1. The petitioner has been elected as a member of Gram Panchayat Bhor, Taluka Khed, Dist. Pune in the election held in the year 2010 and to be precise on 30th July 2010. His tenure is for a period of 5 years. The respondent No.3 made an application seeking to disqualify the petitioner. That application made under section 16 of the Act sought to disqualify the petitioner on three grounds viz., section 14(1)(g), 14(1)(h) and 14(1)(j-3) of the Bombay Village Panchayat Act (for short Act).

2. It is not necessary to refer to the grounds under section 14(1)(g) and (h) of the said Act because what has survived for consideration through out is the ground of the petitioner allegedly having encroached on Government Land or public property, which is traceable to section 14(1)(j-3) of the Act.

3. The third respondent who made the complaint alleged that the petitioner has been elected from ward No.4. He is residing with his father Arun Chavan. Mr. Arun K. Chavan has encroached on the land which belongs to the village (Gavthan) by constructing a house of RCC walls which is without any prior sanction or authority from the Grampanchayat. That house is assessed at Sr. No.584. Similarly, there is another grampanchayat land which is in possession of the said Arun Chavan, who has utilised the same despite the agreement for usage has come to an end. Equally, he has encroached on another Government land which is assessed at Sr.No.584 by putting up a structure, known as Maharashtra Krishi Seva Kendra. Even this business and construction is without prior permission. It has, therefore, been alleged that the petitioner is disqualified for encroaching on Government land or public property.

4. The petitioner has filed a reply to this application contending that this property does not belong to him. His father Arun Chavan has constructed a house in 1994. That house has been constructed by him from his own income. The taxes in that behalf have also been paid by his father. There is no question of the petitioner encroaching on any of the portions or lands stated to be Government land or public property and making any construction thereon, much less the one alleged. In such circumstances, he cannot be disqualified.

5. When this application was placed before the Collector, he perused all the documents, including statements of the parties and the report of the Chief Executive Officer, Z.P. Pune dated 29th November 2010 and concluded that the petitioner is Ganesh Arun Chavan. However, the property is assessed in the name of Mr. Arun Chavan, father of the petitioner. It is Mr. Arun K. Chavan, father of the petitioner, who has constructed the structure and it is assessed in his name in the grampanchayat records. Equally, he has encroached upon open land belonging to Government and has set up a business there. A reference to the statement made on 8th September 2010 would evidence this fact, according to the Collector.

6. In such circumstances and when in the Act in question insofar as the subject disqualification is concerned, the petitioner was held to be disqualified as it has been proved that he has taken advantage of the encroachment on Government land or public property, by being in possession thereof. That is how the application was allowed.

7. Aggrieved by this order dated 20th June 2011 passed by the Collector, Pune disqualifying the petitioner, an appeal was filed before the Divisional Commissioner and the same was dismissed by the order impugned dated 10th April 2012. Hence, this petition.

8. With the assistance of the Counsel appearing for parties, I have perused the petition and all annexures thereto, including the impugned orders. Once there is a statement made on record, admitting that the petitioner has not made any construction but his father Arun K. Chavan has made the construction in question and that it is he who has been using the Government land, then, such finding off act should have been considered by the Commissioner while confirming the