Section 44(1)(e) of the Maharashtra Municipal Council Act creates independent liability for unauthorised construction de hors criminal action

Supreme Court: In a case where a Municipal Councillor was disqualified under Section 44(1)(e) of the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act, 1965 after his wife carried out unauthorized constructions, the bench of Ashok Bhushan and KM Joseph, JJ held,

“Section 44(1)(e) creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is nothing brought to our notice to conclude that action under Section 44(1)(e) must be preceded by a criminal action and conviction thereunder.”

It was argued before the Court that as unauthorized construction also brings in its wake criminal action, action 14 under Section 44(1)(e) will not lie.

On the argument that if disqualification is incurred under Section 44(1)(e) since unauthorized construction can be visited under law creating criminal liability, action under Section 44(1)(e) will not lie, the Court said,

“Section 44(1)(e), as it stands, 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.”

Stating that if temporary construction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows, the bench said that it is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is undoubtedly also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However,

“Section 44(1)(e), which is ordained by 12 the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play.”

The Court noticed that though the requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out of such construction in the capacity of Councillor in the case of the spouse or dependent is not the statutory requirement,

“Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words “carrying out such illegal or unauthorized  construction” has reference to construction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions.”

[Sampada Yogesh Waghdhare v. State of Maharashtra, 2019 SCC OnLine SC 567, decided on 22.04.2019]

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