPS 1814/CR-82/14/Rules/ UD-13, dt.07/10/2017. Compounded Under Compounding Certifcate No.CC/0043/18 dated 9/4/2018.” The further endorsement by the Executive Engineer is to the following effect:- “Permission is received to recall the stop-work notice issued by the City Engineer on 22/3/2018. By accepting the necessary charges for compounding of the structure as per GR, proposal is approved.” In furtherance of the aforesaid permission, a Commencement Certifcate was also granted in favour of Smt.Indira Bagwe and on completion of the action, the report is again forwarded to the Municipal Commissioner, reiterating that compounding has been allowed and the necessary amount for regularization of 22.33 sq.mtrs. has been received.

14. The aforesaid correspondence is brought on record through the evidence of Prashant Waghmare, City Engineer, PMC, examined as a witness on behalf of the Election Petitioner and it has been exhibited. In the cross-examination, the witness has admitted that the applications were received in respect of unauthorised construction by Smt.Bagwe and the existing structure of Smt.Bagwe was allowed to be repaired by granting permission by the Corporation. But, there was an objection in respect of the permission for repair granted in favour of Smt.Bagwe. It is admitted by the witness that, in terms of a Notifcation dated 07/10/2017 at Exh.121, which is applicable to the constructions made prior to 31/12/2015 and the structures, which can be compounded, are permitted to be compounded. In view of the compounding fee, being deposited by Smt.Bagwe, the objections about her unauthorised construction become Nil is specifcally admitted by the witness. He also admits that the structure was never declared as unauthorised and when the date of the election of the Corporation was declared i.e. 21/02/2017, the aforesaid structure was not declared as unauthorised.

15. With the aforesaid evidence being brought before it, the learned Judge, Small Causes Court, Pune records that the structure erected by Smt.Bagwe is an unauthorised structure and it was compounded in terms of the Notifcation issued by the State Government on 07/10/2017, which permitted its regularization, on payment of compounding charges. On consideration of the aforesaid documents brought on record, the learned Judge has recorded his inference in the following words:- “40. It seems to be admitted position in the present case that the respondent no.1 has been elected as a Councillor in the year 2017 as well as he was Councillor for the earlier period of 5 years from 2012 to 2017. Considering the reliable documentary evidence on record, it is quite clear that the unauthorized construction was existing even in earlier tenure of 5 years of respondent no.1 as Councillor of the P.M.C. and it continued till 28.03.2018, the day on which the respondent no.1 paid compounding charges as assessed by P.M.C. for regularization of the unauthorized construction. So, in this scenario, the ratio laid down in the case of Jagdishchandra (Supra) covers the facts and circumstances of the present case and it can be made applicable.

43. Over all oral testimony of the petitioner, which has been strontly supported by the documentary evidence for the poof of objection regarding disqualifcation of the respondent no.1 for being a Councillor, appears to me to be reliable and trustworthy to hold that since the respondent no.1 has constructed unauthorized structure by misrepresenting the fact to the P.M.C. and disqualifcation under section 10(1D) of the M.M.C. Act is rightly attracted. It is also signifcant to note that despite such action of issuance of the notice under section 258 of the M.M.C. Act in the year 2016, the respondent has clearly avoided to disclose said fact in the nomination form. In this backdrop, the acceptance of the nomination form of the respondent no.1 and rejection of the objection raised by the petitioner in that regard before Returning Offcer, appears to me to be illegal and beyond the provisions of law. Resultantly, declaring the respondent no.1 elected candidate for the post of Councillor also become to be illegal and void.

46. The provision under section 10(1D) of the M.M.C. Act speaks about moral duty on the part of Councillor and it is expected that he shall work for welfare of citizens without bias and vested interest. The purpose and paramount object of the said provision would be totally frustrated, if the acts of such Councillor are pardoned. The recovery of revenue by imposing compounding charges to such unauthorized construction would later on term those construction as authorized or legal one after payment of compounding charges, but that does not wash out the blot of unauthorized construction, which was existing prior to the regularization. So, in this way, I am not convinced by the submissions of the counsel for the respondent no.1 that the retrospective effect to the said notifcation made the allegation raised by the petitioner in this regard as nullity.” In the wake of the aforesaid observations recorded by the learned Judge, he conclude by holding that the petitioner got himself elected as a Councillor though he was not qualifed to be a Councillor, in view of the provisions of Section 10(1D) of the MMC Act and such wrongful acceptance of his nomination form is a material irregularity in the election procedure, by which the election is vitiated and liable to be declared as invalid.

16. The learned counsel for the petitioner Mr.Godbole would urge that the above fnding is perverse, not based on material placed on record and the learned Judge is entirely wrong in rendering a fnding that the case is covered by Section 10(1D) of the MMC Act. He would submit that the two fats were purchased by the wife of the petitioner on 14/03/2013 and on an application, seeking permission for repairs of the suit structure, it was granted and with due permission of the Corporation, necessary repairs were carried out in the suit structure. His submission is to the effect that there is no evidence brought on record that the construction of unauthorised structure was carried out by his wife and in fact, the entire correspondence, according to the learned counsel Mr.Godbole, would reveal that the structure was already standing, when the property was purchased by her. Without any demur, whether the construction was authorised or not, an offer was made, assuming that it was unauthorised, and if it can be regularized as such, all the while by maintaining the stand, that there was a shed already in existence and, that is why the development charges for the pre-existing shed was also levied. As per the learned counsel, the illegality alleged and held to be proved is that the petitioner did not disclose issuance of notice under Section 258 of the MMC Act when he fled the nomination. His submission is that under Section 10(1D) of the MMC Act, the disqualifcation shall be incurred from the date of declaration of the structure as unauthorised by the competent authority and as far as the proceedings initiated under Section 258 in respect of the said structure is concerned, they have been dropped and no declaration was ever issued to that effect. Another point which the learned counsel would vehemently urge, is to the effect that if he was disqualifed in his earlier term, since it is alleged that the unauthorised construction was made in the year 2014, then in the new term which commenced from the year 2017, he being declared as a Councillor from 23/02/2017 the disqualifcation gets wiped out and cannot be carried forward as it is not permanent disqualifcation, unlike some other clauses in Section 10, but shall continue for remainder of the term of the Councillor and if clause 10(1D) is carefully read, he cannot be disqualifed for the alleged construction which has taken place prior to his present term as a Councillor. In any case, the submission is that there is no material irregularity which would warrant election to be set aside and the learned Judge has completely erred in assuming that he had incurred a disqualifcation.

17. Per contra, learned senior counsel Mr.Dhakephalkar appearing for the respondent No.1, would urge that the structure is unauthorised and being conscious of this fact, the petitioner’s wife compounded it by paying compounding charges. He would invite my attention to the relevant provisions of the MRTP Act, including the defnition of ‘compounded structure’ as well as the provision inserted in the said enactment in form of Section 52A. The submission advanced is to the effect that the process to declare the structure illegal, was intercepted on depositing the compounding charges by Smt.Indira Bagwe, admitting that the structure was unauthorised. By referring to the time-line of events, the learned counsel would submit that the spirit underlying Section 10(1D) of the MMC Act will have to be kept in mind and since, the Corporations and the Municipalities are daunting the unauthorised construction, the provision is introduced and, therefore, a Councillor, who carry out an unauthorised construction either by himself or through his spouse, is not competent to hold the post of Councillor and shall be disqualifed, by invoking the provision contained in Section 10(1D). He has placed reliance on the full bench judgment of this Court in case of Tilottama w/o Sanjay Kinkhede Vs. Municipal Commissioner, Nagpur & Ors.1, which has settled the position revolving around Section 10(1D) of the MMC Act and in the wake of the said position, the submission is that it does not lie in the mouth of the petitioner to submit that if the construction is prior to his election, he will not incur 1 2021(2)Mh.L.J.685 a disqualifcation, when the structure was compounded during his tenure as a Councillor.

18. On a careful scrutiny of the material placed, including the impugned judgment, which is assailed in the writ petition and on thoughtful consideration of the arguments advanced by the respective counsel, in light of the provision if form of Section 10(1D) of the MMC Act, I express my concurrence with the learned Judge of the Small Causes Court, Pune, who has declared the petitioner to be disqualifed in light of Section 10(1D) of the MMC Act. Reasons for reaching the aforesaid conclusion is culled out in the subsequent paragraphs.

19. The proceedings against Mrs.Bagwe, were initiated by issuance of notice under Section 258 of the MMC Act, which reads thus: “258. Power to Commissioner to cancel permission on the ground of material misrepresentation by applicant. If at any time after permission to proceed with any building or work has been given under the rules, the Commissioner is satisfed that such permission was granted to consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under section 253 or 254, or of further information, if any, furnished, he may cancel such permission, and any work done thereunder shall be deemed to have been down without his permission.” The said provision contemplates that whenever a permission is granted to carry out any work of the building and the Commissioner is of the opinion that such permission was granted on account of any material misrepresentation or fraudulent statement or information furnished, he is competent to cancel such permission and any work done without permission. The documents referred to above, clearly refect the accusation levelled against Mrs.Bagwe and her Architect by the City Engineer, by alleging that when the permission was granted by the Corporation, for repair on 12/05/2014, an impression was given that there was an existing shed, which statement on comparing the approved plan dtd.20/02/1987, is prima facie incorrect. The show cause notice therefore was asked to show cause as to why the said permission shall not be cancelled. The said notice exhibited as above was responded and the response is already refected in the other communications. Whether these proceedings would be suffcient to attract the wrath of disqualifcation is to be determined.

20. Section 9 of the MMC Act prescribes the qualifcation for election as Councillor whereas Section 10 of the Act prescribes for the disqualifcation for being a Councillor. Section 10(1D) is one of the such clauses which will entail disqualifcation for being a Councillor and the said Section is inserted by the Maharashtra Act 11 of 2002, the intent being to prevent a person, elected as a Councillor, from misusing his offce. The disqualifcation would fall not only if a Councillor himself undertakes such illegal construction, but even when his spouse or his dependent has constructed or construct any illegal or unauthorised structure, violating the provisions of the Act or the Maharashtra Regional and Town Planning Act or the Rules or bye-laws framed under the said Act or even he is directly or indirectly responsible or assisted in his capacity as Councillor in carrying out such construction. The intention of the Legislature, which clearly surfaces is, to avoid likelihood of confict between a duty of a Councillor and his interest.

21. The word “has constructed” is sought to be interpreted referring to an unauthorised structure erected by a Councillor after his election and then only the disqualifcation would fall. The use of phrase “has constructed” signifes the intention of the Legislature to disqualify such a person who has erected unauthorised structure in the past when he was not a Councillor. The interpretation of the word “has constructed”, as employed in Section 10(1D) came up for consideration before the Full Bench of this Court in case of Tilottama Vs. Municipal Commissioner, Nagpur (supra), in the wake of the existing diversion views. The three points were formulated by the Full Bench and the two points relevant for consideration are as under: "(A) Whether the expression 'has constructed' as used in Section 16 (1D) of the BMC Act and Section 10 (1D) of the MMC Act would include an unauthorized/illegal construction, erected by a Councillor, before being elected as a Councillor so as to attract the disqualifcation ? (B) Whether the expression "has constructed" would include an unauthorized construction already in existence, when acquisition of the property is made by the Councillor, whether before or after he assumes offce as a Councillor ?

22. The Full Bench on consideration of the rival contentions has recorded as under:- “20…….While considering the point, we deliberated on the issue as to whether the activity of constructing the illegal or unauthorized structure just prior to election would be a disqualifcation for being a Councillor or such illegal activity if undertaken long prior to the election would also be a disqualifcation. In our view, a time lag between construction of the illegal or unauthorized structure and election of the Councillor would not be relevant. Whether the illegal or unauthorized structure is constructed long back prior to the election or just before the election would not make any difference and in either case it would be a disqualifcation for being a Councillor. We answered Point (A) accordingly.

21. While deliberating on Point (A) as formulated for reference, we realized that further point interlinked with Point (A) as formulated for reference, is required to be considered, hence, we formulate following additional point for consideration: "Whether a Councillor is disqualifed from being a Councillor if he has undertaken construction of illegal/ unauthorized structure before acquisition of the property in question?"

22. There may be instances where illegal/unauthorized construction is made by the Councillor, his spouse or his dependent before acquiring title over the property in question. In such case, the Councillor will incur disqualifcation as per Section 10(1D) of the Maharashtra Act No.LIX of 1949. The emphasis is on the fact as to who has made illegal/unauthorized construction, and whether the Councillor, his spouse or his dependent has title over the property would not be relevant. In a given case, a Councillor, his spouse or his dependent may construct illegal/unauthorized structure on rented premises. In such case also the Councillor will incur disqualifcation as per Section 10(1D) of the Maharashtra Act No.LIX of 1949. There may be a situation where the Councillor, his spouse or his dependent may be an encroacher and responsible for illegal/ unauthorized construction. In such case also the Councillor will incur disqualifcation as per Section 10(1D) of the Maharashtra Act No.LIX of 1949.”

23. The Full Bench summarized the points of reference by offering the following answers. I) AS TO POINT (A): We hold that the expression "has constructed" used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would also include an illegal/unauthorized construction erected by the Councillor before being elected as a Councillor so as to attract disqualifcation; II)

AS TO POINT (B): We hold that the expression "has constructed" used in Corporations Act, 1949 would include an illegal/unauthorized construction made by the Councillor, his spouse or his dependent, even if such illegal/ unauthorized construction is made before acquisition of the property by the Councillor, his spouse or his dependent. The expression "has constructed" used in Corporations Act, 1949 would not include an illegal/unauthorized construction made by any person other than the Councillor, his spouse or his dependent before acquisition of the property is made by the Councillor, his spouse or his dependent. However, the expression "has constructed" would include an illegal/unauthorized construction made by the Councillor, his spouse or his dependent even before acquisition of the property by the Councillor, his spouse or his dependent.

24. The clear position of law which emerges from above is, to the effect that if the Councillor has erected an unauthorised structure even before his election as a Councillor, he will entail a disqualifcation. The intention of the Legislature was to enable the Corporation to effectively tackle the growing menace of the illegal construction; one of the mandatory duty of the Corporation, as a legal body and a planning authority being to prevent the erection of unauthorised construction and carrying out its demolition. If a person, who is elected as a Councillor himself indulge in such an act or erect such illegal or unauthorised structure, either by himself or by his spouse or dependent, there is likelihood of a confict between his duty, as a Councillor and his interest in retaining the unauthorised structure. Thus, the Legislature consciously used the phrase “has constructed” or “constructed”. The intention of the Legislature must fnd its full way when a person is disqualifed by taking recourse to the said provision.

25. When the facts of the present case are perused on the basis of the documents to which I had referred to in the foregoing paragraphs, the position becomes clear. The notice was received by the wife of the petitioner under Section 258 of the MMC Act and the correspondence exchanged with the Planning Authority on her own as well through her Architect and the City Engineer, which resulted in withdrawal of the notice on account of the willingness expressed by her to compound the unauthorised structure. The correspondence placed on record clearly indicates that at one point of time, the stand was taken by Mrs.Bagwe that there was no unauthorised construction, but what was carried out was only repairs, with the permission of the Corporation. But, in the very next breath, the contest was given up and it was conceded that if the Corporation is of the view that the structure is unauthorised, by charging compounding fees, the structure can be compounded/regularized. A full- fedged exercise carried out by the Corporation to work out the proposal coming from Mrs.Bagwe and her Architect to regularize the unauthorised structure, resulted in withdrawal of notice under Section 258 and on accepting the compounding fee, the illegality came to be cured. The structure which was otherwise proposed to be declared as illegal, came to be declared as ‘compounded’. The power for compounding the unauthorised structure of Mrs.Bagwe, which has been exercised by the Authority, is the one which fow from the Notifcation issued by the Urban Development Department on 07/10/2017 in form of the Maharashtra Town Planning (Compounded Structures) Rules,

2017. The said Rules were brought into force for regularizing the unauthorised developments carried out on or before 31/12/2015 within the jurisdiction of Local Authority/Planning Authority and New Town Development Authority constituted under Section 113 of the MRTP Act. Clause (5A) of Section 2 of the said Act defnes the “compounded structure” as under:- “compounded structure” means any development of land in respect of which the compounding charges, infrastructure charges and premium as levied by the Collector under the provisions of sub-section (2B) of section 18 or by the Planning Authority under Section 52A, are paid by the owner or occupier of such structure and which upon such payment has been declared as compounded structure by the Collector or Planning Authority, as the case may be.” The above defnition necessarily leads me to Section 52A, which reads thus:- “52A. Provisions relating to certain developments as compounded structure (1) Notwithstanding anything contained in this Act or any other law, for the time being in force, or in any judgment, order or direction of any Court where unauthorised development has been carried out on or before the 31st December 2015, in the area of Development Plan, the State Government may, upon the request of the Planning Authority, specify the terms and conditions, not inconsistent with the rules made in this behalf, on compliance of which and the compounding charges, infrastructure charges and premium on payment of which, the Planning Authority may declare such development as compounded structure. (2) On declaration of such development as compounded structure under sub-section (1), no further proceedings under any law for the time being in force against the owner or occupier of such structure shall be taken or continued. Provided that, no further development shall be permissible in any compounded structure, other than repairs and maintenance, and any development or reconstruction of such structure shall be only as per the provisions of the prevailing Development Control Regulations.”

26. The Rules of 2017 set out the types of the unauthorised development, which would be considered for declaration as compounded structure and it also set out the conditions subject to which the compounding is permissible. Sub-rule (8) of the said Rules reads as under:- “8. Unauthorised developments (Residential or other use) which is carried out in Residential or Commercial or Publicsemipublic or Industrial Zone in violation of Regulation on the following grounds may be considered for declaration as compounded structure after taking into consideration the parameters specifed in the table annexed to these rules,-

(i) Floor Space Index (F.S.I.);

(ii) Height of building;

(iii) Marginal open spaces;

(iv) Coverage;

(v) Road width; or

(vi) Other development control matters provided in the table annexed to these rules.” The above Rules allow every Planning Authority to consider the applications received after coming into force the Rules and on consideration of the parameters, permit retention or continuation of the unauthorised development or its use, by charging and recovering premium, infrastructure charges and compounding charges and upon such payment, the Planning Authority may declare the unauthorised structure as compounded one.

27. By taking recourse to the said Rules, the structure erected by Mrs.Bagwe, the wife of the petitioner, has been compounded. The procedure for declaring the structure as illegal was interrupted by the proposal given by her, accpeting that the structrue is unauthorised and, therefore, requesting it to be compounded, and the authorities at her request, did exercise the powers available to them. There is no gainsay in submitting that since Section 10(1D) prescribes the period of disqualifcation to be for the remainder of the term of a Councilor from the date of declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the Act or as the case may be, since it is only on the proposal of Mrs.Bagwe, which was accepted by the Municipal Authorities, being convinced that the structure was unauthorised and, hence, it was permitted to be compounded by taking recourse to the Maharashtra Town Planning (Compounded Structures) Rules, 2017 and by accepting the necessary charges.

28. If the argument of learned counsel Mr.Godbole, that since the stage of the structure being declared as illegal or unauthorised did not reach and there is no declaration to that effect and, therefore, disqualifcation would not fall upon the petitioner is to be accepted then the whole purpose in enacting Section 10(1D) shall stand defeated. The action of declaring the structure as unauthorised one was initiated by issuance of notice under Section 258, but the said process was interrupted by a proposal from Mrs.Bagwe to compound the unauthorised construction by showing willingness to pay the necessary charges required for its retention and on invoking the powers available to the Municipal Authorities, the structure has been compounded. This can, in no way, absolve the proposer from the accusation of raising an unauthorised or illegal structure. The said submission of Mr.Godbole therefore do not deserve any consideration. Further, the similar submission that since the construction is of the year 2014, it will not spell its shadow on his present tenure as a Councillor from 2017 also do not deserve any consideration, since the construction is made prior to his terms as a Councillor from 2017, but it is compounded during his tenure and to be precise, on 09/04/2018 when the compounding certifcate is issued as per Notifcation dated 07/01-10/2017.

29. It is no doubt true that disqualifying an elected Councillor is a serious matter. The Councillor who gets himself eleced through the democratic process as a representative of people at grass-root level, when is sought to be disqualifed, the charges against him, undisputedly must be strictly proved. It must established that he has incurred a disqualifcation in terms of some statutory provision. However, it should also be kept in mind that Section 10(1D) which provides for a disqualifcation and the provision which is ordained by the Legislature requires reasonable interpretation and if the ingredients of the same are established, it must be given a full play and must be permitted to operate with full force.

30. In case of Edwin Francis Britto Vs. Corporation of Gr. Mumbai[2], while dealing with Section 16(1D) of the Mumbai Municipal Corporation Act, 1888, which is a para-materia provision disqualifying a Councillor for the construction undertaken by himself or his spouse, a learned Single Judge of this Court (Justice D.K.Deshmukh, as he was then), has made 2 2006(6) BCR 92 the following observations, which are relevant. “Perusal of the above quoted provision shows that if a councillor has erected an unauthorised structure, then he cannot be a councillor. It is submitted that, if an unauthorised structure is erected by a Councillor after his election, then only the provision disqualifes him to be a councillor. If this construction is accepted, the words "has constructed" become meaningless. Use of the phrase "has constructed" signifes that the intention of the legislature was to disqualify from holding the offce of Councillor such person who has erected unauthorised structure in the past when he was not a Councillor. The intention appears to be to avoid likelihood of confict between duty and interest. The person who has erected unauthorised structure before his election as Councillor would not be interested in removal of unauthorised structures and, therefore, the view of the legislature appears to be to discourage the election of persons who are responsible for raising unauthorised structures. Perusal of the provision of Section 16(1D) further shows that when the legislature wanted the capacity as a Councillor to be relevant the legislative provision has clearly indicated that. Insofar as the structure which is not erected by the person himself, but in relation to which he has merely helped, that help should be in his capacity as a Councillor. So far as raising of structure is concerned, the raising of unauthorised structure by him or his family need not be after his election. Even if an illegal structure is raised by the person before his election, on being found that he was responsible for raising the unauthorised structure, he can be disqualifed from being a Councillor.”

31. The argument advanced by the learned counsel Mr.Godbole that assuming for a moment that there is an unauthorised structure at the instance of his wife, he cannot be disqualifed, since the structure is alleged to have been erected prior to his election and he cannot be disqualifed on the said ground. That submission failed to impress me in view of the decision of the Full Bench and the observations of this Court in case of Edwin (supra). Another argument on behalf of the petitioner that since the proceedings of demolition were not taken to its logical end and, therefore, the requirement of Section 10(1D) i.e. disqualifcation being incurred from the date of declaration is not yet reached is also as hollow as the frst argument. Bering in mind, the intention of the Legislature in enacting Section 10(1D), merely on the pretext that the structure has now been compounded do not denude the said structure of its characteristic as ‘unauthorised’. On the other hand, if the structure gets certifed as ‘authorised’, in view of the development that it is declared as “compounded structure” and it is regularized on deposit of necessary charges of compounding as per the provisions of the MRTP Act, the same cannot escape the ire of the provision. There is no doubt in my mind that the entire exercise taken by Mrs.Bagwe is to push the unauthorised construction under the carpet, once it is noticed by the municipal authorities that it is illegal and instead by compounding it, a feeble attempt is made to come up clean. However, for this act, the petitioner, who is her husband, must take the consequences as from the correspondence placed on record, it can be seen that one document i.e. Exh.136 is addressed by the Deputy Engineer, Building Department to the Petitioner as a Member and the subject mentioned is the construction at Bhavani Peth, with reference to two letters; (A) Letter dated 14/12/2017 from the offce of the Secretary and, (2) Letter dated 09/09/2017 from the offce of the Corporation. By the said communication, the recent position is forwarded to the petitioner and it is stated that for the purpose of regularization of the structure mentioned in the subject, it is possible to regularize the said construction in terms of the Government Resolution dated 07/10/2017, but the publication of the said Notifcation is awaited. It is informed that once it is published, the proposal will have to be forwarded on-line through the Architect and, thereafter, by levying the necessary fee, it can be regularized. This communication, therefore, is indicative of the fact that the petitioner himself was interested in regularization of the structure, knowing it very well that it was unauthorized.

32. In the wake of the aforesaid, the impugned judgment passed by the Small Causes Court, Pune does not deserve any interference and is upheld. Consequently, the writ petition is liable to be dismissed and is accordingly dismissed. In view of the dismissal of the Writ Petition, Interim Applications do not survive and stand disposed of.

33. After the judgment is pronounced in the open court, learned counsel Mr.Godbole, seeks further stay of six weeks to the judgment, by submitting that the impugned judgment is already stayed by this Court vide order dated 14/07/2021 and the stay is in force. Noting above, I am inclined to continue the stay to the impugned judgment for a further period of six weeks from today. [SMT.BHARATI DANGRE, J.]