- (1.)HEARD the learned Counsel for the parties. Rule. Rule is made returnable forthwith.
(2.)THE petitioner is aggrieved by the order dated 27th May, 2003 passed by the Commissioner, Bhiwandi Nizampur City Municipal Corporation-respondent No. 3. This order declares that the petitioner has ceased to be a member of the Municipal Corporation in view of the provisions of section 10 (l) (i) of the Bombay Provincial Municipal Corporations Act, 1949 (for short, "bpmc Act" ). This amendment came into force on 12th September, 2000 and it provided that a Corporator will be disqualified, if he or she has more than two children.
(3.)THE grievance of Mr. , Dhakephalkar appearing for the petitioner, apart from the submissions on merits, is that under the amended Act, the authority to decide such a dispute is a Judge of the Court of Senior Division. This submission is made on the basis of section 12 of the BPMC Act read with definition of a Judge as occuring under section 2 (29) of the bpmc Act. Section 12 of this Act reads as follows : -
"12. (1) If any doubt or dispute arises whether a Councillor has ceased to hold office as such under section 11, such Councillor or any other Councillor may, and at the request of the Corporation, the commissioner shall, refer the question to the Judge. (2) On a reference being made to the Judge under sub-section (1)such Councillor shall not be deemed to be disqualified until the judge after holding an inquiry in the manner provided by or under this Act determines that he has ceased to hold office. "
From this section, it is clear that where any doubt or dispute has arisen as to whether a Councillor has ceased to hold the office as such under section 11, then the Councillor or any other Councillor may, and at the request of the Corporation, the Commissioner shall refer the question to the Judge.