1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4509 OF 2011 Shaberabi Mujawar residing at 20/69, Near Modern High School, 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 Hatkanangale Dist. Kolhapur, 4] State of Maharashtra, through Principal Secretary, Urban Development Department, Mantralaya, Mumbai 5] Smt.Varsha Dipak Dhere residing at .. Respondents Mr.A.A.Kumbhakoni, Senior Advocate with Mr.Surel Shah for 2 petitioners Mr.Prashant Kulkarni for respondent No.5 Mr.S.A.Rajeshirke with Prabhakar Jadhav for respondent No.1 Ms.P.S.Cardozo, AGP for respondent/ State CORAM : S.C.DHARMADHIKARI, J. RESERVED ON : 4th August 2011 Pronounced on : 6th September 2011. ORAL ORDER: Rule. Respondents waive service. By consent rule is made returnable forthwith. Heard parties. 1] This petitioner is a lady Councillor of the Ichalkaranji Municipal Council. She is also disqualified under section 44(1)(e) of the Municipalities Act. As far as she is concerned, it is stated that property bearing No.20/695 belongs to the spouse of this Councillor and the Collector's finding to the extent relevant reads thus:- “.... However, the property No.20/695 belong to the spouse of respondent Zakir Dastgir Mujawar and his four brothers shows that constructed area of the property as per the assessment register of 2004-05 is 108.35 sq.mtrs and gradation of building 3 is “D” and nature of use is described as industrial (for use of powerloom activity). If we peruse the assessment record of the year 2008-09, it is seen that the constructed area of the said property is 366.42 sq.mtr consisting of three areas A) Winding machine area admeasuring 125.25 sq.mtrs (B) Tin Shed of 139.30 sq.mtrs (C) Residential area 101.87 sq.mtrs. Further the actual measurement carried out by Mr.S.S.Deshpande on 16th July 2010 did not show any increase in area under construction over the area recorded in assessment of 2008-09.” “The petitioner Subhash Kurkute submitted on 13th July 2010 the certified copy of building permission issued by Municipal Council, Ichalkaranji on 7th May 2009 which reveal that Mr.Zakir Dastgir Mujawar, spouse of the respondent Shaberab Zakir Mujawar was permitted to demolish/ pull down the old existing construction before construction of new building. As per the permission Mr.Zakir Mujawar was permitted to construct building of 108.35 sq.mtrs only. However, he constructed the building admeasuring 366.42 sq.mtrs, more than three and half times of permitted construction by order dated 7th May 2009. This clearly happened in the Councillorship period of respondent Shaberabi Zakir Dastgir and her spouse carried out excess construction illegally and unauthorisedly. The testimony of S.S.Deshpande, section engineer who measured the property in cross examination taken by Advocate R.A.Mehta did not confirm the assessment records of 2008-09 and that oral saying of no change in area under construction cannot exonerate the illegality of respondent and her 4 spouse. It is also noteworthy that the excess constructon was carried out when the present petition filed by Mr.Subhash Kurkute was pending. This fact itself show that the spouse of the respondent Shaberabi Zakir Dastgir misused the authority of her being a councillor and constructed building in far excess of permitted limit by order of Chief Officer, Municipal Council, Ichalkaranji.” 2] For the reasons set out in the judgement delivered in Writ Petition No.4507 of 2011 (Dadasaheb Bhatale Vs. State of Maharashtra) and the controversy being indentical, this petition also succeeds and is allowed. Accordingly, rule is made absolute in terms of prayer clause (B). No costs. (S.C.Dharmadhikari, J)