The provisions of Section 14(1)(j-5) of the Maharashtra Village Panchayats Act, 1958 are mandatory, and non-compliance can lead to valid disqualification.

T.V. Nalawade, J.

The petition is filed under Articles 226 and 227 of the Constitution of India to challenge the order made by respondent No. 3, learned Additional Collector, Osmanabad and also by respondent No. 2, learned Additional Commissioner, Aurangabad in the matter of proceeding filed for disqualification of the present petitioner. The proceeding was started as the petitioner was not having toilet in her house and so the disqualification was sought under the ground given in Section 14(1)(j-5) of the Maharashtra Village Panchayats Act, 1958. Both sides are heard.

2. In the general elections to the village panchayat held in October 2012 the petitioner was elected as member of the Village Panchayat Hingangaon, Tahsil Kallam, District Osmanabad. On 23-11-2012 she was elected to the post of village Sarpanch. On 8-12-2014. Respondent No. 5 filed complaint to the Block Development officer and informed that present petitioner was not having toilet facility at her residential place and so she could not remain even as member of the village panchayat. On 11-12-2014 Extension Officer Shri Jadhav made inquiry on the basis of the order made by the Block Development Officer (BDO) by visiting the residential place of the petitioner. He prepared panchanama of her house in the presence of panch witnesses and he reported that there was no toilet facility in her house.

3. The petitioner is living with her husband Navnath Magar and in the panchanama dated 11-12-2014 it was recorded that the house of Navnath and his brothers like Gopichand and Purushottam are adjoining to each other. It was noticed that in the open space situated by the side of the houses some digging was done and construction material like bricks was kept. On 11-12-2014 Gram Sevak of the village was not available in the village and so he gave certificate regarding absence of toilet facility on 12-12-2014. He also signed on the aforesaid panchanama dated 11-12-2014 to the effect that he agrees with the contents of the panchanama.

4. On the basis of aforesaid record, the Chief Executive Officer of the Zilla Parishad, respondent No. 4, sent the matter to the District Collector for taking necessary action. On 19-8-2015 the Additional Collector Osmanabad issued notice and the petitioner was asked to appear before him with reply on 21-8-2015. Notice was duly served on the petitioner and she appeared before the Additional Collector but she requested for time to file reply. For giving her time the matter was adjourned by the Additional Collector to 25-8-2015. On that date the petitioner filed reply and on the same day after giving hearing, the learned Additional Collector passed order of disqualification against the petitioner. The learned Additional Commissioner has dismissed the appeal preferred against the decision of the learned Additional Collector after giving hearing to the petitioner.

5. On 19-1-2016 in the present matter notice was issued by this Court to the respondents but no stay was granted to the aforesaid order of disqualification. As the post had become vacant, election to the post of the member of village panchayat was declared and even voting has taken place. The result of the election is withheld due to the order made by this Court on 27-1- 2016.

6. The material available in the present matter is as follows :

(I) Before the Additional Collector the petitioner filed reply and she contended that her house was of joint Hindu family of her husband with elder brother Gopichand till 1-10-2014 and after that date, space having size of 50×26 feet was given to the husband of the petitioner and record of assessment was created in favour of her husband on 30-11-2014. She contended that till 1-10-2014 the family of the petitioner was using the toilet which was present in the house of Gopichand. She contended that on 26-1-2014 Gram Sevak had given certificate to her that her family was using the toilet and when new toilet was constructed, they started using new toilet. Thus t