High Court
Legal Reasoning
1 wp 2217-2023.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 2217 OF 2023Mangeshkumar s/o Shivraj HerkarAge : 49 years, Occu. Agri.,R/o. : Her, Tq. Udgir, Dist. Latur... PetitionerVersus1.The District Collector,Latur, Dist. Latur.2.The Block Development Officer,Panchayat Samiti, Udgir,Tq. Udgir, Dist. Latur.3.Gramsevak Grampanchayat Karyalaya Her,Tq. Udgir, Dist. Latur.4.Sarika w/o Avinash Suryawanshi,Age : 29 years, Occu. : Household andMember of Village Panchayat Her,R/o. : Her, Tq.Udgir, Dist. Latur... RespondentsMr. R. K. Ashtekar, Advocate for the Petitioner.Mr. K. S. Patil, AGP for Respondent No. 1.Mr. P. V. Gole, Advocate h/f Mr. V. D. Gunale, Advocate for Respondent No. 3.Mr. Mahesh Deshmukh, Advocate h/f Mr. U. L. Momale, Advocate for Respondent No. 4. CORAM : KISHORE C. SANT, J.Date on which reserved for order :28th January, 2025.Date on which order pronounced :31st January, 2025. 1 of 10 2 wp 2217-2023.odtORDER :- .The present petition is by a member of Grampanchayatchallenging the judgment and order passed by the learned AdditionalDivisional Commissioner, Aurangabad dated 06.02.2023 rejecting anappeal of the petitioner under the Maharashtra Village Panchayats Act(for short “the said Act”). By way of impugned judgment and order thelearned Additional Divisional Commissioner confirmed the orderpassed by the learned Collector, Latur rejecting the complaint filed bythe present petitioner seeking disqualification of respondent No. 4 tohold the post of Sarpanch. The respondent No. 1 is the Collector. Therespondent No. 2 is the Block Development Officer, Panchayat Samiti,Udgir and respondent No. 3 is Gramsevak of Grampanchayat Her,Taluka Udgir. 2.The facts in short are that, the petitioner and respondent No. 4came to be elected as a member of Grampanchayat ‘Her’ in generalelection held in the year 2021. The respondent No. 4 thereafter cameto be elected as Sarpanch from amongst the members ofGrampanchayat. It is the case of the petitioner that, father in law ofrespondent No. 4 has committed an encroachment on a Gayran landSurvey No. 2 belonging to the Government. The respondent No. 4 is amember of joint family and therefore, has incurred disqualification for 2 of 10 3 wp 2217-2023.odtbeing Sarpanch or member of the Grampanchayat.3.The respondent No. 4 appeared. It is her case that, she is notresiding with her father in law. There is already a partition that hastaken place in the year 2019. Even their ration card is separate andprayed for rejection of the complaint.4.The learned Collector by his order dated 28.10.2021 held that,the encroachment by the father in law of respondent No. 4 is proved.The father in law of respondent No. 4 has encroached upon Gayranland Survey No. 2. The learned Collector has held that, the respondentNo. 4 has incurred disqualification. The said judgment was challengedby the respondent No. 4 by filing an appeal before the learnedAdditional Divisional Commissioner, Aurangabad. The learnedAdditional Commissioner concluded that, it was necessary to considerthe record and report of the Block Development Officer, tax assessmentreceipts etc. He remanded the matter back to the learned Collector forfresh decision. 5.In the second round, the learned Collector concluded that, thefather in law of the respondent No. 4 has committed an encroachment.However, he accepted the case of the respondent No. 4 that, on08.07.2019 a partition has taken place in the family and thereafter, the 3 of 10 4 wp 2217-2023.odtrespondent No. 4 started residing separately. She has also applied forseparate ration card. The said application is received by the Tahsildaroffice on 02.01.2021 and thus, the learned Collector held that therespondent No. 4 is not a member of joint family and rejected theapplication/complaint.6.The petitioner being aggrieved by the order passed by thelearned Collector approached the learned Additional Commissioner.The learned Additional Commissioner endorsed the view taken by thelearned Collector and rejected the appeal. The original complainant –petitioner is thus before this Court.7.The learned advocate Mr. Ashtekar for the petitioner vehementlyargued the case. He pointed out that, from the nomination form it isseen that the respondent No. 4 had shown the house property of fatherin law in column showing as to whether there is a toilet in the house.She has not shown any property in her own name. He thus submitsthat, it is clear that, the respondent No. 4 is staying in the family offather in law. Along with nomination form, she has annexed no duecertificate. He further points out that, this alleged partition deed issigned before the notary and is not valid. So far as separate rationcard, he submits that the nomination form was filled in on 28.12.2020.The election took place thereafter. For the first time, she filed an 4 of 10 5 wp 2217-2023.odtapplication for deletion of her name from the ration card of father inlaw after the election. It is thus clearly after thought and just to give aneye wash. He thus submits that, both the authorities have wronglycome to a conclusion that the respondent No. 4 is not a member of thejoint family. The learned advocate relied upon the judgment of theHon’ble Apex Court in the case of Janabai Vs. Additional Commissionerand others in Civil Appeal No. 6832/2018.8.The learned advocate Mr. Deshmukh for respondent No. 4strenuously opposes the petition. He submits that, the fact ofencroachment by the father in law of the respondent No. 4 is notseriously disputed. Both the authorities have rightly considered thatthe respondent No. 4 is residing separately and is not part of family offather in law. The ration card is separate. The partition deed has takenplace long back in the year 2019 which clearly shows that she wasresiding separate with her husband. He submits that the judgment inthe case of Janabai (supra) has no application to the facts of thepresent case.9.Having heard the parties, this Court has seen both thejudgments. Both the authorities have clearly held that, there is anencroachment on property Survey No. 2 by the father in law of 5 of 10 6 wp 2217-2023.odtrespondent No. 4. The only observation recorded is that, therespondent No. 4 is residing separately. On going through theannexures to the nomination form it is clearly seen that, in declarationof having toilet to the house, the respondent No. 4 has givendescription of the property as House No. 2, Survey No. 2 which showsthat the said house is of father in law. In the nomination form she hasnot given any other property showing her own property.10.The Hon’ble Apex Court in the case of Janabai (supra) has clearlyheld in paragraph Nos. 27, 28 and 29 which reads as below :“27.On a schematic appreciation of the Act includingSections 10, 11 and 53, it is quite vivid that the Memberselected in Panchayat are duty bound to see to it that theobstruction or encroachment upon any land, which is not aprivate property but Government land or a public property,should be removed and prosecution should be levied againstthe person creating such obstruction or encroachment.28.Section 184 of the Act provides that every Member ofthe Panchayat and every officer and servant maintained by orbeing employed under the Panchayat shall be deemed to be apublic servant for the purpose of Section 21 of the Indian PenalCode. Analysing the various provisions, the learned SingleJudge in Sandip Ganpatrao Bhadade (supra) has opined :- “11. It is in the background of the aforesaid provisions of law,that the provisions of qualifications and disqualifications to 6 of 10 7 wp 2217-2023.odtvote, contest the election and being continued as a member ofPanchayat, are required to be considered. Section 13 of the saidAct deals with the persons qualified to vote and be elected. Thepersons incurring any disqualification under the provisions ofthe said Act are neither qualified to vote nor to be elected as amember of a Panchayat. Section 14 deals with different kindsof disqualifications, as stipulated in clauses (a) to (k) undersub-section (1), which operate against two kinds of persons –(i) who proposes to become a member of a Panchayat, and (ii)who has become a member of a Panchayat. If a person hasincurred any one or more disqualifications, then he isprohibited from becoming a member of a Panchayat, and ifbecomes a member of a Panchayat, then his is not entitled tocontinue as such. The disqualification under Section 14 is inrespect of the acts, events, deeds, misdeeds, transactions, etc,which have not been done, happened or occurred beforeentering into the office as a member of a Panchayat as well asthose which take place during continuance as a member of aPanchayat.” And again :- “13. The very object of introducing the provision ofdisqualification under Section 14 (1) (j-3) of the said Act is toavoid the conflict of interest by prohibiting the persons, whoare the encroachers upon the Government land or publicproperty to get elected or continued as a member of thePanchayat, which is democratically elected body of thevillagers. It is beyond comprehension to assume that a personunder statutory obligation or a duty to protect the Governmentland or public property from encroachment, commits an act ofsuch encroachment. To permit person, who proposes to become 7 of 10 8 wp 2217-2023.odta member or becomes a member of the Panchayat to be theencroacher upon the Government land to public property,would be anathematic, acting in breach of statutory duty,exposing himself to prosecution under sub-sections (1) and (4)of Section 53, resulting ultimately in losing the protectionunder Section 180 read with Section 184 of the said Act. It is inthis context that the text of disqualification under Section14(1)(j-3) of the said Act is required to be analyzed andinterpreted. In the case of Devidas Surwade (supra), it has beenclearly stated, as noticed earlier, that the term ‘person’ has toinclude the legal heirs, if any, of the encroacher who continueto occupy the government land. Emphasis has been laid onencroachment and continued encroachment. After the saidDivision Bench judgment, number of learned Single Judgeshave adopted a different approach without noticing thejudgment which is against judicial discipline. 29.We may note here with profit that the word ‘person’ asused in Section 14 (1) (j-3) is not to be so narrowly construedas a consequence of which the basic issue of “encroachment” inthe context of disqualification becomes absolutely redundant.The legislative intendment, as we perceive, is thatencroachment or unauthorized occupation has to viewed verystrictly and Section 53, therefore, provides for imposition ofdaily fine. It is also to be borne in mind that it is the Panchayatthat has been conferred with the power to remove theencroachment. It is the statutory obligation on the part of thePanchayat to protect the interest of the properties belonging toit. If a member remains in occupation of an encroachedproperty, he/she has a conflict of interest. If an interpretation is 8 of 10
Decision
9 wp 2217-2023.odtplaced that it is the first encroacher or the encroachment madeby the person alone who would suffer a disqualification, itwould lead to an absurdity. The concept of purposiveinterpretation would impel us to hold that when a personshares an encroached property by residing there and there iscontinuance, he/she has to be treated as disqualified. Such aninterpretation subserves the real warrant of the provision. Thusanalysed, we are of the view that the decision in SagarPandurang Dhundare (supra) does not lay down the correctposition of law and it is, accordingly, overruled.”11.This Court finds substance in the submissions of the petitioner.Both the authorities have failed to appreciate the provisions of Section14 (1) (j-3) of the said Act. The respondent No. 4 ought to have beenheld incurred disqualification to become a member of theGrampanchayat. 12.In view of the same, the writ petition is allowed in terms ofprayer clause (B). The impugned judgment and order is set aside. 13.The writ petition stands disposed of. No order as to costs. ( KISHORE C. SANT, J. ) .At this stage, the learned advocate for respondent No. 4 submitsthat, since the respondent No. 4 is still holding the post of Sarpanch, 9 of 10 10 wp 2217-2023.odtthe effect of the order is stayed for a period of four (04) weeks fromtoday.2. Record and proceedings be sent back. ( KISHORE C. SANT, J. ) P.S.B. 10 of 10