1406wp2366.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.2366 OF 2011 Smt.Anjubai G.Bagde ..vs.. The Addl.Commissioner, Nagpur and ors. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. G.G.Bade, Adv. for the petitioner. Smt.Tajwarkhan, AGP for resp.1 and 2. Mr.M.I.Dhatrak, Adv. for respondent no.4. CORAM : R.M.SAVANT, J. DATED : 14th June, 2011. The above petition filed under Articles 226 and 227 of Constitution of India takes exception to the order dated 04/05/2011, by which order the appeal filed by the petitioner under Section 16(2) of the Bombay Village Panchayat Act, 1958 (for brevity referred to as ‘said Act’) came to be rejected. The petitioner was the elected member of Grampanchayat Waghoda, Tq.Saoner. The petitioner, at the time of filing her nomination gave her residential address as Ward No.3 of the said village. The respondent no.4 herein filed a complaint before the Additional Collector seeking disqualification of the petitioner by invoking Section 14(1)(j-3) of the said Act on the ground that the petitioner had carried out unauthorised construction. The said complaint was heard by the Additional Collector, in which proceedings the petitioner was given an opportunity, and on the basis of the material on record, the 1406wp2366.11.odt 2 Additional Collector by order dated 17th February, 2011 allowed the application filed by respondent no.4 and recorded a finding that the petitioner stands disqualified under Section 14(1)(j-3) of the said Act on account of having carried out unauthorized construction on Government land. Against the said order, the petitioner filed an appeal before the Additional Commissioner. The Additional Commissioner was of the view that the fact whether the petitioner’s mother-in-law Tulsabai is beneficiary under the Scheme known as ‘Indira Awas Yojna’ would have to be ascertained, and remanded the matter back to the Additional Collector for a de novo consideration. On such remand, the Additional Collector on consideration of the report of the Block Development Officer (BDO) recorded a finding that that the petitioner’s mother in-law was not a beneficiary under the ‘Indira Awas Yojna’ Scheme and therefore, allowed the application filed by respondent no.4 and disqualified the petitioner on the ground of having carried out unauthorised construction on Government land. The said order thereafter was carried in appeal by the petitioner by filing Appeal No.BVP being No.72/2010-2011. The Additional Commissioner by the impugned order dated 4/5/2011 has confirmed the findings of the Additional Collector in so far as the petitioner’s mother in-law not being a beneficiary under the Indira ‘Awas Youjna Scheme’. The Additional Commissioner recorded that in the enquiry conducted by the B.D.O. it was found that there is no name included in the list of 12 Indira Awas Yojna Scheme beneficiries in so far as the petitioner’s village is concerned and therefore, confirmed that the land under encroachment was never 1406wp2366.11.odt 3 granted to the mother in-law of the petitioner and since the encroachment still existed, the disqualification of the petitioner was inevitable. It is sought to be contended on behalf of the petitioner in the above petition by the learned counsel Shri Bade that the encroachment, if any, can be said to be carried out by the mother in-law of the petitioner and therefore, the said fact cannot be held against the petitioner in so far as her disqualification under Section 14(1)(j-3) of the Act is concerned. The learned counsel for the petitioner relied upon a judgment of a Division Bench of this court reported in 2009(2) Mh.L.J.925 (Javed Sheikh Mustaque Patel ..vs.. State of Mah. and ors.). The learned counsel further contended that in view of the said judgment, the encroachment should have been carried out during the term of the office of the concerned member to entail his or her disqualification. In my view, the said submissions cannot be countenanced. It is required to be noted that the, initially, though the petitioner had given her address as Ward No.3, thereafter she sought to retract from the said case by stating that she was actually residing in Ward No.2. Thereafter, the present theory that the encroachment has been carried out by the mother in-law of the petitioner and therefore the said fact cannot held against the petitioner is sought to be canvassed. The provision of disqualification as contained in Section 14 is a wholesome provision, which has been introduced by the State Legislature to bring same sort of probity in public life. In so far as the application of the judgment of the Division Bench (supra) is concerned, it is pertinent to note that the provisions of Section 44(1)(e) of the Maharashtra (Municipal 1406wp2366.11.odt 4 Councils), (Nagar Panchayats and Industrial Townships) Act, 1965 are different from the provisions which we are concerned in the present petition. The provisions in the said Municipalities Act postulate that the construction should be carried out during the tenure of the councillor. Such is not the case in the instant Act. Hence, the said judgment would have no application. It is undisputed that the petitioner is residing in the joint family along with her mother in-law. In the said context and in the context of the fact that the mother in-law is not the beneficiary under the Indira Awas Yojuna, the finding of the authorities below that encroachment has been carried out on government land cannot be faulted with. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. JUDGE Chute