1 Rule. Respondents waive service. By consent of parties, heard finally.

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 Collector, Nashik District, Nashik dated 05.03.2012 on the Dispute Application No.2/2012 which order is confirmed by the Additional Divisional Commissioner, Nashik Division, Nashik by his order 28.03.2012 in Appeal No.44/2012.

3 The Respondent Nos.2 and 3 to this Writ Petition filed an application bearing Dispute Application No.2/2012 against the Petitioner invoking the jurisdiction and authority of the Additional Collector, Nashik under Section 16(1) and (2) of the Bombay Village Panchayats Act, 1958 (for short “the Act”).

4 The allegation contained in this application briefly is that by virtue of Section 16 of the Act, the elected member can be held to be disabled from continuing as such if at the time of his election or appointment he was subjected to any of the disqualifications mentioned in Section 14 of the Act or during the term for which he has been elected or appointed he has incurred any disqualification mentioned in Section 14. Once he is so disabled, there is vacancy in the office as it is held to be vacant after disability. Whether, any vacancy has occurred or not is the question which has been raised and which in terms of the statutory provision is required to be answered by the Collector. The allegation was that the Petitioner was disqualified in terms of Section 14(1)(j3) as he has encroached upon the Government land or public property.

5 The case of the Respondent Nos.3 and 4 in that application is that the Gram Panchayat, Vinchur, Taluka Niphad, District : Nashik is the Gram Panchayat for which elections were held in the year 2010. There are 17 members of this Gram Panchayat. The election results were declared on 27.06.2010. One of the persons who has been elected is the Petitioner. Thereafter, on 14.09.2011 the Petitioner came to be elected as Sarpanch. However, it was expected of the Petitioner to carry on affairs of the Gram Panchayat by taking everybody into confidence and carry out welfare works. To the disappointment of the Respondent Nos.3 and 4, it was discovered that there is property belonging to the Petitioner bearing Gat No.626/2. There is a layout which was presented to the Planning Authority and which has approved the same. The total area is 2700 sq.mtrs.. However, there is open space in this layout in which the Petitioner has unauthorizedly and illegally constructed tin-sheds. There is unauthorized Mutton Market which has been put up in these sheds and the Petitioner has gone to the extent of carving out Galas and Tenaments therein and such Galas have been let out by him and once such construction has been found in the open space on the Government land or public property, then, it attracts disqualification as per the aforementioned statutory provision.

6 Taking cognizance of such complaint, what appears to have been done thereafter is to seek a report from the Circle Officer, Lasalgaon after spot inspection. The Circle Officer after the spot inspection has reported that the encroachment is on private open space. However, the encroachment is in a open space which open space belongs to the Gram Panchayat, therefore, the encroachment is liable to be removed and that responsibility is of the Gram Panchayat.

7 There is also letter of the Tahasildar, Niphad dated 16.11.2010 to the Sarpanch of Gram Panchayat wherein it was intimated that in Gat No.626 there is an illegal and unauthorized encroachment and that is by the Petitioner. Therefore, Section 14(1)(j3) is applicable.

8 Then reliance was placed on the report of the Director of Town Planning in which it has been clarified that the open spaces in approved layout and within the Gram Panchayat limits are not permitted to be utilized or used by the owners or residents of the village. Therefore, the construction of Mutton Marke