1. Rule. Heard finally with the consent of the learned Counsel for the parties.

2. The petitioner who stands disqualified from continuing as member of the Gram Panchayat under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 (for short, the said Act) lays challenge to said adjudication.

3. The petitioner was elected as member of the Gram Panchayat in the elections that were held in October, 2012. It is her case that she was residing along with her father and other family members at house property bearing House No.134, situated at Dudhala which property stands in the name of her father. The respondent No.6 filed an application under provisions of Section 14(1)(j-3) of the said Act praying that the petitioner be disqualified on the ground that encroachment on public land had been made with regard to construction of property bearing House No.134. The petitioner filed a reply stating that the house in question was owned by her father and that she was residing as a member of the family therein. It was stated that as the petitioner was not responsible for said encroachment, she was not liable to be disqualified.

4. The Additional Collector, Nagpur came to the conclusion that there was an encroachment committed in respect of property bearing House No.134 and though it was the case of the petitioner that the house property belonged to her father, in view of the judgment of the Division Bench in L.P.A. No.305/2012 – Devidas M. Surwade Vs. Additional Commissioner, Amravati and others dated 31.7.2012, the petitioner was liable to be disqualified under provisions of Section 14(1) (j-3) of the said Act.

Being aggrieved, the petitioner filed an appeal before the Additional Commissioner. By judgment dated 22.9.2014, the Additional Commissioner recorded a finding that though the encroachment in question was committed by the petitioner's father, as the petitioner was residing along with her father at House No.134, she was also liable to be disqualified. Hence, the appeal came to be dismissed and the order passed by the Additional Collector was maintained.

5. Shri B. S. Dhandale, learned Counsel appearing for the petitioner submitted that having regard to the finding recorded by both the Authorities that the house in question was standing in the name of the father of the petitioner, she could not have been disqualified under provisions of Section 14(1) (j-3) of the said Act. It was vehemently urged by the learned Counsel that only if the person elected as a member commits encroachment that such member is liable to be disqualified and if such encroachment is found to be committed by a member of the family, such member cannot be disqualified. In that regard, the learned Counsel placed heavy reliance on the decision in Writ Petition No.8497/2012 Yallubai Kamble Vs. State of Maharashtra decided on 5.10.2012 wherein it was held by learned Single Judge that the expression “person” would not include members of the family. He also relied upon judgments in Kanchan Shivaji Atigre vs. Mahadeo Baban Ranjagane & Ors., 2013 (1) Mh. L.J. 455 and Ganesh Arun Chavan vs. State of Maharashtra & Ors., 2013 (2) Mh. L.J. 955. He, therefore, submitted that it was a settled position that if the encroachment is committed by a person who is not elected as a member of the Gram Panchayat, the disqualification would not be attracted. He also relied on the decision in Sandhya Hemant Salunke vs. State of Maharashtra and others 2014 (5) Mh. L.J. 946 in that regard.

He then submitted that the judgment of learned Single Judge which was rendered after considering the decision of the Supreme Court in Gulam Yasin Khan Vs. Sahebrao Yeshwantrao Walaskar, 1966 Mh. L.J. 269 (SC) should be preferred to the judgment of the Division Bench in Devidas Surwade (supra) as said judgment of the Division Bench has construed the expression “person” in wide terms. Therefore, according to the learned Counsel, the judgment of the Division Bench in Devidas Surwade (supra) would