1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4508 OF 2011 Sanjay Mahadev Kamble, R/at 16/1431, Ichalkaranji, Tal.Hatkanangale, District Kolhapur .. Petitioner Versus 1) Subhash Rambhau Kurkute, R/near Aksa Masjid, Ligade Mala, Ichalkaranji, Tal.Hatkanangale, Dist.Kolhapur 2) Collector, Kolhapur, Dist.Kolhapur 3) Ichalkaranji Municipal Council, Ichalkaranji, Tal.Hatkanangale, Dist.Kolhapur 4) State of Maharashtra 5) Smt.Varsha Dipak Dhere .. Respondents Mr.A.A.Kumbhakoni, Sr.Adv with Mr.Surel Shah for petitioner. Mr.Prashant Kulkarni for respondent No.5. Mr.S.A.Rajeshirke with Mr.Prabhakar Jadhav for respondent No.1. 2 Ms.P.S.Cardozo, A.G.P for respondent No.5-State. CORAM : S.C.DHARMADHIKARI, J. RESERVED ON : 4th August 2011. PRONOUNCED ON : 6th September 2011. ORAL ORDER: 1] The petitioner herein is also a Councillor of the Ichalkaranji Municipal Council. He has been elected in the elections held in November 2006. An application was made by the first respondent seeking to disqualify him under section 44(1)(e) of the Municipalities Act. As far as the present petitioner is concerned, it is submitted that the property in his case is bearing No.33 and bears C.T.S.No.16/1431, 21/1138 and 19/976. The petitioner has not given any details even though the Municipal Council called upon him to furnish the same. However, it is pertinent to note that as far as the Municipal records indicate, the property is bearing No.16/1431 and is held by Mahadev Shankar Kamble, wheras property 3 bearing No.21/1138 is held by Mrs.Jaya Kamble. There are no details available insofar as property bearing No.19/976 is concerned. It is stated that no building permissions have been forwarded. However, pertinently, the year in which the construction has been carried out has not been informed or intimated. Yet, the Collector proceeds to disqualify the petitioner by holding thus:- “. As agreed by learned Advocates of both petitioner and respondents, measurement was carried out by Junior Engineer Shri Subhash Sudhakar Deshpande of Municipal Council, Ichalkaranji and submitted his report along with assessment report of 2004-05 and 2008-09 (which show the area under construction for assessment, it has evidential value) and area under construction found on the date of measurement. As per his report, property No.19/976 is an open plot and there is no change in area of construction in respect of property No.16/1431 in assessment report of 2004-05, 2008-09 and actual measurement carried out in July 2010.” “. However, area under construction with respect to property No.21/1138 owned by Jaya Kamble, spouse of Shri Sanjay Mahadeo Kamble 4 show marked changes. The area under construction as per the assessment record of the year 2004-05 is just 58.70 sq.mtrs. The gradation of this property (or building) is “E” as per the assessment report, indicative of construction with just brick and stones and is of semi permanent nature. (and also it is in name of original landlady Bharati Kisan Aawale). The assessment report of the year 2008-09 show that the gradation of building is improved form E to B which indicate that the construction is of high quality with RCC slab and of first grade nature. It also reveal that the property is now in 2008-09 a two storeyed building having area of 273.53 sq.mtrs. It is also noteworthy to mention here that on the top of the assessment sheet a remark was given that “New Building after demolition of old one”. The affidavit of Sanjay Kamble dated 22nd May 2010 was silent whether the old building was demolished and permission for new building was taken as per rules. It merely mention that some repair work was carried out to the property after purchase by his wife Jaya Kamble. The affidavit did not throw any light on how the gradation of property changed from E to B for which he/his wife is paying property tax to Municipal Council. And how the increase in construction area from 58.70 sq.mtrs to 273.53 sq.mtrs took place by just repairs of old building. Further, it is to be noted that the actual area under construction is 294.17 sq.mtrs on 16th July 2010 i.e., the date of actual measurement. During the cross examination by Adv. R.A.Mehta, Shri Subhash Sudhakar Deshpande told that there is no change in area of property No.21/1138 and there is 5 no additional construction. But this testimony is not acceptable and seem to be true. The assessment report of 2008-09 shows more than five fold increase in area of the said property, its change in gradation from E to B (from Semi permanent to permanent and RCC slab structure with high quality). The final argument of Adv. Mehta merely rely on the oral testimony of Shri Deshpande but did not refer to assessment reports and actual measurtement carried out on 16th July 2010. On the contrary, Adv. Kulkarni of petitioner pointed in his final argument that there is no building permission to this structure on record and argued that taking advantage of her husband being councillor, Jaya Kamble carried out illegal construction of property No.21/1138.” “. After careful appreciation of assessment reports and actual measurement, I hold that Jaya Kamble, the spouse of respondent No.16 constructed new building measuring 294.17 sq.mtrs during the councillorship period of Sanjay Kamble. It is illegal construction because there is no building permission on record. The affidavit of Sanjay Kamble on 22nd May 2010 and half truth admission of repair work being carried out prove that this illegality was committed during his period of councillorship of Municipal Council, Ichalkaranji.” 2] Mr.Kumbhakoni appearing for petitioner submits that this finding and conclusion based thereon soas to disqualify the 6 petitioner is wholly vitiated, inasmuch as, it is only in relation to one property which is stated to be owned by petitioner's wife that the disqualification is incurred. As far as this property is concerned, reliance is placed on the assessment record for the year 2004-05 and it is stated that the area under construction is 58.70 sq.mtrs. He submits that the gradation of the building is wholly irrelevant factor and even if it is assumed that a two storeyed building is now found in this property or is referred to in the assessment records for the year 2008-09, it is not enough to hold that the essential ingredients of section 44(1)(e) are satisfied. For the petitioner to be disqualified, it must be shown that the construction by his spouse/ wife in this case was carried out during the term of his office and that it is illegal or unauthorised in the sense that it violates the provisions of law. In this behalf if reference is made to the deposition on record and the original documents, according to Mr.Kumbhakoni, they will demonstrate as to how 7 the petitioner cannot be disqualified. The construction that is carried out is on property No.21/1138. That is stated to be in Taluka Hatkanangle. The measurement report shows that the property belongs to the petitioner. However, the order of the Collector states that it belongs to his wife Jaya. Be that as it may, this report shows that the construction in the year 2004-05 and in the year 2008-09 so also on the date of measurement viz., 16th July 2010 shows no difference. The remark is that the calculation for the assessment years 2008-09 is incorrect and there is no difference in the measurement. This measurement report is signed by an officer Sudhakar Deshpande, whose deposition is consistent with the contents of his report. However, he has been disbelieved and it is held that construction has increased from 58.70 sq.mtrs in 2004-05 to 294.17 sq.mtrs. That belies the contents of Mr.Subhash Deshpande's report. Why this officer is disbelieved is not clear from the findings of the Collector. 8 This Officer appears to have been disbelieved only because in the opinion of the Collector, the Assessment report of 2008-09 shows more than five fold increase in the area of property and its gradation has changed from “E” category to “B” category, which means from “semi permanent” to “permanent” and RCC Slab quality. 3] Now, if the petitioner is stated to be the owner of this property and whereas the Collector holds that it is not the petitioner but it is his wife who is owner, then, which other record which the Collector has in his possession is not clear to me at all. Assuming that gradation of the construction or building has undergone change and that the area occupied by the construction also differs and shows drastic changes and increase, yet, by this alone, the petitioner cannot be disqualified. For the petitioner to be disqualified, it must be held that his wife or he has put up construction which is violative of law. The construction must be referred to with 9 specific details. If the assessment record and the measurement report are perused, it would be apparent that there is difference therein. Yet, the assessment record shows the property as belonging to the petitioner. The construction is referred to as residential and non-residential. Further, the non residential construction is very clearly demarcated as office, passage, compound and basement. Further, there appears to be a tenant in the property and he is a non residential tenant. This assessment record does not indicate, according to me, that there is remarkable change in the construction. There is a pencil remark that existence of construction which is stated to be unauthorised and illegal can be pointed out. Thus, even if the construction that has been carried out may show increase, yet, that is violative of the provisions of the relevant Act is an essential and necessary finding. That does not seem to have been rendered in this case. In these circumstances, finding that even the order in the case of this 10 Councillor are vitiated by an error apparent on the face of record so also there appears to be total non application of mind and perversity that they are quashed and set aside. The petition will have to be allowed. It is accordingly allowed. Rule is made absolute. No costs. (S.C.DHARMADHIKARI, J)