:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1884 OF 2008 Shri Vinayak Appasaheb Khatal ...Petitioner Versus The State of Maharashtra and Ors. ....Respondents ====== Mr.P.M.Navnur and Kunal Cheema, Adv. for the petitioners. Mr.S.D.Rayrikar, AGP for the respondent nos.1 and 2. CORAM: S.C.DHARMADHIKARI, J. DATED: 25TH MARCH, 2008. P.C. P.C. P.C. : : : 1. The petitioner has impugned the Decision of the Collector disqualifying him as Member of the Gram Panchayat, Girim, Taluka-Daund. 2. A complaint was preferred against the petitioner with regard to the encroachment committed on government land being Gat No.663. The complainant pointed out that the said land was encroached upon and a construction was made for the purposes of storage of :2: :2: :2: articles. That construction has been made by the petitioner and therefore his continuation as a Member of the subject Gram Panchayat is bad in law. He has to be disqualified, was the request. 3. The Collector issued the necessary Notice and considering the reply of the petitioner, by the impugned order held that the encroachment was indeed made on the Government land. There is no question of the encroachment not being there, because the stand of the petitioner is that the encroachment/permanent construction has been carried out by his son and not by him. Finding that the encroachment is not disputed, but, what is disputed is who has carried out the same, the Collector perused the necessary documents and concluded that, on facts the encroachment has been done by the present petitioner. 4. It is this finding which is challenged in the present petition. 5. Learned Counsel appearing for the petitioner would urge that Section 16(1) Clause (J-3) was inserted :3: :3: :3: by Maharashtra Act 38 of 2006. Therefore, the election having been held prior thereto, so also, the alleged encroachment, this provision/Clause would not be applicable to the facts of the present case. 6. The second submission is that, the encroachment is not done by the petitioner. As to how the encroachment has been done on the government land and whether the encroachment is subsisting or not, is not considered by the Collector. In such circumstances, the impugned order deserves to be quashed and set aside as it is vitiated by an error apparent on the face of the record. 7. Upon a perusal of the petition and the Annexures thereto including the impugned order, I am unable to accept either of the contentions. The provisions very clearly state that any person cannot be a Member or continue as such, if he is encroaching upon the Government land or public property. Thus, the initial election, so also, the continuation is subject matter of disqualification. If the disqualification continues even after the Election of the Member, so :4: :4: :4: also, as Sarpanch, then the provisions are attracted. It is not the submission of the learned counsel that because the petitioner is elected as a Sarpanch, he cannot be disqualified as a Member. The petitioner’s disqualification as a Member is put in issue and based upon that, his continuation is questioned. Therefore the provisions are very clearly attracted. 8. Insofar as, the encroachment is concerned, the Tahsildar, Daund has reported that the Government Land Gat No.663 has been encroached upon, inasmuch as a permanent construction has been made thereon. The permanent construction is to the extent of 10 gunthas. It appears that the petitioner is carrying on business in Jaggery/Gud and for storage of the articles he has made that construction. Further, reference is made to the Communication from the petitioner dated 18.7.2003 where the petitioner had himself requested for permission to store the articles by putting up some construction. That permission was not granted admittedly. Further, if the encroachment has not been done by the petitioner but by his son, then, as to how this Communication comes from the petitioner is not :5: :5: :5: explained at all. Thus, the encroachment is not by the petitioner, but, by his son and even the business is carried on by the son, is a plea raised purely as an afterthought and to avoid disqualification. Once, the encroachment is not disputed, so also, the role of the petitioner therein, then the order of the Collector disqualifying the petitioner is not liable to be interfered with. It is consistent with the materials placed before me and therefore cannot be said to be vitiated as contended. 9. There is no merit in this Writ Petition and it is summarily dismissed. No costs. **********