1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4164 OF 2009 Deepak Laxman Jadhav .. Petitioner. Vs. State of Maharashtra & Ors. .. Respondents. Mr.R.V.Bansode for the petitioner. Mr.A.P.Kulkarni A.G.P. for the State. Coram: D.B. BHOSALE, J. Dated : 13TH JULY, 2009 P.C. . Heard learned counsel for the parties. 2. This petition challenges an order dated 17.3.2009 passed by the Additional Commissioner, Pune Division, Pune, in appeal bearing No.VAT/Gram Panchayat/Pune/50/2008. By this order the appeal filed by the petitioner under section 16(2) of the Bombay Village Panchayat Act, 1958 (for short “the Act”) against the order dated 11.4.2008 passed by the Collector, Pune, under clause (j-3) of sub-clause (1) of section 14 of the Act has been dismissed. The petitioner was disqualified under section 14(1)(j-3) read with section 16 of the Act on the ground that he had committed encroachment on the Government land. 3. Clause (j-3) in sub-section (1) of section 14 of the Act was inserted by the Bombay Village Panchayats (Amendment), 2006, 2 (38 of 2006) from 21st December, 2006. This clause provides that “No person shall be a member of a panchayat continue as such, who has encroached upon the Government land or public property”. In the present case it is alleged that the petitioner encroached upon “Gairan land” bearing Gat No.517 situate at village Kahrati and constructed house and shop therein. Both the authorities below have held that the petitioner has made encroachment as alleged and hence disqualified him under section 14(1)(j-3) of the Act. 4. Mr.Bansode, learned counsel for the petitioner challenged the orders of the authorities below on three grounds. Firstly, that section 14(1)(j-3) was inserted on 21st December, 2006, and since the petitioner was elected as a member of the village panchayat and allegedly made unauthorised construction on the Government land before the amendment was brought into force. This provision cannot be taken recourse to disqualify the petitioner as a member of the village panchayat. Secondly, he submitted that section 16(2) of the Act confers jurisdiction on the State Government to decide the appeal and there was delegation of power for deciding the appeal by the State Government to the Divisional Commissioner and as such the Additional Commissioner, who has passed the impugned order was incompetent in law to decide the appeal. In support of this contention a heavy reliance was placed on the judgment of the 3 learned Single Judge in Atmaram Chapa Sandanshiv and Anr. Vs. Shamshadbi Bashri Shah Fakir and others 2008(3) Mh.L.J.906. Lastly, he submitted that the petitioner has not encroached upon the Government land as alleged and, therefore, the order disqualifying him is wrong and illegal. 5. Insofar as the first ground of challenge is concerned, in view of the judgment of this court in Edwin Francis Britto v. Municipal Corporation of Greater Bombay 2006(6) Bombay Cases Reporter 92, it deserves to be rejected outright. This court in Edwin Francis Britto’s case had an occasion to consider the challenge on the similar ground. The relevant observations in paragraph 10 of the Act read thus: “It is submitted that, if an unauthorised structure is erected by a Councillor after his election, then only the provision disqualifies him to be a Councillor. If this construction is accepted, the words “has constructed” become meaningless. Use of the phrase “has constructed” signifies that the intention of the legislature was to disqualify from holding the office of Councillor such personh who has erected unauthorised structure in the past when he was not a Councillor. The intention appears to be to avoid likelihood of conflict between duty and interest. The person who has erected unauthorised structure before his election as Councillor would not be interested in removal of unauthorised structures and, therefore, the view 4 of the legislature appears to be to discourage election of persons who are responsible for raising unauthorised structures. Perusal of the provisions of section 16(1-D) further shows that when the legislature wanted the capacity as a Councillor to be relevant the legislative provision has clearly indicated that. Insofar as the structure which is not erected by the person himself, but in relation to which he has merely helped, that help should be in his capacity as a Councillor. So far as raising of structure is concerned, the raising of unauthorised structure by him or his family need not be after his election. Even if an illegal structure is raised by the person before his election, on being found that he was responsible for raising the unauthorised structure, he can be disqualified from being a Councillor. I have perused the provisions of section 16(1-B) and 16(1-C). They are added by the same Act of the State Legislature which added section 16(1D) and they all relate to disqualification of a Councillor, but those provisions are of different nature and are not relevant for construing the provisions of section 16(1D). In my opinion, therefore, the disqualification under the provisions of section 16(1D) will operate even if the Councillor had erected unauthorised structure even before his election as a Councillor. In enacting the provisions of section 16(1D) of the Act, the intention of legislature was to enable the Corporation to effectively tackle the growing 5 menace of illegal construction. One of the mandatory duties of the Corporation as local body and as a planning authority is to prevent erection of unauthorised structures and to demolish unauthorised structures. If a person who himself has erected an unauthorised structure is elected a Councillor, there is likelihood of there being conflict between duty of such a person as a Councillor and his interest in retaining the unauthorised structure. Therefore, the legislature in order to prevent such a person being elected as a Councillor has used the words “has construed” in section 16(1D) of the Act.” 6. Similarly, the Supreme Court in Vijay v. State of Maharashtra and others 2006(5) Mh.L.J. 782 while dealing with the provisions of clause (J-2) of sub-section (1) of section 14 of the Act and the challenge on similar grounds, observed that “It is true that ordinarily a statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition against retrospective construction is not rigid rule and it does not apply to curative or a clarificatory statute. If from a perusal of the statute, intendment of the legislature is clear, the Court will give effect thereto”. It is thus clear that insofar as this ground of challenge is concerned, the order passed by the authorities below is 6 perfectly within four corners of law, just and deserve no interference by this court. 7. That takes me to consider the second ground of challenge. Similar ground was raised in Namdeo Yeduba Pandhare and Anr. v. State of Maharashtra and Others in Letters Patent Appeal No.154 of 2008 decided by the Division Bench (P.V.Hardas and N.D.Deshpande, JJ.) on 11th September, 2008. The division bench after referring to the judgment of the learned Single Judge in Atmaram v. Shashad in paragraph 4 observed thus: “Considering the second submission which is advanced before us that the Bombay Village Panchayat Act contemplated the appellate jurisdiction to be exercised by the State Government and the State Government had delegated the powers to the Divisional Commissioner and, therefore, the Additional Commissioner in law was incompetent to decide the said case, a reference may usefully be made to the Judgment in “Atmaram Vs. Shamshadbi” (supra) of the learned Single Judge. The learned Single Judge in the said Judgment at paragraph 6 has examined the scope of sections 182 (4) and 184(2) read with section 16(2) of the said Act. The learned Single Judge came to the conclusion that since the State Government had delegated its powers only to the Commissioner, the exercise of appellate jurisdiction by the 7 Additional Commissioner was wholly incompetent in law. The learned Counsel for the respondent has produced before us a copy of the notification issued by the State of Maharashtra delegating the powers to the Additional Commissioner within his jurisdiction to the extent specified in column 2 of the Schedule. Column 2 of the Schedule deals with the exercise of powers of the appellate Court which is to be exercised by the State Government under the Act. 5. A reference at this juncture, may also be made to section 182(1). Section 182(1) reads as follows: 182 (1) The State Government may, by notification in the Official Gazette, authorise the Commissioner or any other officer to exercise any of the powers which may be exercised by the State Government under this Act.” In the light of the fact that the statute permits the delegation of the power by the State Government either to the Commissioner or to any other officer to exercise any of the powers which may be exercised by the State Government under th Bombay Village Panchayats Act, and in the face of a notification, delegating the powers exercisable by the State Government to the Additional Commissioner, according to use, the Judgment on which reliance is placed by the appellants is inapplicable to the facts of the present case. In the light of that we do not find any merit in the submissions advanced on behalf of the appellants that the Additional Commissioner was not competent to decide the 8 case.” 8. In my opinion, the ground raised in the present writ petition is squarely covered by the judgment of the Division bench in Namdeo Yeduba Pandhare’s case and, therefore, the second ground also deserves to be rejected. 9. Insofar as the third ground of challenge is concerned, Mr.Bansode, learned counsel for the petitioner could not and did not produce any material on record to show that the house and the shop, as alleged is not in Gat No.517, which is the Government land. Both the authorities below after having considered the entire material placed before them, recorded a categoric finding that there is an encroachment by the petitioner on the Government land. Considering that there are concurrent findings recorded by the authorities below and as I find sufficient evidence on record to sustain those findings and considering extremely limited jurisdiction of this court under Article 227 of the Constitution of India to disturb the findings of fact the present writ petition cannot be entertained. In the result the writ petition fails and dismissed as such. (D. B. Bhosale, J.)