JAVED SHEIKH MUSTAQUE PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Letters Patent Appeal No. 320/2008 and the reference made in Writ Petition Nos. 4910/2008 and 4911/ 2008 are being disposed of by the common judgment since the question of law involved in the appeal as well as in the reference is identical.

(2.) We have heard Mr. C.A. Joshi, learned Counsel for the petitioner and Mr. S.V. Sohoni, learned Counsel for the respondent No. 1 in Writ Petition Nos. 4910/2008 and 4911/2008 and Mrs. S. Wandile, learned Counsel for respondent No. 3 in Writ Petition No. 4911/2008 and Mr. A.S. Chandurkar, learned Counsel for the appellant, Mrs. Wandile, learned A.G.P. for respondent Nos. 1 and 2, Mr. P.C. Khajanchi, learned Counsel for respondent No. 3 and Mr. Dubey, learned Counsel for respondent No. 4 in Letters Patent Appeal No. 320/2008.

(3.) In Writ Petition Nos. 4910/2008 and 4911/2008 the learned Single Judge held that the view taken by another learned Judge in Writ Petition No. 2203/08 (Javed Sheikh Mustaque Patel Vs. State of Maharashtra and others)1, reported in 2009(Supp.) Bom.C.R. 581 : 2008(5) All.M.R. 334, that disqualification under section 44(1) of The Act is attracted even if the illegal/unauthorised construction is done by the Councillor prior to his tenure as a Councillor, was not the correct view. On account of difference in opinion between the two learned Single Judges of this Court, reference has been made to this Court to decide the issue as to whether an unauthorised/illegal construction made by a Councillor either by himself, his spouse or his dependent prior to his tenure as a Councillor will attract disqualification under section 44(l)(e) of the Maharashtra (Municipal Councils), (Nagar Panchayats And Industrial Townships) Act, 1965 (The Act' for shot).