ASHABAI LAXMAN GAWANDE Vs. ADDITIONAL COMMISSIONER AMRAVATI DIVISION

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of constitution of India the petitioner, a Sarpanch of Gram Panchayat, Dapura questions the order dated 5th January 2004 passed by Additional Commissioner Amravati Division Amravati holding that she has incurred disqualification under section 14 (1) (g) read with section 16 (2) of Bombay Village panchayat Act, 1958 (hereinafter referred to as "the Act" ). The Additional commissioner has set aside the order dated 29th October, 2003 passed by additional Collector Akola in favour of petitioner. Proceedings before the Collector were initiated by present respondent No. 2 Vasantrao. It is the contention of petitioner that respondent No. 2 had initially tried to unseat her through his wife who contested the election unsuccessfully against her.

(2.) RESPONDENT No. 2 filed application in July 2003 under section 14 (l) (g)of the Act before Additional Collector Akola pointing out that the petitioner has obtained advantage of a scheme for construction of houses for poor people and got construction of house under said scheme sanctioned in favour of her husband Laxman. He further asserted that Secretary of Gram Panchayat gave the opinion that as petitioner was having a house in the village, she was not eligible to take advantage of the scheme. It is the case of respondent No. 2 that 15% of the amount required for construction is given by the Gram panchayat. The application was opposed by present petitioner who was non-applicant No. 1 before the Additional Collector. She pointed out that the name of her husband was appearing in the list of below poverty line candidates since long and under the scheme he was eligible for constructed house. She had stated that her husband is not having any house for residence in the village and as per the scheme known as the "gharkool Yojana" or "indira awas Yojana" of Central Government and State Government, he has deposited 15% of the amount with authority and remaining 85% is granted by the said authority. With this amount her husband Laxman has constructed house on his own field and he has not taken any benefit from Gram Panchayat. It is her contention that Gram Panchayat only proposed name of Laxman as beneficiary but Gram Panchayat is not implementing the said scheme. She has also pointed out that respondent No. 2 filed criminal complaint against her and against other members of Gram Panchayat and proceedings under section 14 (1) (g) have been filed only to harass her. It appears that the Additional collector has taken a view in favour of petitioner. However, copy of said order is not annexed with the petition. What is annexed is order of said authority passed on same date in another matter filed by present respondent No. 2 against Up-Sarpanch Shri Devidas Dongre. Respondent No. 2 thereafter filed appeal under section 16 (2) before Additional Commissioner Amravati Division Amravati, who has allowed the same. Challenge in present petition is to this order of the Additional Commissioner. Respondent No. 2 has filed his reply before this Court in support of order of Additional Commissioner and has further proceeded to place on record documents to show that husband of petitioner already has a house in village and he also holds agricultural lands and is not eligible for benefit of the scheme. However, the petitioner has filed counter affidavit denying these facts. The Additional Commissioner i. e. respondent No. 1 has also filed reply denying the contentions in writ petition.

(3.) ADVOCATE Mardikar appearing for the petitioner contends that the order passed by Additional Commissioner in appeal considers totally different case which is not pleaded by respondent No. 2 and hence said order is unsustainable. He further asserts that the name of husband of petitioner was already included in list of below poverty line persons since 1997-98 when petitioner was not even concerned with Gram Panchayat. He points out that the subsequent election of petitioner as a Sarpanch has got no bearing on this list and on entitlement of her husband to assistance and benefit of housing scheme. He contends that the original case pleaded was that Laxman was not eligible for getting house under the scheme and the Additional Commissioner has in appeal examined the issue of validity of Gramsabha. He contends that disqualification is a serious issue and pleadings must be construed strictly and additional Commissioner should have looked into the mala fides of respondent No. 2 in the matter and should have found that no disqualification under section 14 (l) (g) was incurred by petitioner and no such case is even remotely pleaded by respondent No. 2.