Sub-section (2) of Section 435 is applicable to reference such as the present reference under Section 12 of the Act. In other words, the Act of 1949 provides for a complete mechanism for adjudicating the issue or question as to whether concerned member or Councillor has incurred disqualification. If it is so, the issue of disqualification can be considered only by that Authority and none else, and only in the manner specified by the Act and the Rules made thereunder. In substance, this view is already taken by our High Court in two decisions of Division Bench of this Court. The one which is pressed into service on behalf of the petitioner is in the case of Martin Nirmal Moresh (supra). There is also another recent case reported in 2004(3) Mh.L.J. 435 = 2004(2) All M.R. 1 Smt. Noorjahan M. Aslam Ansari v. State of Maharashtra and Ors., which has taken the view that where any doubt or dispute has arisen as to whether the Councillor has ceased to hold the Office as such under Section 11, then Councillor or any other Councillor may, and at the request of the Corporation, the Commissioner shall refer the question to the Judge.. It is further observed that Section 12 of the Act does not give the Municipal Commissioner the power to decide the controversy himself. As mentioned earlier, in the recent unreported decision in the case of Madhukar Deoman Patil, etc. (Supra), I had occasion to consider this question and I have taken the view following the principle stated in the decision in the case of Martin Nirmal Moresh (Supra), that the Municipal Commissioner has no authority or jurisdiction to consider or adjudicate upon question as to whether any Councillor of the Corporation has become subject to any of the disqualifications provided by the Act.
