ORAL JUDGMENT :
1. Rule. Learned Counsel for the respondents waive service. By consent, Rule is made returnable forthwith. Heard both sides.
2. By this Writ Petition under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order passed by the Additional Commissioner, Konkan Division, in Gram Panchayat Appeal No.441 of 2011 dated 31st h December 2011. That appeal challenges the order dated 25th July, 2011 of the Collector, Thane in Gram Panchayat Appeal No.14/10/11.
3. The petitioner is a member of the Gram Panchayat Shelar Taluka Bhivandi, District Thane. The elections of the said Gram Panchayat were held on 24th October, 2010. The petitioner was elected from Ward No. 6-f which was reserved for Scheduled Caste. It is the case of the petitioner that he attended first General Body Meeting of the Gram Panchayat held on 14th November, 2010. His first term of office commenced with effect from this date in terms of Section 28(1) of the Bombay Village Panchayats Act, 1958 (for short âthe Actâ).
4. An application dated 15th October, 2011 was filed before the Collector Thane, complaining that the petitioner had encroached upon the Government land bearing CTS No. 1448/1 at Mouje Shelar Taluka Bhivandi Dist. Thane. He had made a construction admeasuring 609 square feet. The property was assessed as House No. 320. It was also urged that the Petitioner stood disqualified in terms of Section 14(1) (j3) of the said Act. 5. The petitioner filed a reply to this application and urged that to support the above allegations, reliance is placed on the report of the Tahsildar, Bhivandi dated 19th January, 2011. This report shows that the construction of a cattle shed has been made in 1996. The Gram Panchayat has assessed the same w.e.f. 2000. The petitioner contended that there is no allegation that after he was elected and was continuing as member of the subject Gram Panchayat that any such encroachment was made. The construction has been made in the year 1996 and assessed from the year 2000. In such circumstances, there is no question of the petitioner incurring any disqualification and therefore his seat cannot be declared as vacant. There are other issues which have been raised and what has been stated is that the construction which has taken place much prior to the elections cannot be brought within the purview of the dispute which has been raised in the year 2011. In any event, that could have been made subject matter of a election petition under section 15 and which has not been filed. In these circumstances, relying upon some judgments of this Court, it was contended that the complaint be dismissed. This reply was filed by the petitioner on 19th  April, 2011.
6. The collector after hearing both the sides, has held that the property bearing No. 320 is assessed in the name of the petitioner. There has been an assessment which has been levied on this property which is styled as âa construction of RCC. This is a construction which is unauthorized and illegal because no permission was obtained. The land is shown as reserved for cattle grazing and the construction that has been made is for residential and commercial purpose. In these circumstances, the petitioner is disqualified and his seat was declared vacant by the order dated 25th July, 2011.
7. This order was challenged before the Commissioner, Konkan Division who has concurred with the Collector in holding that the construction that has been made is made on public property. The land reserved for cattle grazing is for the purpose of the entire village. On such land, construction has been made and which construction is without any permission or authority from the Village Panchayat. In such circumstances, the petitioner stands disqualified. More so because the construction has not been regularized till date.
8. These orders are under challenge in this Writ Petition.
9. Mr. S. M. Oak, learned counsel appearing on behalf of the petitioner submitted that reliance has been placed by both authorities on the report of the Tahsildar. That report of the Tahsildar if carefully perused, does not indicate that the construction that has been made is of such nature which is impermissible. It denotes that the construction which has been made may be of cement and bricks and admeasuring 20 x30 feet but it has been used as cattle shed. Such construction which has been made allegedly by encroaching on the Government land has been existing since1996 and equally assessed to house property tax from the year 2000. Mr. Oak therefore submits that both the orders are contrary to law, inasmuch as there is no construction or encroachment made on the Government land.
10. Mr. Oak has relied upon the additional affidavit of the petitioner, in which affidavit a statement is made by him that old Survey No. 140 corresponds to New Survey No.1484/1. By notification dated 13 September 1984 certain lands in village Shelar were included as Gavthan land and area admeasuring 1 H 63 R was Gavthan area. Even 7/12 extracts of Survey No. 1484/1 records that area admeasuring 1 hector had some construction whereas area admeasuring 2 R. is pertaining to a school. In these circumstances, this land is not a Government land and therefore the provisions themselves are not attracted. Reliance is placed on this affidavit dated 15th June, 2012 Exh. 'A' to this affidavit and equally 'B'.
11. Reliance is also placed on the judgment of Honble Mr. Justice B. P. Dharmadhikari rendered in the case Shrikrishna Wasudeo Dhage vs. Shivcharan Trimbakrao Kalne, 2010 (3) Mah. L.J 281. Reliance is also placed on the judgment of the Honble Supreme Court in the case of State of HP and others vs. Surendra Singh Banolta , (2006) 12 Supreme Court Cases 484.
12. On the other hand Advocate appearing for the contesting respondents submits that all such contentions as are raised today and on prior occasion are an afterthought. They were not raised before the authorities. Inasmuch as, if the land is not a Government land at all, then, the petitioner was free to bring  to the notice of the Additional Commissioner and equally the Collector, the material now brought before this Court. Secondly, the argument that the proceedings themselves are not maintainable in the light of Article 243 N and 243O of the Constitution of India was never raised. The construction is on a land which is meant for grazing of cattle and thus a land which is meant for villagers and used by them. It is not a land which is private in character. It is thus a Government land or in any event public property. In such circumstances, the orders under challenge do not merit any interference in writ jurisdiction and the writ petition be dismissed.
13. With the assistance of the learned counsel appearing for the parties, I have perused the writ petition, all annexures thereto including the impugned order. I have also perused the relevant statutory provisions and equally the constitutional provisions.
14. Mr. Oak has very vehemently contended that section 16 (1) of the Bombay Village Panchayats Act to the extent it inserts clause (a) therein or retains it and continues it after the constitutional amendment is effaced because of Article 243N, by which existing laws and Panchayats are continued, but when it makes it abundantly clear that any provision which is inconsistent with the constitutional provision cannot be retained in law relating to Panchayat in a Provincial State immediately before the commencement of Constitution (73rd Amendment of 1992) and that law will have to be amended. If it is not amended or repealed by the competent legislature or other Competent Authority, then, such law which is inconsistent will continue only for period of one year from such commencement or until amended as above, whichever is earlier. He submits that Section 16(1) ( a) of the Act is inconsistent with Article 243O of the Constitution of India, therefore, null and void and be declared as such.
15. It is not possible to accept this contention. Section 16 of the Bombay Village Panchayats Act reads as under:
16. â(1) if any member of a panchayat,
(a) who is elected or appointed as such, was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment, or
(b) during the term for which he has been elected or appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant.
(2) if any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the collector decides the question, the member shall not be disabled under subsection 1) from continuing to be a member. Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final.
16. Upon perusal of Section 16 together with provisions prior to the same would make it apparent that the disqualifications for being elected as member of the Grampanchayat have been enlisted in Section 14. Section 14A then makes disqualification arising out of certain convictions and corrupt practices as disqualification for being elected as member of the village panchayats. Section 14 B deals with disqualification by State Election Commission. Section 15 provides for a forum for determination of validity of elections and enquiry therein, the procedure therefor and then comes Section 16.
17. A learned Single Judge of this Court in the case of Suvarna Prakash Patil Vs. Anil Hindurao Powar (2004 (1) Mh.L.J. 1062) had an occasion to consider the ambit and scope of section 16 of the Act. The learned Judge made certain observations after interpreting the statutory scheme and with which I have concurred in a later judgment which has been delivered by me in the case of Dnyaneshwar M.Satav Vs. Jalindhar Dhondiba Kharabi in Writ Petition No.88 of 2012 decided on 18/09/ 2012. The ambit and scope of the provisions in question, the nature of the proceedings are therefore peculiar. There is power to question the validity of election and determination of dispute in relation thereto and that is a forum which has been made available by Section 15. There is a provision by which disability to continue as a member upon election is taken care of and that is an aspect dealt with by Section 16. Section 16 is therefore on the statue book because it is not pertaining to validity of election as understood in Section 15. It is a provision which enables the question of vacancy caused by disability to continue as a member to be decided. The disability to continue might arise on the basis of disqualification incurred subsequent to election or person who might be disqualified for being elected has been elected but his continuance is put in issue. Therefore, the words âdisqualification and âdisability both have been used by the State Legislature and with some specific object and purpose. The disqualification disables a person to continue. Disability also arises if a legal right is impaired or sought to be curtailed and that in this case is to continue as a member of the Grampanchayat. I do not see how any conflict arises because the State legislature deems it fit not to either repeal or do away with section 16(1) ( a). Section 16 therefore covering a broad field and enabling a very wide question to be agitated and raised, that does not mean that by virtue of Article 243N, the same is inconsistent and therefore stands repealed  automatically. I do not find any inconsistency. Even in the constitution of India itself one may note several Articles by which upon election as a member of the Loksabha/Parliament or Council of States, a question of person's disqualification can be raised and the President of India has been empowered and equally the Governor of the State to take note of such issues and have them decided (See Article 102 and Article 191 of the Constitution of India). Therefore, there being no inconsistency, I do not find that Section 16(1)(a) stands repealed being inconsistent with Article 243N of the Constitution of India. There cannot be any inconsistency with Article 243O because this is not a case of only a persons election being questioned but what is being questioned is his disability to continue on the footing he was disqualified for being elected. Mr Oak's submissions overlook the constitutional provisions and Articles. Article 243F of the Constitution of India reads as under:
Article 243F. (1) A person shall be disqualified for being chosen as, and for being member of a Panchayat-
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.â
18. Section 16 of the Act is on par with this Article and in fact gives effect to the Constitutional Scheme enshrined in Part IX of the Constitution. Mr. Oak's argument also overlooks the distinction made in Section 15 and Section 16. An issue of validity of elections in terms of the earlier provision can be raised by any candidate at such election or by an person Qualified to vote at the election to which such Question refers whereas the Question of vacancy caused by the disability of a member to continue can be raised by the Collector suo moto or on an application made to him by any person. Therefore and when the Question can arise in case of elected or appointed members, then, I see no inconsistency between Section 16 (1) (a) and Article 243O of the Constitution of India.
19. In this context, a reference can usefully be made to a decision of the Hon'ble Supreme court reported in the case of Vijay Vs. State of Maharashtra and others, (2006) 6 SCC 289, wherein the Hon'ble Supreme Court has held as under:
â7. The said Act is a disqualifying statute. A plain reading of the amended provision clearly shows that it was intended by legislature to have retrospective effect.
8. The general rule that a statute shall be construed to be prospective has two exceptions: it should be expressly so stated in the enactment or inference in relation thereto becomes evident by necessary implication.
9. In the instant case it is stated expressly that the amendment would apply also to a case where the elected candidate had been elected as a member of Panchayat earlier thereto. It not only incorporates within its purview all persons who would be members of the Panchayat in futuro, but also those who were sitting members. In other words, the bar created to hold the post of member of Panchayat would bring within its purview also those who were continuing to hold post.
10. It may be true the amendment came into effect on 8.8.2003. The legislative policy emanating from the aforesaid provision, in our opinion, is absolutely clear and unambiguous. By introducing the said provision, the legislature, inter alia, intended that for the purpose of bringing grassroot democracy, a person should not be permitted to hold two posts created in terms of Constitution (73rd Amendment) Act. 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 a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute intendment of the legislature is clear, the Court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. [See Govt. of India and Ors. vs. Indian Tobacco Association, (2005) 7 SCC 396.]
"The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statutes are so construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye,(1861) 10 C.B. NS 179 at p.191 in the following words:
"Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment."
This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power."
11. While construing the beneficial provisions of 428 of the Criminal Procedure Code, 1973 in Boucher Pierre Andre vs. Superintendent, Central Jail, Tihar, New Delhi and Anr. [(1975) 1 SCC 192], this Court opined:
"This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause "where an accused person has, on conviction, been sentenced to imprisonment for a term". There is nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the new Code of Criminal Procedure. The language of the clause is neutral. It does not refer to any particular point of time when the accused person should have been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new Code of Criminal Procedure. Even where an accused person has been convicted prior to the coming into force of the new Code of Criminal Procedure but his sentence is still  running, it would not be inappropriate to say that the "accused person has, on conviction, been sentenced to imprisonment for a term". Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new Code of Criminal Procedure came into force. Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the term.â
12. The appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well-settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same  would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the legislature in this behalf.â
20. The next contention of Shri Oak is that the construction in question is made in 1996 and it was assessed for payment of Grampanchayat taxes in the 2000, therefore such construction could not be said to be covered and at best the aggrieved respondents could have raised this issue by filing election petition but subsequent to the election as member of the Grampanchayat, the petitioner's right to continue as member cannot be questioned by raising the issue of this old construction.
21. It is not possible to accept this contention either. In the case of Dnyaneshwar M. Satav Vs. Jalindhar Dhondiba Kharabi in Writ Petition No.88 of 2012 decided on 18th September, 2012, I had dealt with precisely such a contention. Mr. Oak has fairly brought this judgment to my notice. In Paragraphs 40 to 45 Â of this judgment this is what is held :
40} Now what remains to be dealt with is the case that construction has been made fifteen to twenty years back, cannot now be construed and termed as encroachment on government land or public property.
41} Mr.Dani rightly does not urge that the provision in question has no retrospective operation or the  Authorities cannot take into account any act of the present nature merely because it was committed much prior to the initiation of the proceedings or the assumption of office as Member of Gram Panchayat. In any event, as far as this aspect is concerned, it is concluded by a judgment of this Court in Writ Petition No.5544 of 2010 (Balwant Shankar Patil vs. Shashikant P. Patil and Ors) decided on 18th October 2011.
42} Mr.Dani's contention is that the encroachment has been allegedly committed by construction of a house in 199495 and that was to the knowledge of all, including, the respondent No.1. That act cannot be made the basis or foundation for disqualifying the petitioner after his elections in  2010. The contention put in other words is also that if the 1st respondent objector had opportunity to question the-nomination of the petitioner and which he availed of but was unsuccessful in having it rejected, then, at his instance the proceedings in question could not have been initiated. Thus, section 16 cannot be resorted to at the instance of an objector like respondent No.1 who was a rival candidate and who objected to the nomination of the petitioner but when his objection is rejected, he maintains silence thereafter. He allows the election process to be completed. When results are also declared he does not file any election petition within the prescribed period. Now, after the period for filing an election petition is over, he has initiated such proceedings so as to disable the petitioner and prevent him from continuing as a Member. That would mean that the petitioner and persons like him can be vexed twice over. That is not permissible in law.
43} In my opinion, the above contentions of Mr.Dani are totally misconceived and untenable. A Gram Panchayat is constituted under section 10 of the Act and it consists of such number of Members not being less than seven and not more than seventeen, as the State Government may prescribe, who shall be elected in accordance with section 11. The elections to the Gram Panchayat have to be held by the State  Election Commission in terms of section 10A and by following the procedure and manner laid down in section 11. Thereafter, section 12 provides for the list of voters and section 13 enlists the qualifications to vote and be elected. Section 14 prescribing dis-qualifications commences with subsection 1 and states that no person shall be a Member of Panchayat continue as such and then clauses (a) to (k) together with the provisos and explanations, set out the disqualifications. One of the dis-qualification is, if the person has encroached upon the government land or public property, then, he cannot be elected as a Member and if elected, cannot continue as such.
44} In the present case, it is not disputed that the construction is on government land (Gairan). Whether it is made over for management to the Panchayat or otherwise, there appears to be no dispute raised throughout that the encroachment is on government land or public property. The question is that if such encroachment is disqualification for an elected office, then, did the legislature envisage that the determination or adjudication with regard to this disqualification can only be by an election petition as set out in section 15 of the Act or could it be by resorting to section 16 as well.
45} Section 16 of the Act comes after section 15A. It cannot be held that the legislature was unaware that after the constitutional amendment under which Part IX and IXA came to be introduced in the Constitution of India setting out inter alia a bar to interference by the Court in electoral matters that section 16 will be resorted to or could be taken aid of. The legislature did not deem it fit to clarify anything but retain section 16 in the same form and once it is so retained and with an obvious purpose, then, to brush aside the plain language of the same is impermissible. Section 16 deals with disability from continuing as a Member. That disability is on account of disqualifications which are mentioned in section 14. That a person who is duly elected or appointed was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment or such Member incurs the disqualification during the term for which he has been elected or appointed, are both matters which disable him from continuing and, therefore, covered by this section. His office shall become vacant the moment he is disqualified. The question whether any vacancy has occurred under this section, if raised suo motu or on an application made by any person, has to be decided by the Collector. Therefore, it would not be possible for me to ignore this section and its language, which is plain, unambiguous and clear. There is no scope for interpretation if this plain language is taken into consideration.â
22. In such circumstances, when the construction was made is wholly irrelevant. That would mean that the provision has a retrospective operation according to this argument which taken to its logical end is not accurate. That such provision can take into consideration past events and antecedents prior to it being  enacted is equally well settled. That does not make the provision retrospective. Encroachment on Government land or public property by those seeking election to Local bodies has always been a vexed question. The persons desiring to hold public office and indulging in such act can hardly be said to be true representatives of the people. Their moral character has to be spotless if they desire to represent the people. Any person seeking to represent or representing common man should not be accused of any encroachment on Government land or public property. It is well settled that the provisions deal with encroachment on Government land or public property. The argument that this not a Government land and therefore there is no encroachment is thus without force.
23. The encroachment is on government land which was earmarked for grazing of cattle and that it is part of a Gaothan and that is what is urged now is equally an argument in frustration and desperation because the concept of Gaothan is not something which was absent to the legislature. The legislature was aware of all such usages, designations and earmarking. Therefore, advisably very wide words and above terminology, as would have far reaching consequences, has been used. It is not only a Government land on which the encroachment is found to be an act which disqualifies a person from being elected or continuing as a  member. An act of encroaching on public property equally invites similar consequences  and a bar for being elected or continuing in office. The distinction between government land and public property has also been made in a decision to which I was a party. In the case of Shantaram Narayan Raut Vs. Additional Collector and others, Writ Petition No.3241, decided on 4th September, 2012, similar Question was answered as under:
â18 In the instant case, disability is on account of Section 14(1)(j3) which states that no person shall be a member of the Village Panchayat or continue as such who has encroached upon the Government land or public property.
19. While it is true that both these terms are not defined in the Act and they take their colour from ordinary and common parlance, yet these have legal connotations. They have some purpose and meaning. Their definite legal impact has always been understood and if one is required to refer to their meaning in a Statute or law, a reference can usefully be made to the Advanced Law Lexicon by P. Ramanatha Aiyar, 3 rd Edition Reprint 2007 , in which the term âGovernment landâ has been defined to mean the land belonging to the Government i.e. the land of which the Government is the proprietor and does not include the land in which the proprietary rights in the soil vest in a private individual, whether or not it be subject to payment of assessment to the Government.
20 The term âpublic landâ has also been defined in this very work to mean such lands vesting in the Government and which are subject to sale or other disposal under the general laws. The terms âpublic landsâ or âpublic domainâ are habitually used to describe such as are vested in the State and which are subject to sale or other disposal under the general laws. There is no statutory definition of the words âpublic landâ and their meaning may vary for different purposes and they should be given such meaning in each case as comforts with the intention of the parties using the lands. However, the work also clarifies the land or land interest held by the Government without regard to how the Government acquired ownership; un-appropriated land belonging to the federal or State Government is also termed as public land and its other meaning is the Government land and public ground.
21. Equally, the term âpublic propertyâ has been always understood to mean the property owned by the Government or local bodies on behalf of the community in general. The âpublic propertyâ means any property belonging to the Government or any local authority. The Prevention of Damage to Public Property Act, 1984 defines the term âpublic propertyâ as under:
âSection 2. Definitions:
(b) âpublic propertyâ means any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in Sec.617 of the Companies Act, 1956; or
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided that the Central Government shall not specify any institution, concern or undertaking under  this subclause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments.â 22 It is clear that the Bombay Village Panchayats Act, 1958, specifies encroachment on Government land or public property. Encroachment means an act which is wrongful and illegal or not permissible in law. That is how encroachment upon Government land or public property is understood. The  term âpublic propertyâ is also used in the provision, so also, âGovernment landâ. The encroachment on the Government land or public property which includes public land, is an act which invites disqualification. However, when there is disqualification from being elected or continuing as a member for having committed encroachment on the Government land or public property, then, the concept has to be understood in the context of what can be described as Government land or public property. The words have not been used in the sense that a land or property capable of being used by the Government or public will come within the legal provision in question. The land or property must be a Government land or public property and that can only be as set out above.  It cannot be a vague or indefinite concept or else that would create confusion and chaos. Ultimately, the words find their place in the Bombay Village Panchayats Act, 1958 which is an Act to provide for constitution and administration of the Village Panchayats.
25. The public property is one to which the members of public have free and unrestricted access. That place or land or property may not be owned by the Government or local authority, but if it belongs to or is donated or granted or allotted for use of the members of public, then, it is broadly understood as public property. The open space in the village meant for use by the public or members of public or villagers is certainly a public property..â
24. The word âGaothanâ is Gaothan is defined in Section 2(10) of the Maharashtra Land Revenue Code, 1966 as under:
"Gaothan " or " village site" means the land included within the site of a village , town or city as determined by section 122 ;â
25. Section 122 provides for Limits of sites of villages, towns and cities and how they are to be fixed. That the land is designated as Gaothan and therefore it is within the village limits, cannot be of any assistance to the petitioner. Gaothan or village site has been defined only for the purposes of showing that these are sites and lands within the limits of village. Thus, there is nothing in the Maharashtra Land Revenue Code, 1966 or any other law which states that such village site or land within village limit cannot be earmarked for grazing of cattle. If it is earmarked for grazing of cattle and report of the Tahsildar says that it is Gurcharan land, then it is definitely covered by the concept of public property. It is too late in the day to contend that making a construction on such land will not amount to encroachment. If that was the only argument, I do not see why the petitioner rested his case on the nature of construction that he made on this land. He says that he has made a permanent construction of bricks and cement but that is used as a cattle shed and therefore there is no encroachment on the land. Thus, the first argument and this plea cannot go together. If what the petitioner claims to have made is a permanent construction with bricks, stones and cement and that too without permission, and which is unauthorized and illegal terming it to be an encroachment, then he may claim to have used it as a cattle shed but it is a construction on Gairan land and by entering upon and encroaching it. However, both the Commissioner and Collector, while relying on the report of the Tahsildar committed no error because the report as also the findings are that this construction is used for residence and for commercial purpose. This is not a construction, which could be said to be therefore permitted or authorized. The construction of this nature is thus clearly covered by Section 14(1)(j3) of the Act.
26. The finding of the collector relying upon the above report is that the construction made has been assessed in the name of the petitioner. The construction has not been regularized, and therefore, the petitioner's act disqualifies him and disables him from continuing as a member of the Grampanchayat. The  Commissioner, while concurring with this finding, has relied upon the report. The report of the Tahsildar is that this construction is on Survey No. 148/1; the land is shown as Gurcharan and belongs to the Revenue Department. It has a construction admeasuring 20 x 30 feet and cattle was found tied there. However, this is a construction made without any permission and authority and assessed as a house property in the Grampanchayat record from the year 2000. In such circumstances, to now hold that this construction  cannot be said to be encroachment is impermissible. In writ jurisdiction, it is not possible to reassess and reappreciate the factual findings on record. Once the findings are consistent with the material placed and cannot be said to be perverse, then, the intervention in writ jurisdiction is impermissible.
27. The Collector and Commissioner have both found that the construction has been made by the petitioner. At page 20 and 21 of the paper book is a finding of the collector that the construction has been made on Government gurcharan land and it is of residential and commercial nature. In these circumstances, when such is the finding of fact, based on the material placed on record, then, it cannot be said that the impugned orders are vitiated by any errors of law apparent on the face of record or perversity warranting interference in the writ jurisdiction. Once the above conclusion is reached and only two grounds on which the orders under challenge are questioned, then there is no alternative but to dismiss this petition. Rule is therefore discharged. No costs.
28. The reliance placed on the judgment of Honble Mr. Justice B.P. Dharmadhikari in the case of Shrikrishna Wasudeo Dhage (supra) and that of the judgment of the Honble Supreme Court in the case of State of HP and others is misplaced. While dealing with identical challenge in the case of Dnyaneshwar M. Satav Vs. Jalindhar Dhondiba Kharabi in Writ Petition No.88 of 2012, I had an occasion to refer to both the judgments and I had distinguished the same. Suffice to refer paragraphs 49, 50, 51, 52, 53, 54, 55 and 56 of the said judgment. These paras read as under:
49} In these circumstances, it is not possible to accept the contentions of Mr.Dani that failure to file an election petition by the 1st respondent would result in present proceedings being ex-facie not maintainable. If on the same allegations and facts the election petition had been filed and 1st respondent was not successful in proving the same, then, dependent upon the findings and conclusions of the Court therein, in a given case, it could be held that a Member is not disabled and can continue till the expiry of his term. Ultimately, this could be a conclusion in facts and circumstances of a given case. No general rule can be laid down. However, it would definitely be a relevant factor and if the 1st respondent had raised similar objections, at the time of scrutiny of nominations, but, a detailed verification and enquiry revealed no substance in his allegations or if he is unsuccessful in proving the allegations at the trial of a election petition, then, one could have agreed with Mr.Dani that the present proceedings being vexatious in nature and on the general principle that no person can be vexed twice on the same set of facts and allegations, the proceedings before the Collector could have been disposed off if there was no fresh or other material. However, if the application filed by the 1st respondent in this case is perused in its entirety, it does not only set out the objections that have been raised at the stage of scrutiny of the nomination papers, but equally highlights the fact that there was no enquiry into these allegations nor a detailed scrutiny and therefore the petitioner can be held to be disabled to continue as Member if the question of his disability is gone into and decided by the Collector.
50} This is not a case of a parallel inquiry or proceeding. Nothing was pending on the date of filing the application under section 16 much less a election petition by a third party. Equally, there is no material on record to conclude that any prior adjudication or scrutiny in the allegations of encroachment by the petitioner has been held in which the same allegations were made and same documents were relied on. Once there was no final and conclusive determination and adjudication, then, holding that the present proceedings were not maintainable, would be doing violence to the plain language of section 16.
51} Even the judgment of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others vs. Surinder Singh Banolta reported in AIR 2007 Supreme Court 903 cannot be read in this manner.
52} Mr.Dani has heavily relied on this decision of the Hon'ble Supreme Court.
53} A closer look at the factual background in which this judgment has been rendered would reveal that section 122 of the State Act has been quoted by the Hon'ble Supreme Court in para 4, which reads as under:
49} In these circumstances, it is not possible to accept the contentions of Mr.Dani that failure to file an election petition by the 1st respondent would result in present proceedings being ex-facie not maintainable. If on the same allegations and facts the election petition had been filed and 1st respondent was not successful in proving the same, then, dependent upon the findings and conclusions of the Court therein, in a given case, it could be held that a Member is not disabled and can continue till the expiry of his term. Ultimately, this could be a conclusion in facts and circumstances of a given case. No general rule can be laid down. However, it would definitely be a relevant factor and if the 1st respondent had raised similar objections, at the time of scrutiny of nominations, but, a detailed verification and enquiry revealed no substance in his allegations or if he is unsuccessful in proving the allegations at the trial of a election petition, then, one could have agreed with Mr.Dani that the present proceedings being vexatious in nature and on the general principle that no person can be vexed twice on the same set of facts and allegations, the proceedings before the Collector could have been disposed off if there was no fresh or other material. However, if the application filed by the 1st respondent in this case is perused in its entirety, it does not only set out the objections that have been raised at the stage of scrutiny of the nomination papers, but equally highlights the fact that there was no enquiry into these allegations nor a detailed scrutiny and therefore the petitioner can be held to be disabled to continue as Member if the question of his disability is gone into and decided by the Collector.
50} This is not a case of a parallel inquiry or proceeding. Nothing was pending on the date of filing the application under section 16 much less a election petition by a third party. Equally, there is no material on record to conclude that any prior adjudication or scrutiny in the allegations of encroachment by the petitioner has been held in which the same allegations were made and same documents were relied on. Once there was no final and conclusive determination and adjudication, then, holding that the present proceedings were not maintainable, would be doing violence to the plain language of section 16.
51} Even the judgment of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others vs. Surinder Singh Banolta reported in AIR 2007 Supreme Court 903 cannot be read in this manner.
52} Mr.Dani has heavily relied on this decision of the Hon'ble Supreme Court.
53} A closer look at the factual background in which this judgment has been rendered would reveal that section 122 of the State Act has been quoted by the Hon'ble Supreme Court in para 4, which reads as under:
â4. The State of Haryana pursuant to the constitutional mandate as noticed hereinbefore enacted the Himachal Pradesh Panchayati Raj Act, 1994 (for short "the Act"). Chapter IX of the Act lays down general provisions relating to incorporation, duration, territorial constituencies of panchayat and qualifications, etc. of office-bearers. Section 122 of the Act provides for disqualifications, the relevant provisions whereof read as under:
"122(1) : A person shall be disqualified for being chosen as, and for being, an office bearer, of a Panchayat â
(a) if he is so disqualified by or under any law for the time being in force for the purposes of the election to the State Legislature:
Provided that no person shall be disqualified on the ground that he is less than 25 years, if he has attained the age of 21 years;
(b) * * *
(c) if he has encroached upon any land belonging to, or taken on lease or requisitioned by or on behalf of, the State Government, a Municipality, a Panchayat or a Co-operative Society unless a period of six years has elapsed since the date on which he is ejected there from or he ceases to be the encroacher; or
* * *
(2) The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided â
(i) if such question arises during the process of an election, by an officer as may be authorized in this behalf by the State Government, in consultation with the State Election Commission; and
(ii) if such question arises after the election process is over, by the Deputy Commissioner."â
54} The Issue raised before the Hon'ble Supreme Court was when a person shall be disqualified for being chosen as and being office bearer of the Panchayat. If he has encroached upon the land belonging to or taken on lease or acquisition or on behalf of the State Government Municipality Panchayat etc, it is a ground on which he can be disqualified. It can be raised and decided, but, if it arises during the process of election it has to be decided by the State Government in consultation with the State Election Commission and if the question arises after the election process is over, it has to be decided by the Deputy Commissioner. Then, section 163 is referred to in para 6 which provides for the remedy of a election petition. The factual aspects were noted inasmuch as there the  application was filed by respondent No.2-Daulat Ram alleging that Surinder Singh Banolta was declared an encroacher and he was, therefore, disqualified to hold the elected post and thus should not be continued therein. The Deputy Commissioner took cognizance of the complaint and by his order dated 4th June 2002, declared Surinder Singh Banolta as disqualified.
55} Then, the facts in relation to the encroachment are referred to and what has been held by the Hon'ble Supreme Court is that the 1st respondent was declared to be an encroacher in the year 1998. The Notification for election was issued on 16th November 2000 and the 1st respondent before the Supreme Court was declared elected on 5th January 2001. An election petition was, therefore, maintainable for setting aside the election. The Supreme Court by agreeing with the High Court held that in terms of section 163 of the Act, an election petition, therefore, was maintainable for setting aside the election.
56} Equally, what the Hon'ble Supreme Court held is that the Deputy Commissioner could not have taken cognizance of the question of disqualification of the 1 s t respondent as it did not arise after the election process is over. The Deputy Commissioner's jurisdiction to decide such question was restricted and he could have decided it only if it arises after the election process is over. If the respondent No.2 before the Supreme Court was desirous of raising that question of disqualification during the process of the election, he would have to raise it before the State Government. There, issue was that the 1st respondent was disqualified for being chosen as an office bearer of the Panchayat. That question could have been determined only by the authorised officer in terms of  section 122(1). In this context, paras 17 and 18 of this decision are clear enough and they read as under:
â17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has attained finality, the question as to whether he stood disqualified in terms of the provisions of Section 122 of the Act, in our opinion, must be raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.
18. If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application. The order of eviction may come to the notice of some other person after the election process is over. A situation, thus, may arise where two different proceedings may lie before two different authorities at the instance of two different persons. Two parallel proceedings, it is well settled, cannot be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoided. It will also lead to an absurdity if two different Tribunals are allowed to come to contradictory decisions.â
29. In the circumstances when the Supreme Court judgment is distinguished on the basis of phraseology of section 16 of the Bombay Village Panchayats Act and the judgment in the case of Shrikrishna Wasudeo Dhage (Supra) was distinguishable because of the peculiar facts therein, then, I do not see how any assistance can be derived from these judgments. In fact the judgment in Shrikrishna Wasudeo Dhage (Supra) is being misread repeatedly and that is what I have held in the judgment in the case of Dnyaneshwar M. Satav Vs. Jalindhar Dhondiba Kharabi in Writ Petition No.88 of 2012 Dnyaneshwar, particularly in para 57, which reads thus:
57} Thus, what this decision holds is that a election petition raising the same issue may be filed. Equally, somebody may not file a election petition but a application seeking to disqualify that very elected candidate. Thus, an election petition and such application may lie before two different authorities at the instance of two different persons and both may go on. Such parallel proceedings cannot be allowed to continue at the same time. To avoid contradictory and conflicting decisions that the Hon'ble Supreme Court construed the provisions in question accordingly. Beyond that, the Supreme Court judgment does not carve out a bar to the maintainability of the proceedings. Even in the Act before me, the Collector or the State Government in a given case may not proceed with the application under section 16 if on the same allegations and facts, a election petition is pending trial. The Supreme Court decision, thus, does not assist Mr.Dani. Particularly, when the above reproduced paras are read together. While following this decision, what the learned single Judge of this Court held in the case of Shrikrishna Wasudeo Dhage vs. Shivcharan s/o Trimbakrao Kalne and others reported in 2010(3) Maharashtra Law Journal 281, that the question whether the nomination paper of the petitioner before the learned single Judge can be rejected under section 14(1)(j3) cannot be gone into an election petition under section 15. Election petition under section 15 can question the validity of the elections. However, a careful reading of the judgment of the learned single Judge would reveal that the petitioner therein was regarded as an encroacher in 20072008 and she has tried to get the encroachment regularised. However, these events are after her election. The contention that was raised before the learned single Judge was that this encroachment, therefore, could have been used to challenge her election by filing election petition under section 15 of the Act, was clearly misconceived. On that ground, the proceedings under section 16 were questioned and it was urged that they were not maintainable. The learned Judge rejected these contentions. This is clear from a reading of paras 7 and 8 of his decision. In para 9, reference is made to the decision in the case of State of Himachal Pradesh and others vs. Surinder Singh Banolta (supra) and it has been held thereafter that this judgment does not help the petitioner. In the case before the learned single Judge the encroachment was after commencement of the term and that is how the elected Member can be held to be disabled from continuing as such in terms of section 16. If the proceedings under section 16 were held to be maintainable on account of disqualification being incurred during the term of the office, then, there is no question of any parallel proceedings. There is only one inquiry into the issue of encroachment.
30. For all the reasons this petition is devoid of merits and is dismissed.
31. At this stage, the learned counsel Shri Oak appearing for the petitioner prays for continuation of the order dated 15th June, 2012 and prior order dated 10th May, 2012. Those orders grant adinterim protection terms of prayer cause (b). This request is opposed. Bearing mind that the Court has dealt with the legal controversy and the petitioner seeks a chance to challenge this judgment further, interest of justice would be served if this ad interim order is continued for a period of six weeks. Accordingly the ad interim orders continued for a period of six weeks.