( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5584 OF 2010 Bhushan Mahadu Wagh PETITIONER VERSUS The State of Maharashtra & another RESPONDENTS .... Mr. Mukul Kulkarni, advocate for the petitioner. Mr. V.B. Patil, advocate for the respondent No. 2. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th June, 2010] PER COURT : 1. Heard learned counsel. 2. The petitioner challenges concurrent findings of the Additional Collector and the Additional Divisional Commissioner, Nasik. The petitioner is held disqualified under section 14 (1) (j-3) of the Bombay Village Panchayats Act, 1958 (for short, “the BVP Act”). The authorities noticed that the petitioner was residing together with his mother in a house property bearing municipal No. 465 which is constructed after committing encroachment on Government land. The contention of the petitioner is that findings of the ( 2 ) Additional Collector and the Additional Divisional Commissioner are perverse. It is contended by the learned counsel for the petitioner that the report of the Tahsildar does not show any concern of the petitioner that the house No. 465. He would submit that the petitioner resides separately from his mother by name Sunderabai. He also argued that once the objection raised by the defeated candidate was rejected by the Returning Officer at the time of scrutiny of the nomination papers, the only remedy for the defeated candidate was to file election petition and that the petitioner could not be disqualified to continue as member of the Municipal Council. 3. The authorities below held that the entries in the Namuna No. 8 of the house property clearly, showed that the house was encroachment on the Government land. The Gram Sevak also issued such certificate. The entries in the ration card showed that the petitioner and his mother were residing together in the same house and were members of the joint family. The District Collector noticed that the house was standing in the name of mother of the petitioner, but she apparently executed a souda-pawti in favour of one Devidas Patil. Such transfer, which is illegal in the eyes of law, ( 3 ) does not give any umbrella of protection to the petitioner. The petitioner's case is that he is unconcerned with the house because he resides separately from the mother. However, the entries in the ration card gave serious jolt to such contention. There was no evidence adduced by the petitioner to show that the house property was lawfully acquired by him or his mother. In this view of the matter, it is difficult to entertain the disputed questions of fact in the petition. 4. So far as the objection regarding bar to interfere with the declaration of disqualification is concerned, learned counsel seeks to place reliance on “ State of Himachal Pradesh v. Surinder Singh Banolta” 2006 Law Suit (SC) 1077. In the given case, the person was declared to be encroacher prior to the date of scrutiny of the nomination paper and that declaration had attained finality. The Apex Court held that when his nomination paper was rejected, then the disqualification so declared could not be separately challenged, but such a person, whose nomination was rejected, ought to have sought remedy by way of election petition. In the present case, there is no question of challenging election of the petitioner. The disqualification is for his continuation as member and not for his election. ( 4 ) The impugned orders are not found to be arbitrary and, therefore, no interference is called for. Petition is dismissed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp5584-10