High Court

Legal Reasoning

wp-9571-2025.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 9571 OF 2025Ranjana W/o. Bharat Kanade, Age - 35 years, Occu. Agril. (Sarpanch), R/o. Kalegaon (Haveli), Post. Nalwandi, Tq. & Dist. Beed...PetitionerVersus1)The State of Maharashtra, Through Principal Secretary, Rural Development Department, Mantralaya, Madam Kama Road, Mumbai.2)The Additional Commissioner, Chhatrapati Sambhajinagar, Tq. & Dist. Chhatrapati Sambhajinagar.3)The District Collector, Beed, Tq. & Dist. Beed.4)The Gramsevak, Village Panchayat, Kalegaon (Haveli), Post. Nalwandi, Tq. & Dist. Beed.5)Chaurangnath S/o. Manikrao Pawar, Age: 55 years, Occu. Agril. (Upsarpanch), R/o. Kalegaon (Haveli), Post. Nalwandi, Tq. & Dist. Beed..Respondents...Advocate for Petitioner : Mr. A.N. NagargojeAdvocate for Respondent No.5 : Mr. S.G. KawadeAGP for Respondent/State : Mr. S.P. Joshi... CORAM : S. G. CHAPALGAONKAR, J. DATED : AUGUST 06, 2025JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally withconsent of parties.2.The petitioner impugns order dated 15.07.2025 passedby the Additional Commissioner, Chhatrapati Sambhajinagar thereby wp-9571-2025.odt(2)confirming order dated 20.02.2025 passed by the District Collector,Beed thereby declaring petitioner as disqualified to hold post ofSarpanch of Village Kalegaon (Haveli), Taluka and District Beed. 3.According to petitioner, the general elections of VillagePanchayat were held in December 2022 in which petitioner is directlyelected as Sarpanch from people in terms of Section 30A-1A ofMaharashtra Village Panchayat Act, 1959. Respondent no.5 wasUpsarpanch of Gram Panchayat. He raised the dispute bearing FileNo.2024/ G.B./ DESK-2/ Appeal-15/ PPR/ KV/ 323 before DistrictCollector, Beed seeking disqualification of petitioner under Section 14(1)(g) and 14 (1)(J-3) r/w 16 of Maharashtra Village Panchayat Act,1959 (‘the Act’ for short). It is contention of respondent no.5 thathusband of petitioner is an employee of Village Panchayat. As such,petitioner incurs disqualification under Section 14 (1)(g) of the Act.Similarly, respondent no.3 contends that husband of petitioner hasconstructed house by making encroachment on government land. 4.The petitioner appeared in dispute and opposedcontentions of respondent no.5. The learned District Collectorallowed the dispute and declared petitioner disqualified for both theaforesaid reasons. Aggrieved petitioner filed appeal before theDivisional Commissioner at Aurangabad under Section 16 of the Act.However, the learned Commissioner also confirmed the order of wp-9571-2025.odt(3)District Collector and maintained disqualification against thepetitioner.5.Mr. A.N. Nagargoje, learned advocate appearing forpetitioner assails disqualification order on two grounds. Firstly, hecontends that there is no acceptable evidence to prove encroachmentalleged to have made by petitioner’s husband. Secondly, the allegedconstruction is made prior to election of petitioner as direct Sarpanch.The respondent was well aware about aforesaid fact. He never raisedobjection at the time of nomination of petitioner for election ofSarpanch nor had he filed election petition under Section 15 of theAct. According to Mr. Nagargoje, if petitioner had incurreddisqualification on account of encroachment on government landsince before getting elected as Sarpanch and remedy of electionpetition was not availed, she cannot be disqualified subsequently indisqualification proceeding under Section 16 r/w 14 (1)(j-3) of theAct. In support of his submissions, he relies upon exposition of lawlaid down by Hon’ble Supreme Court in case of State of H.P. and OrsVs. Surinder Singh Banolta reported in AIR 2007 SC 903 and ManishaRavindra Panpatil Vs. The State of Maharashtra and Ors in CivilAppeal No.10913 of 2024 decided on 27.09.2024.6.Learned advocates appearing for respondents supportsthe impugned order contending that petitioner herself has admittedencroachment and on her motion Gram Panchayat passed a resolution wp-9571-2025.odt(4)for removal of such encroachment. Therefore, in view of the law laiddown by the Hon’ble Supreme Court in case of Janabai Vs. AdditionalCommissioner reported in 2015 (5) Mh.L.J. 921, the petitioner isrightly disqualified. 7.Having considered submissions advanced, it can beobserved that petitioner is a directly elected Sarpanch of VillagePanchayat. In view of definition in Clause (11AAA) of Section 3 ofMaharashtra Village Panchayat Act, the term "member" means as aperson duly elected to the panchayat under Section 11, and it alsoincludes a directly elected Sarpanch under Section 30A-1A. Therefore,the disqualification prescribed under Section 14 can be applied evenin case of directly elected Sarpanch. 8.The dispute raised against the petitioner depicts that twoindependent disqualifications were attributed against her. First isunder Section 14 (1)(g) and second is under Section 14 (1)(j-3). Theorder passed by District Collector records that land Gat No.529 is agovernment gairan land of Village Kalegaon (Haveli). House No.436is constructed in that land by causing encroachment. The house isowned by husband of petitioner. Similarly in meeting dated08.03.2024, the Village Panchayat passed a resolution in which thesubject of removal of such encroachment was taken on agenda atSerial No.7 and it is resolved to remove encroachment of HouseNo.436 made in Gat No.529. The aforesaid factual aspect is not wp-9571-2025.odt(5)disputed before this Court. Similarly, respondent no.5 has filedaffidavit in reply pointing out that House No.436 constructed ongovernment land stands in the name of petitioner’s husband. Thearea of construction is 1320 sq.ft. The petitioner could not bring thecounter evidence to demolish the contents of aforesaid documentaryevidence. 9.In light of aforesaid aspects of matter, the petitioner hasbeen declared disqualified in terms of Section 14 (1)(j-3) of the Act.The aforesaid provision has been interpreted by Hon’ble SupremeCourt in case of Janabai (supra). In para 29 of said judgment, theHon’ble Supreme Court observed as under :“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"in the context of disqualification becomes absolutelyredundant. The legislative intendment, as we perceive, is thatencroachment or unauthorized occupation has to be viewedvery strictly and section 53, therefore, provides for impositionof daily fine. It is also to be borne in mind that it is thePanchayat that has been conferred with the power to removethe encroachment. It is the statutory obligation on the part ofthe Panchayat to protect the interest of the propertiesbelonging to it. If a member remains in occupation of anencroached property, he/she has a conflict of interest. If aninterpretation is placed that it is the first encroacher or theencroachment made by the person alone who would suffer adisqualification, it would lead to an absurdity. The concept ofpurposive interpretation would impel us to hold that when a wp-9571-2025.odt(6)person shares an encroached property by residing there andthere is continuance, he/she has to be treated as disqualified.Such an interpretation subserves the real warrant of theprovision. Thus analysed, we are of the view that the decisionin Sagar Pandurang Dhundare (supra) does not lay down thecorrect position of law and it is, accordingly, overruled.”10.The aforesaid exposition of law clearly shows that eventhe encroachment made by family member of the electedrepresentative, he will suffer disqualification. The concept ofpurposive interpretation is applied to hold that when a person sharesan encroached property by residing there and there is continuance,he/she shall be treated as disqualified. 11.In case of State of H.P. and Ors (supra), theencroachment/construction was made by petitioner’s husband sincebefore her election and confirmed by competent authority, therefore,remedy was to raise the issue of disqualification at the time ofnomination of election or by filing election petition in terms ofSection 15 of the Act was available. However, the aforesaidcontention cannot be accepted in facts of present case. In the saidcase, relying upon provisions of Himachal Pradesh Panchayati Raj Act,1994 particularly Section 122 which prescribes disqualificationagainst members of Panchayat, the Ho’nble Supreme Court observedthat when a person is already declared as encroacher prior to the dateon which he has been declared as elector, the question as to whether wp-9571-2025.odt(7)he stood disqualified in terms of the provisions of Section 122 of theAct must be raised by way of election petition alone. 12.The issue whether petitioner’s husband is an encroacheron government land is first time dealt upon in present dispute and thelearned District Collector on inquiry into the matter declared thedisqualification holding that the petitioner’s husband is an encroacheron government land. The issue of encroachment by petitioner’shusband was never cropped up in earlier proceeding or there is noformal declaration that could have been used to raise the objection topetitioner’s nomination or file election petition in terms of Section 15of the Act. Even otherwise, if there is continuance of encroachment,the disqualification will apply as long as the member of VillagePanchayat holds the post and there can be recurring cause of action toraise the dispute as to disqualification before the CompetentAuthority. 13.In that view of matter, this Court finds that the law laiddown in case of State of H.P. (supra) cannot be applied in facts of thiscase. 14.Apart from disqualification under Section 14 (1)(j-3),petitioner is held disqualified under Clause (g) of Section 14 (1).However, no arguments are advanced in this regard. Therefore, thisCourt do not find any reason to discuss the aforesaid issue. 15.In result, writ petition sans merit, hence dismissed. wp-9571-2025.odt(8)16.Rule is discharged.(S.G. CHAPALGAONKAR, J.)Mujaheed//