1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 320 OF 2010 (Pandit Punjaji Saste vs. The Additional Commissioner, Amravati & Ors.) and WRIT PETITION NO. 322 OF 2010 (Janardan Rajaram Gawai vs. The Additional Commissioner, Amravati & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 12, 2010. Heard Shri Tathod, learned counsel for the petitioners and Shri Mujumdar and Shri Kankale, learned AGPs for respondents No. 1 to 3 in respective petitions and Shri Kadu, learned counsel for respondent No. 5. The contention is, the petitioners have been staying on property already encroached since last about 20 years and have not encroached after the year 2005 in which they were elected as Members of Village Panchayat. According to Shri Tathod, learned counsel, as there is no encroachment after election, there is no misuse of post or abuse of power and hence disqualification as defined under Section 14(1)(J)(iii) of Bombay Village Panchayat Act, 1958, is not attracted. He points out that in Writ Petition No. 320 of 2010, in the year 2008, a Government Scheme by name “Gharkul Yojana” is also implemented and very same land with structure has been allotted to the petitioner therein. In 2 this situation, according to him, looking to the spirit of the said provision and object behind it, the disqualification order passed against the petitioners by the Divisional Commissioner in appeal cannot be sustained. He, therefore, prays for setting it aside. The respective learned AGPs and Shri Kadu, learned counsel state that plain language of Section 14(1)(J)(iii) of the Act is very clear and a person who has encroached, cannot be elected. They also rely upon the judgment delivered by me on 15.02.2010 in Writ Petition Nos. 5035 of 2009 and 5638 of 2009, particularly para 5, in support of their contentions. The encroachment by the petitioners is not in dispute. The existence of encroachment on the date of election is also not in dispute between the parties. The petitioner in Writ Petition No. 320 of 2010 has been allotted that encroachment under “Gharkul Yojana” in 2008. There is no such allotment in favour of other petitioner. In view of this, it is apparent that if Section 14(1)(j)(iii) of the Act is held applicable, both petitioners were not entitled to be elected in 2005. The judgment delivered by me (supra) has considered this position. There, it has been noticed that the lady though subsequently elected and also inducted in family due to marriage after encroachment, made some efforts to have it regularized. Thus, her existing interest in encroachment was noticed and she was held disqualified. The wording of section (supra) are very 3 clear and the Legislature has deliberately used the word “has”. In this situation, the fact that there is no encroachment after election is totally irrelevant. If a person has already committed encroachment, he cannot aspire to be elected. The subsequent allotment to the petitioner in Writ Petition 320 of 2010 does not alter his status as encroacher in 2005 election. I do not find any reason to interfere in writ petitions. Writ Petitions are dismissed. No order as to costs. JUDGE *GS.