Writ Petition No. 11776 of 2015 and Civil Application No. 3284 of 2015. Case: Nagesh H. Akkalkote Vs The State of Maharashtra and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 11776 of 2015 and Civil Application No. 3284 of 2015 |
| Counsel | For Appellant: Vineet B. Naik, Senior Advocate and Abhijit Kulkarni i/b D.D. & Abhijit Associates and For Respondents: Neha Bhide, AGP |
| Judges | M. S. Sonak, J. |
| Issue | Civil Procedure Code |
| Judgement Date | December 17, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
M. S. Sonak, J.
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Rule. With the consent of and at the request of learned counsel for the parties, Rule is made returnable forthwith. Even otherwise, in the order dated 3 December 2015, the parties were put to notice that an endeavour shall be made to dispose of this petition, finally.
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The challenge in this petition is to the order dated 29 September 2015 made by the Additional Secretary, State of Maharashtra, purporting to exercise appellate jurisdiction under Section 44(4) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (said Act) and in pursuance thereof to stay the orders dated 14 September 2015 made by the Additional Commissioner, Pune, by which the disqualification order made against the Petitioner under Section 44 of the said Act, had been set aside. In effect, the impugned order purports to revive the disqualification, in so far as the Petitioner is concerned.
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Mr. Vineet Naik, learned senior advocate for the Petitioner, has made the following submissions in support of the petition:
a] That in terms of Section 44(4) of the said Act, the order dated 14 September 2015 was made by the Regional Director of Municipal Administration, has been accorded statutory finality. Accordingly, no further appeal lay before the Additional Secretary, State of Maharashtra. Since the appeal itself was ex-facie not maintainable, the impugned order made therein is a nullity;
b] This Court, by its order dated 31 July 2015 in Writ Petition No. 6139 of 2015 had stayed disqualification incurred by the Petitioner during pendency of the Petitioner's appeal under Section 44(4) of the said Act before the Regional Director, Municipal Administration. The Petitioner's appeal was allowed by the Regional Director and the order of disqualification was set aside. In such circumstances, there was absolutely no justification to make the impugned order, which virtually has the effect of reviving disqualification of the Petitioner;
c] The impugned order has been made ex-parte and contains no reasons whatsoever. This is also a serious jurisdictional error, considering the circumstance that the Petitioner is an elected representative.
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Ms Neha Bhide, learned AGP for Respondent Nos. 1,2 and 4, fairly submitted that under the provisions of Section 44(4) of the said Act, no further appeal, would lie to the State Government. Mr.B.D. Joshi, learned counsel for Respondent No. 3, however, joined the issue and submitted that in terms of Section 44(4) of the said Act, appeal against disqualification basically lies to the State Government. Insofar as, notification delegating such powers to the Regional Directors are concerned, Mr. Joshi pointed out that such notification is prior to introduction of Section 44(1)(e) on the Statute Book by virtue of Maharashtra Act 11 of 2002. Therefore, he submitted that the appeal instituted by the Petitioner before the Regional Director was itself not maintainable. In any case, Mr. Joshi submitted that in terms of Section 318 of the said Act, the State Government possess revisional jurisdiction and therefore, there is no...
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