1. Petitioner, who is working as a Sarpanch of Gram Panchayat, Ner, Tq. Telhara, Distt. Akola, felt aggrieved by the order dated 7th April, 2011, passed by the Additional Collector, Akola, and confirmed by the Additional Commissioner, Amravati Division, Amravati, in Appeal No.198/BVP Act 16 (2)/2010-11 of Ner, Tq. Telhara, Distt. Akola, by order dated 7th June, 2011, filed the present Writ Petition.

FACTS :

2. For Gram Panchayat, Ner, the post of Sarpanch was reserved for Scheduled Castes [Woman] and as such the petitioner was elected on the said post on 10th August, 2010. Respondent No.1 applied under Section 14 (1) (h) of the Maharashtra Village Panchayats Act, 1958, against the petitioner and stated in the said application that the petitioner is residing in undivided Hindu family of her father-in-law Yashwant Tukaram Tayde along-with her husband Punjab Yashwant Tayde in House No.328, which stands in the name of her father-in-law Yashwant. The House Tax in respect of House No.328, so also water Tax are due against father-in-law of the petitioner, namely Yashwant, and accordingly Demands under Section 129 (1), a Writ of Demand under Section 129 (2) were duly served on Yashwant from time to time; but nothing was paid and, thus, Yashwant remained in arrears of taxes. Therefore, according to respondent no.1, petitioner being the wife of son of Yashwant residing in the joint family of Yashwant, she was disqualified under Section 14 (1) (h) [Explanation 2 for the purposes of clause (h) (i) and (ii)] from the membership of Gram Panchayat, Ner.

3. Petitioner filed her reply to the application before Additional Collector, Akola, and stated that she resides with her husband separately since 19th June, 1997 and has no concern with the house in which Yashwant resides, and not only that Govt., has issued Below-Poverty-Line [BPL] Card to her and her husband accordingly. Therefore, it was factually wrong to say that she was residing in House No.328. During the course of proceedings, the Additional Collector called a report from the Secretary of Gram Panchayat, Ner, dated 4th October, 2010, in which it was stated that petitioner resides at Govt. Site No.320, while Yashwant, her father-in-law, resides in House No.328. Yashwant was served with all the Bills of Taxes, which remained unpaid. The Additional Collector then took up the proceedings and disqualified the petitioner directly in accordance with the Explanation-2 to Section 14 (1) (h) by his order dated 7th April, 2011. The petitioner went in appeal before Additional Commissioner, who confirmed the order passed by the Additional Collector. Hence this Writ Petition.

4. In support of the Writ Petition, learned Adv. Mr. R.L. Khapre for the petitioner, vehemently argued that as a matter of fact, the finding is recorded by the authorities below that petitioner with her husband resides at the site and not in House No.328 of Yashwant, her father-in-law. However, merely because her husband Punjab has a share in House No.328, for want of partition, would be a member of Hindu United Family of Yashwant and consequently as per the provision in question, the petitioner was disqualified. Appellate Authority also recorded the same finding. According to Mr. Khapre, when the petitioner is living separately with her husband and not residing in House No.328 and having independent BPL Card, merely because her husband has a share in the house property, i.e, House No.328, she could not be disqualified, since she got elected as a member and Sarpanch of the Gram Panchayat by virtue of the constitutional mandate and the provisions of law in her own right as a woman, for whom the seat was reserved. Mr. Khapre then contended that a similar provision fell for consideration before the Punjab & Haryana High Court, which declared the same as ultra vires the Constitution of India. Mr. Khapre, therefore, urged this Court to follow the suit. To strengthen his arguments, Mr. Khapre cited the following decisio