1. The learned Single Judge of this Court in a case of Pradeep S/o Walchand Raka Vs. Bhiwandi Nizampur Municipal Corporation in Writ Petition No. 2030 of 2015 (Principal seat at Bombay) under its judgment and order dated 13.07.2018 held that, the councillor who is nominated cannot incur the disqualification for having more than two children under the.

2. The said judgment was referred to in a case of Sonal Dilip Shinde Vs. State of Maharashtra in Writ Petition No. 4065 of 2020 (at Aurangabad Bench). In the said case the petitioner was aggrieved by the order passed by the Additional Divisional Commissioner holding that the petitioner has incurred disqualification U/Sec. 10(1)(E) of the Maharashtra Municipal Corporation Act, 1949 (for the sake of brevity hereinafter referred as to the "Act 1949") as she failed to submit the election expenses and as such stands disqualified. The learned Single Judge dealing with the said case was of the view that the nominated councillor also is subject to disqualifications as are applicable to an elected councillor. In the light of that, the learned Single Judge has referred the matter for consideration before the Division Bench. Accordingly the matter has been referred to us to adjudicate and answer the following issues.

(a) Would a nominated Councillor, as defined u/ s 2(11), incur a disqualification u/s 10(1E) for having entered the election fray and having failed in submitting the accounts of election expenses and would such disqualification unseat a nominated Councillor

(b) Is a nominated councillor exempted from any disqualification under the Maharashtra Municipal Corporation Act and cannot be unseated even if he incurs a disqualification for continuing as a councillor

3. Mr. Bagul, the learned counsel for the petitioner submits that, a nominated councillor does not have to undergo the process of election, as such is not required to submit the account of election expenses. The petitioner had already withdrawn her candidature and had not contested the election as such cannot incur the disqualification U/Sec. 10(1E) of the Act 1949. The learned counsel further submits that, the nominated councillor is so nominated on account of him possessing special knowledge or experience in municipal administration, save and except the said criteria no other criteria or disqualification is provided for a nominated councillor. The nominated councillor is not entitled to vote in any meeting, nor can be elected as a Mayor or Chairman of the Standing Committee. In view of the same, the disqualifications as are provided for a person to be elected as a councillor are not applicable for a nominated councillor. The disqualifications provided for a councillor to be elected U/Sec. 10 of the Act 1949 would not apply to a nominated councillor. The learned advocate further submits that, it is the rule of interpretation that the words in a statute have to be given their literal meaning. The provisions are not ambiguous. The learned counsel places reliance on the judgment of the learned Single Judge of this Court in a case of Pradip S/o Walchand Raka Vs. Bhiwandi Nizampur Municipal Corporation (supra). The disqualification provided U/Sec. 10 of the Act 1949 is only for the elected councillor.

4. Mr. Kadethankar, the learned advocate for the State Election Commission, Mr. Yawalkar, the learned Additional Government Pleader for respondents/State, Mr. Desale and Mr. Sharma, the learned counsel for respective respondents submit that, the word councillor is defined under the Act 1949. The definition of councillor includes elected and nominated councillor. Section 10 of the Act 1949 provides that subject to the provisions of Section 13, 17 and 404 of the Act, a person shall be disqualified for being elected and for being a councillor, if such person incurred disqualifications as are prescribed under Section 10(1A) to 10(I) of the Act 1949. In view of the definition of the councillor, the elected and nominated councillors are subject to the disqualifications as are prescribed in the statute. According to them, the plain interpretation of the statute is unambiguous. The councillor as defined under the includes the elected as well nominated. The disqualification would be applicable to the nominated and elected councillor equally. The learned counsel rely upon the judgment of the Apex Court in a case of Lalit Mohan Pandey Vs. Pooran Singh and others reported in AIR 2004 SC 2303 [LQ/SC/2004/622] , another judgment in a case of Balram Kumawat Vs. Union of India (UOI) and others reported in AIR 2003 SC 3268 [LQ/SC/2003/837] , in a case of B. Premanand and others Vs. Mohan Koikal and others reported in AIR 2011 SC 1925 [LQ/SC/2011/413] and in a case of K. Prabhakaran and others Vs. P. jayarajan and others reported in AIR 2005 SC 688 [LQ/SC/2005/35] .

5. The learned counsel also rely upon Article 243(V)(1) of the Constitution of India and submit that, a person shall be disqualified for being chosen and for being a member of the municipality, if he so disqualified by or under any law made by the legislature of the State. The municipality also includes municipal corporation. The reliance is placed on the judgment of the Full Bench of this Court in a case of Anil ( Vidyarth ) Chandrlal Ailani Vs. State of Maharashtra reported in 2016 (2) Mh. L. J. 708.

6. We have considered the submissions canvassed by the learned counsel for the parties.

7. The Maharashtra Municipal Corporation Act is a complete code in itself. The act provides for the constitution of the corporation, the councillors, the eligibility of the councillors and the disqualification of the councillors.

8. The Corporation is constituted U/Sec. 5 of the Act 1949. Section 5(2)(a) of the Act 1949 explains that each corporation shall consist of (a) such number of councillors elected directly by ward elections as specified therein and (b) such number of nominated councillors not exceeding five having special knowledge or experience in municipal administration to be nominated by the Corporation in such a manner as may be prescribed.

9. Section 2(11) of the Act 1949 defines councillor. The councillor means a person duly elected as a member of the corporation and includes a nominated councillor.

10. The definition of the councillor includes an elected councillor and also a nominated councillor. The restrictions upon a nominated councillor are that he cannot take part in any meeting of the corporation and the committees of the corporation. So also he cannot get elected as Mayor of the corporation or Chairperson of any of the committees of the corporation. Save and except the above for all purposes he is a councillor of the municipal corporation. The State Government in exercise of its powers conferred U/Sec. 456(a) of the Act 1949 introduced the Maharashtra Municipal Corporations, Municipal Councils and Nagar Panchayats (Qualification, Elections and Appointments of nominated Councillors) Rules, 1995. The nominated candidates were also elected by way of procedure of election. The rules provided for the qualification of a nominated candidate, filling of nominations, scrutiny of nominations, withdrawal of candidature, procedure for election of nominated councillor, method of voting, voting procedure, scrutiny of ballot papers, counting of votes, transfer of surplus votes, filling of last vacancy, provisions for recounting and declaration of results. Thereafter 2007 Rules were introduced and in the year 2012 even 2007 Rules were superseded and 2012 Rules were introduced. The Rules of 2012 do not provide for election of a nominated councillor. It only provided for nomination of candidates. Rule 3 of the said rules provides for meeting to be conducted. Rule 4 provides qualification for nomination, Rule 5 provides for nomination of councillors, Rule 6 provides for publication of names of nominated councillors, Rule 7 provides for casual vacancies and under Rule 8 certificate to the nominated councillor is provided.

11. 2012 Rules does away with the process of election while appointing/selecting a councillor by nomination.

12. There are two modes of becoming a councillor of municipal corporation : (1) by due election and (2) by nomination. The councillor would include a duly elected as well as a nominated councillor. Rules 2012 prescribe the eligibility and qualification of a nominated councillor. However, Rules do not provide for disqualification. The disqualification as provided under the Act 1949 would uniformly apply to the nominated as well as elected councillor. Section 10 of the Act 1949 provides for disqualification of a councillor. It states that, a person shall be disqualified for being elected and for being a councillor. Section 10 of the Act 1949 encompasses and engulfs within its fold both the nominated as well as elected councillor.

13. A councillor is nominated because of his special knowledge, experience, expertise, skill, etc. and such a person is not required to undergo the rigors of election from general public. However, that would not mean that if a person is disqualified to be elected can still be nominated. Such a interpretation would be unreasonable and irrational. A person who has been convicted for an offence involving moral turpitude, unless a period of six years has elapsed from the date of conviction is disqualified to be a councillor, so also and an undischarged insolvent is also disqualified, a person holding a place of profit under the corporation is also disqualified. The person holding judicial office within jurisdiction of the city is disqualified or the person having direct or indirect interest of share in the contract or employment with or on behalf of corporation is disqualified. All such persons cannot be also nominated as a councillors. If it is held that all these disqualifications would not apply to a nominated councillor, then that would result in absurdity and frustrate the very purpose of providing disqualification. The Courts will have to adopt a purposive interpretation. Purpose of providing for the disqualifications will have to be considered. The approach and the intention of the statute would be set at naught, if it is held that all the disqualifications provided U/Sec. 10 of the Act 1949 would not apply to a nominated councillor. Section 10 of the Act 1949 is in two parts 1) a person shall be disqualified for being elected and 2) for being a councillor, meaning thereby a nominated councillor and an elected councillor. The interpretation that the disqualifications prescribed U/Sec. 10 of the Act 1949 apply to the elected and nominated councillors both would be rational, reasonable and in tune with the purpose and object of providing disqualification.

14. Moreover, Article 243V(1) of the Constitution of India states that, a person shall be disqualified for being chosen as and for being a member of a municipality (a) if he is so disqualified by or under any law for the time being in force for the purpose of elections to the Legislature of the State concerned, provided that, no person shall be disqualified on the ground that b) he is less than 25 years of age, if he has attained the age of 21 years. (c) if he was disqualified by or under any law made by the Legislature of the State.

15. It is the constitutional mandate that a member of Municipal Corporation/council shall be disqualified for being "chosen" as and also for being a member of the municipality, if he was disqualified by any state enactment. The constitutional mandate under Article 243V(1) does not make distinction between an elected and/or a nominated member. A member of the municipality may be, "chosen” by way of election or nomination. Under Article 243Q of the Constitution of India it has been clarified that the term “municipality” includes “municipal corporations”.

16. The Full Bench of this Court in a case of Anil ( Vidyarth ) Chandrlal Ailani Vs. State of Maharashtra (supra) was considering the issue whether the election of a nominated councillor can be challenged by way of an election petition. While disposing the same the Full Bench of this Court observed that, “composition and constitution is guided by Part IXA, and both categories of Councillors being subject to more or less identical disqualifications and disabilities are capable of being removed by democratic process or by intervention of the State Government”.

17. In the light of the above discussion, it is observed that, the nominated councillor is not exempted from any disqualification under the Maharashtra Municipal Corporation Act and he can be unseated, if he incurs disqualification for continuing as a councillor. The issue No. (b) as framed and referred to is answered accordingly.

18. So far as issue (a) referred to is concerned, it is observed that, the person nominated as a member is not required to under go process of election as per Rules 2012. The process for election for a nominated candidate is provided in Rules 1995 and 2007, but Rules 2012 supersedes earlier rules and nomination of a member or a councillor is not through the process of election.

19. Under Article 243K and 243-ZA of the Constitution of India, the superintendence, direction and control of all the elections to the Municipalities in the State of Maharashtra vest in the State Election Commission of Maharashtra. The State Election Commission in exercise of powers conferred by Article 243-A and 243-ZA of the Constitution of India read with provisions of sub section (4) of Section 14 of the Maharashtra Municipal Corporation Act, 1949 on 07.09.2021 issued an order. The relevant part of the said order reads thus :

ORDER

1. Every person, whose name is included in the ‘list of contesting candidates’, including the single valid candidate on any particular seat, shall have to submit the account of election expenses om the time and manner as specified by the Commission. However, candidates who have withdrawn their nominations will not be required to submit the account of elections expenses.

2. Contesting candidates shall have to submit the following documents :

(a) From the date of nomination, daily account of election expenses to the Returning Officer on every next day before 2 p.m. till the publication of the results in the official gazette; and

(b) Total account of election expenses within 30 days from declaration of result and Affidavit regarding submission of true election expenses within 30 days from declaration of result, to Collector/Municipal Commissioner or to an Officer authorized by them not less than the rank of Tahsildar/Assistant Municipal Commissioner and to take acknowledgment for the same.

20. It would appear that in view of the said order, the candidates who have withdrawn their nominations are not required to submit the account of election expenses. The orders of the Election Commission issued in exercise of powers conferred by Articles 243-K and 243-ZA of the Constitution has the force of law. The nominated candidates are not required to under go the process of election and they are only nominated. In view of that, they are not required to submit the election expenses. So the question of disqualification U/Sec. 10(1E) and 49 of the Act 1949 would not arise. Had the nominated councillor required to under go the process of election as was provided in the erstwhile 1995 Rules, then the disqualification U/Sec. 10(1E) of the Act 1949 would have been attracted. But the said position is not countenanced under 2012 Rules. The disqualification attributable to a member of a local body for failing to lodge election expenses within the time and manner as specified by State Election Commission is applicable only to such member, who “had been a contesting candidate, but no one else”. If the member of a local body, councillor of municipal corporation is not chosen vide an election of whatsoever nature, such member shall not be susceptible to the disqualification on the ground of non submission of election expenses. However, if the person nominated as a Councillor had earlier contested election and had failed to submit the election expenses as may be required under law and was disqualified by any order, then, in that case, he will be disqualified to be nominated as Councillor. The issue No. (a) is answered accordingly.

21. Having answered the questions referred to above, the matter shall go back to the respective bench for decision on other questions.