Allowed

Vikrant Bhimsen Chavan v. the Municipal Commissioner- Thane Municipal Corporation and Ors.

Bombay HC6 Aug 2009WP/5290/2009

Case brief

AI extract

What is this about?

The Court addressed a writ petition wherein the Corporation and officers were acting to shield a councillor from disqualification proceedings initiated by the petitioner.

What did the court decide?

Respondents and concerned officers directed to schedule a General Body Meeting on 20th August 2009 to place the disqualification matter and make reference to the District Judge, without adjournment du

Vikrant Bhimsen Chavan Vs the Municipal Commissioner- Thane… — Election Law | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5290 OF 2009

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Vikrant Bhimsen Chavan..Petitioner

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The Commissioner,..Respondents
Thane Municipal Corporation & ors

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Mr.A.A.Kumbhakoni a/w.Mr.R.S.Shekhawat, Advocate,
for the petitioner
Mr.N.R.Bubna, Advocate, for respondent No.1
Ms.Leena Patil i/b.Mr.P.M.Pradhan, Advocate, for
respondent No.2
Mr.V.P.Malvankar, Assistant Government Pleader, for
respondent No.3 � State

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CORAM :S.B.MHASE &
R.M.SAVANT, JJ.
DATE :6TH AUGUST, 2009

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P.C.

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.Heard.

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2.Rule.

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3.Rule, made returnable forthwith. With the
consent of parties, taken up for hearing.

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4.The petitioner is a person residing within
the area of respondent No.1 � Thane Municipal

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Corporation. He is a tax payer and also a voter.
The petitioner had filed a complaint with
respondent No.1 � Thane Municipal Commissioner

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against respondent No.2 on 14th October, 2005,

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making a grievance that respondent No.2 is

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disqualified under Sections 10(1D) and 10(1F) of

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the Bombay Provincial Municipal Corporations Act,

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1949. Thereafter, respondent No.1 � Thane

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Municipal Corporation conducted an Enquiry and

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prepared a Report on 16th January, 2006, and

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thereafter, Show Cause Notice was issued by

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respondent No.1 to respondent No.2. The respondent

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No.2 did not file any reply to the said Show Cause

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Notice. However, the respondent No.1 did not
proceed with the matter. Therefore, the petitioner

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approached this Court by filing Writ Petition No.

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6034 of 2006, which was disposed of by this Court
on 22nd April, 2009, and the following directions

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were issued.

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�Therefore, as a last chance, we give
respondent No.3 two weeks from today
to file a reply to the show-cause
notice dated 20th May, 2006. If no
reply is filed within two weeks
before the Commissioner, the right to
file reply would stand closed. The
Commissioner shall thereafter decide
the matter, after giving him a fair
chance of hearing, within two weeks
thereafter. In any case, the matter
shall end within four weeks from
today.�

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Thereafter, the Commissioner has passed an Order to
the following effect.

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�The issue of disqualification of
Respondent Shri Baliram Vasudev
Naibagkar pursuant to Show Cause
Notice No.TMC/DMC-HQ/GAD/4602 dt.
20th May, 2006 shall be placed before
the General Body of the Thane
Municipal Corporation for making a
reference to the Judge to decide the
question of disqualification of Shri
Baliram Vasudev Naibagkar.�

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This Order was passed in view of Section 12 of the
Bombay Provincial Municipal Corporations Act, 1949,
and, therefore, the said subject is required to be
placed in the General Body Meeting of the Thane

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Municipal Corporation. This Order was communicated

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by the respondent No.1 to the Mayor. However,

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inspite of the communication of this Order and even
though the Meeting of the Thane Municipal
Corporation was held on 9th April, 2009, the said
subject was not placed by the Mayor in the General
Body Meeting of the Thane Municipal Corporation and

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therefore, the petitioner has approached this Court

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seeking directions as prayed for in the Writ
Petition. In fact, the matter of disqualification

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of respondent No.2 is pending since the year 2005,

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the respondent No.1 having found that no reply has

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been filed should have placed the matter before the
Mayor for making a reference to the District Judge

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as required under Section 12 of the Bombay

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Provincial Municipal Corporations Act, 1949 but
that was not done. For that purpose the Writ
Petition was required to be adjourned by this

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Court. Thereafter, the Orders were passed by the

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respondent No.1 which are produced above. Inspite
of that, the Mayor has not placed the subject on

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the Agenda on 9th April, 2009. Thus, what we have

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noticed is that the respondent No.1 and all other
Officers are shielding the respondent No.2 by
protracting the issue. There are no justifiable
reasons on record placed by the respondent No.1 �
Thane Municipal Corporation as to why the issue of
the disqualification of the respondent No.2 was not

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placed in the General Body Meeting. It is to be
noted that neither the Commissioner nor the General
Body has to decide the matter of disqualification

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but it is to be decided by the District Judge.
Respondent No.1 had an opportunity in this respect
to make a reference but time has been consumed by

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the Commissioner from the year 2005 to 2009. It

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shows the manner in which the respondents have

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tried to shield the respondent No.2. What we find

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is that in the earlier Order this Court had

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directed to decide the matter within a period of

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four weeks. The matter should be concluded by the

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respondent No.1 does not mean that only he has to
pass an Order and place it before the Mayor. The

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said contemplates the entire process to be
completed including the Orders of General Body
Meeting of the Thane Municipal Corporation. We

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find that the Order of this Court has been wrongly
interpreted by the Commissioner to the extent that
he was only obliged to dispose of the application
before him. We make it clear that the directions
were to the Officers as well as to the Corporation.
The Corporation was under an obligation to see that
whole process under Section 12 is completed.

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5.Our attention has been invited to the
Chapter II Schedule 1 which deals with the

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proceedings of the Corporation.

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Under Rule 1(a) There shall be in
each month at least one ordinary
meeting of the Corporation which
shall be held not later than the
twentieth day of the month.

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Sub-Rule (b) is not relevant because
it speaks about the first General
Body Meeting of the Corporation.

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time and place of meeting shall in
every other case be fixed by the
Mayor or in the event of the office
of Mayor being vacant, or of the
death or resignation of the Mayor or
of his ceasing to be a councillor,
or of his being incapable of acting,
by the Deputy Mayor, or failing both
the Mayor and the Deputy Mayor, by
the Chairman of the Standing
Committee.

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6.Therefore, it is submitted by Mr.N.R.Bubna,

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Advocate, for the respondent No.1 that the day,
time and place is to be fixed by the Mayor of the
Corporation. What we find is that Rule (c) applies

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in cases where Rule 1(a) and 1(b) do not apply.

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Insofar as Rule 1(a) is concerned, Mayor has no

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power to decide the day, time and place. The said
power is of the Commissioner in the absence of
provisions to that effect. Rule 1(a) contemplates

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that there shall be Meeting of the Corporation held

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not later than the twentieth day of the month. We,
therefore, direct the respondents and the Officers,

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who are concerned with the fixing of the General
Body Meeting of the Corporation, that the same

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shall be scheduled on 20th August, 2009, and the
subject regardingdisqualificationofthe

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respondent No.2 and for making a reference to the
District Judge as per the Order of the respondent
No.1 shall be placed in the said Meeting. The said
subject of the disqualification of the respondent
No.2 and reference to be made to the District Judge

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will not be differed and it will be discussed and
decided in the said Meeting. We further clarify
that the said Meeting shall not be adjourned on the
pretext of the Code of conduct that may introduced
by the Election Commission.

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7.With the aforesaid directions the above

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Writ Petition is allowed by making the Rule

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absolute in the aforesaid terms.

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( R.M.SAVANT, J.) ( S.B.MHASE, J. )

Vikrant Bhimsen Chavan v. the Municipal Commissioner- Thane Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Vikrant Bhimsen Chavan v. the Municipal Commissioner- Thane Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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