A.P. Lavande, J.

Letters Patent Appeal No. 320/2008 and the reference made in Writ Petition Nos. 4910/2008 and 4911/2008 are being disposed of by the common Judgment since the question of law involved in the appeal as well as in the reference is identical.

2. We have heard Mr. C.A. Joshi, learned counsel for the petitioner and Mr. S.V.Sohoni, learned counsel for the respondent no.1 in Writ Petition Nos. 4910/2008 and 4911/2008 and Mrs. S. Wandile, learned counsel for respondent no.3 in Writ Petition No. 4911/2008 and Mr. A.S. Chandurkar, learned counsel for the appellant, Mrs. Wandile, learned A.G.P. for respondent nos. 1 and 2, Mr. P.C.Khajanchi, learned counsel for respondent no.3 and Mr. Dubey, learned counsel for respondent no.4 in Letters Patent Appeal No. 320/2008.

.3. In Writ Petition Nos. 4910/2008 and 4911/2008 the learned Single Judge held that the view taken by another learned Judge in Writ Petition No. 2203/08 (Javed Sheikh Mustaque Patel vs. State of Maharashtra and others) reported in 2008(5) ALL M.R. 334, that disqualification under Section 44(1)

.of The Act is attracted even if the illegal/unauthorized construction is done by the Councillor prior to his tenure as a Councillor, was not the correct view. On account of difference in opinion between the two learned Single Judges of this court, reference has been made to this court to decide the issue as to whether an unauthorised/illegal construction made by a councillor either by himself, his spouse or his dependent prior to his tenure as a councillor will attract disqualification under Section 44(1)(e) of the Maharashtra (Municipal Councils), (Nagar Panchayats And Industrial Townships) Act, 1965 (.The Act. for shot).

4. In Writ Petition No. 4910/2008, the petitioner has challenged the order dated 11.2008 passed by the State Government dismissing the appeal filed against the order dated 27.5.2008 passed by the Collector, Akola under Section 44(1)(e) of The Act. The Petitioner was declared elected as councillor of Ward No. 20 of Balapur Municipal Council in November, 2006. The respondent no.1 filed application seeking disqualification of the petitioner on the ground that he had raised illegal/unauthorised construction. The Collector of Akola called the report from the Town Planning Department. The Collector held that the construction was illegal and consequently by order dated 27.5.2008 disqualified the petitioner under Section 44(1)(e) of the Act placing reliance upon the Judgment of this Court in the case of Edwin Francis Britto vs. Municipal Corporation of Greater Mumbai and others (2006 (6) Bombay CR, 92) in which it is held that whether the construction was prior to the election or not was not significant and the disqualification under Section 16 (1D) of The Bombay (Mumbai) Municipal Corporation Act, 1988 was attracted. The appeal preferred to the State Government under Section 44(4) of the Act challenging the said order was dismissed by the State Government by order dated 11.2008. Aggrieved by both the orders, the petitioner filed the writ petition.

5. In Writ Petition No. 4911/2008, the petitioner was elected as Councillor of Ward No. 8 of Balapur Municipal Council in November 2006. The respondent no. 1 moved the application under Section 44 (1)(e) before the Collector alleging that the wife of the petitioner had done illegal construction on plot no. 590 and thereby had incurred disqualification. After calling report from the Town Planning Department, the Collector held that the construction was unauthorised and consequently by order dated 27.5.2008 disqualified the petitioner. The appeal preferred to the State Government was also dismissed by order dated 210.2008. Aggrieved by both the orders the petitioner filed Writ Petition No. 4911/08 challenging both the orders.

.6. Both the writ petitions were taken up for final disposal by the learned Single Judge. Before the learned Single Judge, on behalf of respondent no.1 reliance was placed upon the J