1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4903 OF 2011 Sau Padmavati C. Bhandare R/at 14/480, Tambe Mal, Ichalkaranji, Tal.Hatkanangale, Dist.Kolhapur .. Petitioner Versus 1) The Collector, Kolhapur District, Kolhapur 2) Subhash R. Kurkute, R/at 21/2097, Ligade Nala, Ichalkaranji, Tal.Hatkanangale, Dist.Kolhapur 3) State of Maharashtra through Hon’ble Chief Minister, and Ministry of Urban Development .. Respondents Mr.D.W.Bhosale for the petitioner. Ms.P.S.Cardozo, A.G.P for the State. CORAM : S.C.DHARMADHIKARI, J. RESERVED ON : 4th August 2011. PRONOUNCED ON : 6th September 2011. ORAL ORDER: . Rule. Repsondents waive service. By consent Rule 2 made returnable forthwith. Heard both sides. 1] The petitioner in this petition is an elected Councillor of Ichalkaranji Municipal Council. She has been disqualified on account of illegal and unauthorised construction carried out by her spouse, Chandrakant Bhandare. That construction was found to be carried out on property bearing No.13/1192/1. This property belongs to the petitioner's spouse Chandrakant. As far as the petitioner is concerned, she denied that any unauthorised construction was carried out by her husband during the term of her office. However, the admitted position is that the property belongs to Chandrakant who is her husband. As far as the construction thereon is concerned, in the report of the concerned office (Section Engineer Mr.Sanjay Bagade), it was revealed that the area occupied by the construction is 665.43 sq.mtrs. There was a difference between the area recorded at the time of making an entry in the assessment extract for the year 2008-09 and that was 3 reflected as 632.59 sq.mtrs. That area comprises of the residential area and a factory wherein there is an office and power looms. That area was recorded as 632.59 sq.mtrs. However, during the actual measurement by Section Engineer, the area computed and arrived at admeasures 665.43 sq.mtrs and that was alleged to be due to one room constructed on the second floor of the residential building. 2] In her reply the petitioner stated that this construction has been carried out with proper permissions and in any event, it cannot be said to have been carried out during the term of her office. The petitioner cross examined the concerned persons/ officials who stated that there is an increase in the year occupied by the construction from the year 2004-05 and as certified and noted in the assessment extract for the years 2008-09. Although, the witness stated that he is not aware as to when this construction was carried 4 out and he may not be able to state exactly when after the commencement of the term of the petitioner, the same has been carried out, yet he denied the suggestion that the construction was not carried out during the term of office of the petitioner. It has also come on record that petitioner's husband Chandrakant has not voted as a voter at the election which was contested by his wife – petitioner herein, from the concerned ward. It has also come on record that the above property belongs to petitioner's husband and that beyond assessment register, there is nothing on record to show that the construction was carried out during the term of office of the petitioner. However, the actual measurement showed the above area which was held to be beyond what was recorded in the assessment register and for which the taxes were levied and assessed and collected. 3] The only contention raised before me is that the 5 construction carried out by the petitioner's husband cannot be said to be unauthorised or illegal because there is no notice given by the Municipal Council in this behalf. Further, it was argued that there was no evidence on record to show that the construction allegedly carried out was during the term of the petitioner as Councillor. 4] Thirdly, it is contended that the husband of the petitioner is not a voter from the ward from which the petitioner is elected. Lastly, it was faintly suggested that there are no details of the unauthorised construction. 5] There is no merit in each of these contentions. On perusal of the entire materials, including a scrutiny of the oral and documentary evidence, this is what the Collector has held:- 6 “ Another property bearing No.13/1192/1 belong to the spouse Shri Chandrakant Eknath Bhandare of respondent Padmawati Bhandare. As per the submission in form of an affidavit dated 5th August 2010, by her spouse Shri Chandrakant Bhandare he submitted that he obtained building permission and it is entered in assessment record of 2008-09 showing area under construction as 632.59 sq.mtrs. However, during the actual measurement carried out by Section Engineer, Shri Sanjay M. Bagade, the area under construction found to be 665.43 sq.mtrs due to one room constructed on second floor. Shri Bagade told that Shri Chandrakant Bhandare was present at the time of measurement. But strangely, in his affidavit dated 5th August 2010, he submitted that Shri Sanjay Bagade did not took measurement by coming to site and wrongly mentioned the existence of 2nd floor. He also submitted certificate of Mr.S.M.Oza, Architect dated 5th August 2010 that there is no second floor to the building and there is only a staircase tower. This submission and certificate of an architect seem to be after thought and it is informed by Mr.Bagade and that Mr.Chandrakant Bhandare demolished it hurriedly after measurement by Shri Bagade in light of pending case of disqualification of his wife. The measurement was ordered by me as per the agreement of the Advocates of both petitioner and respondents and it was clearly mentioned by me to the Advocates to keep their client at the site of measurement on pre-determined dates. Therefore, there is nothing on record to show that Sanjay Bagde did not go to site for measurements. His 7 report show dimensions (length and width) of each room meticulously which is not possible without actual site visit and measurements. Therefore, the defence of Shri Chandrakant Bhandare that Mr.Bagde wrongly mentioned the non-existent second floor in his affidavit dated 5th August 2010 is not acceptable.” “ I hold that a room on second floor was built illegally by Shri Chandrakant Bhandare during the councillorship of Padmawati Bhandare, thus respondent councillor attract the provisions of section 44(1)(e) of the Act and liable to be disqualified to be the member of Municipal Council of Ichalkaranji.” 6] From a perusal of the above it is clear that it is immaterial whether the husband of the petitioner was an elector from some other ward. The construction was carried by the petitioner's husband and the same is illegal and unauthorised, because there are no proper permissions and the same violates the provisions of the Municipalities Act as also the MRTP Act and Building by-laws and the Rules framed thereunder. The measurements carried out demonstrate that there is difference in the area and that difference is attributed 8 to the construction on the second floor. The petitioner and her husband went to the extent of pointing out that there is no second floor but there is only a staircase Tower. Even that is found to be a false plea inasmuch as the construction was noted at spot inspection. That the petitioner's husband was present at the spot inspection is clear and further the spot inspection and measurement was directed with the consent of the petitioner and her husband. In these circumstances, the further false plea that there was no measurement carried out or that the said Sanjay Bagade did not visit the site for carrying out measurement is rightly rejected and discarded by the Collector. The report indicates that the dimensions of each room and the measurement is not in accordance with the prescribed norms. The construction has been reflected in the measurement and even in the extract of the assessment for the years 2008-09. In such circumstances, the argument that there was no details of the construction cannot be accepted. 9 7] To my mind, findings of fact are based on the materials that have been produced before the Collector and he was right in concluding that the construction was carried out during the term of petitioner as councillor and further Chandrakant Bhandare is her spouse and the construction is violative of provisions of subject enactment and the MRTP Act and building by-laws and rules framed thereunder. 8] For all these reasons, this is not a fit case for interference in writ jurisdiction. The petition, therefore, fails and is dismissed accordingly. Rule is accordingly discharged. (S.C.Dharmadhikari, J).