1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4512 OF 2011 Deepak V. Surve Residing at 14/199, Ichalkaranji Taluka Hatkanangale, Dist. Kolhapur .. Petitioner Versus 1] Subhash Rambhau Kurkute At 21, near Aksa Masjid, Ligade Mala, Ichalkaranji, Taluka Hatkanangale, Dist. Kolhapur, 2] Collector, Kolhapur, 3] Ichalkaranji Municipal Council, through Chief Officer, Ichalkaranji Taluka Hatkangale Dist.Kolhapur 3] State of maharashtra through Principal Secretary, Urban Development Deptt., Mantralaya, Mumbai 4] Smt.Varsha Dipak Dhere, At .. Respondents Mr.A.A.Kumbhakoni, Senior Advocate with Mr.Surel Shah for petitioner Mr.Prashant Kulkarni for respondent No.4 Mr.S.A.Rajeshirke with Prabhakar Jadhav for respondent No.1 2 Ms.P.S.Cardozo, AGP for State CORAM: S.C.DHARMADHIKARI, J. Reserved on : 4th August 2011 Pronounced on: 6th September 2011. ORAL ORDER:- 1] Rule. Respondents waive service. Heard parties finally by consent. 2] This is also a case of an elected councillor being disqualified for carrying out unauthorised construction. On behalf of the petitioner Councillor, it was argued that there was no change in the nature of construction as is existed in the year 2001 and further this fact is admitted by the Ward Officer. The other argument is that reliance is placed only on the assessment extract without considering the fact that it is for the purpose of computation of tax liability. The report of measurement is of the year 2010 and that could not have been relied upon as it was not filed within the statutory period. Lastly, it was 3 argued that the enquiry was biased and vitiated because of political motives. 3] The written statement of the petitioner is that he has not carried out any unauthorised construction. It was argued that there are two properties viz., bearing No.15/ 199 and 15/199/1. It is stated that the property No.15/199/1 belongs to the petitioner and his brother, Prakash. The construction thereon has not been carried out by the petitioner and in any event, that construction is carried out with full permission of the municipal council and in accordance with approved plans. It cannot be said to be unauthorised or illegal. The construction is in terms of the plan and permission and cannot be said to be violative of the relevant laws. As far as property bearing 15/199 is concerned, that property belongs to petitioner's brother and he is not dependent and, he resides separately. The construction has not been carried out by the petitioner and he cannot be disqualified because his brother who is owner of the property is not dependent upon him. The 4 Collector has held as under:- “ Another property bearing No.15/199/1 is in the name of Shri Dipak Surve and is brother Prakash Surve. He obtained building permission on 1st July 2005 to construct an area of 83.76 sq.mtrs only on the ground floor. There is no completion of the building on record. The assessment record of the year 2008-09 show that area under construction of property No.15/199/1 as 156.14 sq.mtrs consisting ground floor area of 75.06 sq.mtrs and first floor 81.08 sq.mtrs. “ It shows that respondent Dipak Surve constructed first floor illegally beyond what is permitted in the building permission granted by Chief Officer, Municipal Council, Ichalkaranji on 1st July 2005.” “ The only issue for my consideration is whether Mr.Dipak Surve completed his building with illegal first floor before he come councillor (election to Municipal Council Ichalkaranji was held in November 2006). If that is the fact, then it would have been recorded in yearly assessment of 2006-07 and 2008-09. Or he would have intimated to Municipal Council date of completion of building and ensured its entry in assessment register. There is no such thing on record. Further, the reply of respondent, cross examination of Section Engineer Sanjay Bagade and argument advanced by his Advocate did not mention of the fact that the building with illegal and unauthorised first floor was built during the Councillorship of Dipak Surve.” 5 4] The report of the measurement that was forwarded stated that the property bearing No.15/199/1 belongs to the petitioner and his brother Prakash. The remarks are that the building permission has been obtained but the construction at site is not in accordance with the permission and the building rules. 5] As far as the oral evidence is concerned, the petitioner stated on affidavit that he has not carried out any construction. His stand was very specific viz., that the property bearing No.15/199 is concerned, the same belongs to one Sadashiv and the said Sadashiv is not dependent upon him. That part of his stand has been accepted by the petitioner and he absolves the petitioner as far as any construction on this property is concerned. 6] As far as property bearing No.15/199/1 is concerned, the petitioner's case is that this belongs to him and his brother. They had 6 purchased an open plot of land. The construction has been carried by his brother with proper permission. There is no increase therein. His brother Prakash is not dependent upon him. Further, he clarifies that the construction on this property is not carried out by his dependent and, therefore, the application be dismissed. His brother, Prakash filed an affidavit reiterating this stand and stating that the construction has been carried out by him and there is no increase therein. 7] The Cross examination of the Section Engineer, Sanjay Bagade reveals that he very clearly exonerates the petitioner insofar as the construction on property bearing No.15/199. As far as property bearing No.15/199/1 is concerned, the clear admission is that this property is jointly owned by the petitioner and his brother, Prakash. He admits that the construction thereon is after obtaining a permission in that behalf. There is also an admission by him that there is no difference in the area calculations as reflected in the assessment record for the year 2008-09 and at the time of actual measurment. It 7 is further admitted by him that the building permission has been granted vide municipal resolution dated 1st July 2005. The Section Engineer, Bagde admits that he has not seen prior assessment in relation to this property. However, he answers in the affirmative, a question that the entire construction has been noted in the assessment record in the year 2004-05. He admits that he is not aware as to who made the construction on this property and when. He admits that the area for which the construction is permitted is duly reflected on the plan. 8] To my mind, on this basis the Collector could not have reached the conclusion that it was the petitioner, Deepak who constructed the first floor illegally. If there is a building permission but there is no completion certificate, then, on what basis the finding of illegal construction carried out by the petitioner is recorded has not been clarified at all. While it is true that the building permission was obtained on 1st July 2005, the constructed area was 83.76 sq.mtrs and 8 only on ground floor, from where the figure 156.14 sq.mtrs consisting ground floor area of 75.06 sq.mtrs and first floor of 81.08 sq.mtrs has been derived is not clear at all. The assessment record for the year 2008-09 which is relied upon shows the construction of ground floor and first floor. That construction is consisting of 71.06 mtrs on ground floor and first floor is 81.08 sq.mtrs. The petitioner is, therefore, faulted for making construction of first floor which is beyond permissible limit and transgressing building permission dated 1st July 2005. 9] However, whether this construction has been carried out by the petitioner or not was the crucial issue and that has been answered on the basis that if the building was consisting of ground plus one upper floor and that construction was done prior to the term of the petitioner as Councillor, it would have been reflected and recorded in the yearly assessment for the year 2006-07 and in two general all comprehensive assessment which have taken place in 2004-05 and 2008-09. 9 However, the Collector overlooks the fact that it is duly reflected in the assessment year 2008-09 but whether it was reflected in the prior assessments or not has not been certified and clearly stated by Sanjay Bagade. Thus, the said Sanjay Bagade was not sure as to whether this construction was carried out after November 2006 and particularly after the election of the petitioner as Councillor and during the term of his office. He does not state that the construction was carried out by the petitioner. He states that the property belongs to the petitioner and his brother Prakash. However, during his cross examination and in an answer to a specific question as to who carried out the construction, he says that he has no knowledge of the same. Therefore, the conclusion drawn that the construction was made by the petitioner and during the term of his office, completely overlooks the cross examination of the Section Engineer. If the silence on the part of the Section Engineer ought to be a factor in favour of the petitioner or not is the only bone of contention, then, to my mind the property was jointly owned and it has come on record that the 10 construction was carried out in terms of the building permission dated 1st July 2005. Therefore, if at all the petitioner were to carry out this construction, it ought to have been clearly stated and established that the same was beyond the permission and carried out after the election of the petitioner as Councillor. That fact could not be established because there is a clear admission that there is no difference in the year occupied by the construction in the assessment extract of 2008-09. Further the petitioner very clearly stated in his deposition as also in his written statement that the construction was carried out and completed by his brother. The building permission was also issued to his brother Prakash. In such circumstances, in the absence of cogent and satisfactory evidence establishing that the construction was carried out by the petitioner or anybody dependent upon him and that it was during the term of his office so also the same contravening and violating the provisions of law, the petitioner could not have been disqualified as a councillor. The petitioner has been clearly exonerated and his version was found to be trustworthy as far as the 11 other property bearing No.15/199. His argument that this property does not belong to him but to one Sadashiv who is distant relative and not dependent upon the petitioner is accepted by the Collector. Further, the version that there is no change in the area under construction in respect of this property as recorded in the assessment year 2004-05 and 2008-09 so also actual measurement is also accepted as trustworthy and believable. In such circumstances, there was no reason to discard identical version with regard to another property bearing No.15/199/1 which is jointly owned by the petitioner and his brother Prakash, who is not stated to be dependent upon him. Even in this construction there is no difference in the area as recorded in the assessment register extract for the relevant years. 10] In these circumstances, the order of the Collector is clearly perverse and deserves to be quashed and set aside. It is vitiated by an error apparent on the face of record as well. The petition, therefore, succeeds. Rule is made absolute in terms of prayer clause (B) but 12 without any order as to costs. (S.C.Dharmadhikari, J)