1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.2203/2008 PETITIONER : Shri Javed s/o Sheikh Mustaque Patel, aged about 35 years, Occu : Business, R/o Digras, Distt. Yavatmal. // VERSUS // RESPONDENTS : 1) The State of Maharashtra, Through Principal Secretary, Urban Development Department, Mantralaya, Mumbai 32. 2) The Collector, Yavatmal. 3) Municipal Council, Digras, Through its Chief Officer, Digras, Distt. Yavatmal. 4) Mustaque s/o Pyarmohamad Sheikh, Aged about 39 years, Occu : Medical Practitioner, R/o Moti Nagar, Arni Road, Digras, Tq. Digras, Distt. Yavatmal. 5) Sheikh Sameer s/o Sheikh Mustaque Patel, Aged about 30 years, Occu : Business, R/o Wahab Nagar, Digras, Tq. Digras, Distt. Yavatmal. ---------------------------------------------------------------------------------------- Shri F.T.Mirza, learned counsel for petitioner. Shri S.J. Jichkar, learned A.G.P.for Respondent Nos.1 and 2. Shri M.P. Khajanchi, learned counsel for Respondent No.3 Shri H.D.Dubey, learned counsel for Respondent No.4. ---------------------------------------------------------------------------------------- 2 CORAM: A.B. CHAUDHARI, J. DATED : 18/06/2008. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. The counsel for the petitioner in support of his writ petition, made the following submissions. (i) Section 44 (1) (e) of the Municipalities Act and the disqualification provided does not apply, if the unauthorized construction is not made during the tenure of elected member / Vice-President and in the instant case, the construction was existing number of years before the petitioner was elected. (ii) The original petition before the Collector was heard and was closed for the orders. The Collector who heard the petition and closed for the orders was transferred and the matter was taken up by another Collector and without giving notice of hearing, he on his own made the impugned order disqualifying the petitioner. This is a clear violation of principles of natural justice. 2. Per contra, learned counsel for the opposite parties argued that the fact that the petitioner's father or his ancestors 3 made unauthorized construction on the government land, is not in dispute. The application made by the petitioner itself shows that the construction was made on the government land and the petitioner does not have any document of title in his favour. That apart, the petitioner preferred First Appeal before the State Government and the State Government conducted proceedings of appeal giving full opportunity of hearing to the petitioner and dismissed the appeal after examination of all the relevant documents. According to the learned counsel for respondents, now it is too idle to make a grievance about the violation of principles of natural justice. 3. Having heard the learned counsel for the rival parties and having perused the impugned orders and the relevant papers shown to me, taking second submission first for consideration, I find that no such ground was either taken in the memo of appeal or advanced in the course of arguments in appeal before the State Government. Had such a ground been taken and pressed into service, the Appellate Authority would have thought of remitting the matter to the Collector for fresh hearing. In the Writ Jurisdiction that cannot be done now. That apart, perusal of the impugned appellate order shows that the detailed enquiry has 4 been made by the Government while deciding the appeal and a finding has been reached that the petitioner did fall in the category of persons having unauthorized construction on the land belonging to the government. This finding of fact is not disputed before me. The first submission made by Shri Mirza cannot be accepted since the object of insertion of this provision does not allow, the candidates to contest election unless their slate is clean. I do not find any difficulty in holding that unauthorized construction made even prior to the filing of Nomination Form or prior to the tenure as a member or office bearer will also fall within the mischief of Section 44 (1)(e) of the Municipalities Act. In the result, there is no need to interfere with the impugned orders. The petition is thus dismissed. Rule discharged. 4. No order as to costs. JUDGE VMC