Santosh Maruti Walanj vs Manoj Sadashiv Jadhav
2012 Latest Caselaw 332 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                                                      
                      WRIT PETITION NO. 4490  OF 2012




                                                              
    Santosh Maruti Walanj               ...    Petitioner

                  Versus




                                                             
    Manoj Sadashiv Jadhav               ...    Respondent

    Shri S. M. Oak i/by Shri Mandar Limaye for the Petitioner
    Shri Ritesh Ratnam for the respondent no.1




                                                
    Shri R. M. Patne for the Respondent Nos. 3 to 5
                              
                   CORAM:  S. C. DHARMADHIKARI, J.

DATED : 5th November, 2012

ORAL JUDGMENT :

1. Rule. Learned Counsel for the respondents waive service. By

consent, Rule is made returnable forthwith. Heard both sides.

2. By this Writ Petition under Articles 226 and 227 of the

Constitution of India, the petitioner is challenging the order passed

by the Additional Commissioner, Konkan Division, in Gram

Panchayat Appeal No.441 of 2011 dated 31st h December 2011. That

appeal challenges the order dated 25th July, 2011 of the Collector,

Thane in Gram Panchayat Appeal No.14/10/11.

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3. The petitioner is a member of the Gram Panchayat Shelar

Taluka Bhivandi, District Thane. The elections of the said Gram

Panchayat were held on 24th October, 2010. The petitioner was

elected from Ward No. 6-f which was reserved for Scheduled

Caste. It is the case of the petitioner that he attended first General

Body Meeting of the Gram Panchayat held on 14 th November, 2010.

His first term of office commenced with effect from this date in

terms of Section 28(1) of the Bombay Village Panchayats Act, 1958

(for short "the Act").

4. An application dated 15th October, 2011 was filed before the

Collector Thane, complaining that the petitioner had encroached

upon the Government land bearing CTS No. 1448/1 at Mouje Shelar

Taluka Bhivandi Dist. Thane. He had made a construction ad-

measuring 609 square feet. The property was assessed as House

No. 320. It was also urged that the Petitioner stood disqualified in

terms of Section 14(1) (j-3) of the said Act.

5. The petitioner filed a reply to this application and urged that to

support the above allegations, reliance is placed on the report of the

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Tahsildar, Bhivandi dated 19th January, 2011. This report shows that

the construction of a cattle shed has been made in 1996. The Gram

Panchayat has assessed the same w.e.f. 2000. The petitioner

contended that there is no allegation that after he was elected and

was continuing as member of the subject Gram Panchayat that any

such encroachment was made. The construction has been made in

the year 1996 and assessed from the year 2000. In such

circumstances, there is no question of the petitioner incurring any

disqualification and therefore his seat cannot be declared as vacant.

There are other issues which have been raised and what has been

stated is that the construction which has taken place much prior to

the elections cannot be brought within the purview of the dispute

which has been raised in the year 2011. In any event, that could have

been made subject matter of a election petition under section 15 and

which has not been filed. In these circumstances, relying upon some

judgments of this Court, it was contended that the complaint be

dismissed. This reply was filed by the petitioner on 19th April, 2011.

6. The collector after hearing both the sides, has held that the

property bearing No. 320 is assessed in the name of the petitioner.

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There has been an assessment which has been levied on this

property which is styled as 'a construction of RCC'. This is a

construction which is unauthorized and illegal because no

permission was obtained. The land is shown as reserved for cattle

grazing and the construction that has been made is for residential

and commercial purpose. In these circumstances, the petitioner is

disqualified and his seat was declared vacant by the order dated 25th

July, 2011.

7. This order was challenged before the Commissioner, Konkan

Division who has concurred with the Collector in holding that the

construction that has been made is made on public property. The

land reserved for cattle grazing is for the purpose of the entire

village. On such land, construction has been made and which

construction is without any permission or authority from the Village

Panchayat. In such circumstances, the petitioner stands disqualified.

More so because the construction has not been regularized till

date.

8. These orders are under challenge in this Writ Petition.

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9. Mr. S. M. Oak, learned counsel appearing on behalf of the

petitioner submitted that reliance has been placed by both authorities

on the report of the Tahsildar. That report of the Tahsildar if carefully

perused, does not indicate that the construction that has been made

is of such nature which is impermissible. It denotes that the

construction which has been made may be of cement and bricks

and admeasuring 20 x30 feet but it has been used as cattle shed.

Such construction which has been made allegedly by encroaching

on the Government land has been existing since1996 and equally

assessed to house property tax from the year 2000. Mr. Oak

therefore submits that both the orders are contrary to law, inasmuch

as there is no construction or encroachment made on the

Government land.

10. Mr. Oak has relied upon the additional affidavit of the

petitioner, in which affidavit a statement is made by him that old

Survey No. 140 corresponds to New Survey No.1484/1. By

notification dated 13 September 1984 certain lands in village Shelar

were included as Gavthan land and area admeasuring 1 H 63 R

was Gavthan area. Even 7/12 extracts of Survey No. 1484/1 records

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that area admeasuring 1 hector had some construction whereas

area admeasuring 2 R. is pertaining to a school. In these

circumstances, this land is not a Government land and therefore the

provisions themselves are not attracted. Reliance is placed on this

affidavit dated 15th June, 2012 Exh. 'A' to this affidavit and equally 'B'.

11. Reliance is also placed on the judgment of Hon'ble Mr. Justice

B. P. Dharmadhikari rendered in the case Shrikrishna Wasudeo

Dhage vs. Shivcharan Trimbakrao Kalne, 2010 (3) Mah. L.J 281.

Reliance is also placed on the judgment of the Hon'ble Supreme

Court in the case of State of HP & others vs. Surendra Singh

Banolta , (2006) 12 Supreme Court Cases 484.

12. On the other hand Advocate appearing for the contesting

respondents submits that all such contentions as are raised today

and on prior occasion are an afterthought. They were not raised

before the authorities. Inasmuch as, if the land is not a Government

land at all, then, the petitioner was free to bring to the notice of the

Additional Commissioner and equally the Collector, the material now

brought before this Court. Secondly, the argument that the

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proceedings themselves are not maintainable in the light of Article

243-N and 243-O of the Constitution of India was never raised. The

construction is on a land which is meant for grazing of cattle and

thus a land which is meant for villagers and used by them. It is not

a land which is private in character. It is thus a Government land or

in any event public property. In such circumstances, the orders

under challenge do not merit any interference in writ jurisdiction and

the writ petition be dismissed.

13. With the assistance of the learned counsel appearing for the

parties, I have perused the writ petition, all annexures thereto

including the impugned order. I have also perused the relevant

statutory provisions and equally the constitutional provisions.

14. Mr. Oak has very vehemently contended that section 16 (1) of

the Bombay Village Panchayats Act to the extent it inserts clause (a)

therein or retains it and continues it after the constitutional

amendment is effaced because of Article 243-N, by which existing

laws and Panchayats are continued, but when it makes it abundantly

clear that any provision which is inconsistent with the constitutional

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provision cannot be retained in law relating to Panchayat in a

Provincial State immediately before the commencement of

Constitution (73rd Amendment of 1992) and that law will have to be

amended. If it is not amended or repealed by the competent

legislature or other Competent Authority, then, such law which is

inconsistent will continue only for period of one year from such

commencement or until amended as above, whichever is earlier. He

submits that Section 16(1) ( a) of the Act is inconsistent with Article

243-O of the Constitution of India, therefore, null and void and be

declared as such.

15. It is not possible to accept this contention. Section 16 of the

Bombay Village Panchayats Act reads as under:

16. " (1) if any member of a panchayat,-

(a) who is elected or appointed as such, was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment, or

(b) during the term for which he has been elected or

appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) if any question whether a vacancy has occurred under

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this section is raised by the Collector suo motu or on an application made to him by any in that behalf, the Collector

shall decide the question as far as possible within sixty

days from the date of receipt of such application. Until the collector decides the question, the member shall not be disabled under sub-section 1) from continuing to be a

member. Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government and the

orders passed by the State Government in such appeal

shall be final.

16. Upon perusal of Section 16 together with provisions prior to

the same would make it apparent that the disqualifications for

being elected as member of the Grampanchayat have been enlisted

in Section 14. Section 14-A then makes disqualification arising out

of certain convictions and corrupt practices as disqualification for

being elected as member of the village panchayats. Section 14 B

deals with disqualification by State Election Commission. Section 15

provides for a forum for determination of validity of elections and

enquiry therein, the procedure therefor and then comes Section 16.

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17. A learned Single Judge of this Court in the case of Suvarna

Prakash Patil Vs. Anil Hindurao Powar (2004 (1) Mh.L.J. 1062)

had an occasion to consider the ambit and scope of section 16 of

the Act. The learned Judge made certain observations after

interpreting the statutory scheme and with which I have concurred in

a later judgment which has been delivered by me in the case of

Dnyaneshwar M.Satav Vs. Jalindhar Dhondiba Kharabi in Writ

Petition No.88 of 2012 decided on 18/09/ 2012. The ambit and scope

of the provisions in question, the nature of the proceedings are

therefore peculiar. There is power to question the validity of

election and determination of dispute in relation thereto and that is a

forum which has been made available by Section 15. There is a

provision by which disability to continue as a member upon election

is taken care of and that is an aspect dealt with by Section 16.

Section 16 is therefore on the statue book because it is not

pertaining to validity of election as understood in Section 15. It is a

provision which enables the question of vacancy caused by disability

to continue as a member to be decided. The disability to continue

might arise on the basis of disqualification incurred subsequent to

election or person who might be disqualified for being elected has

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been elected but his continuance is put in issue. Therefore, the

words 'disqualification' and 'disability' both have been used by the

State Legislature and with some specific object and purpose. The

disqualification disables a person to continue. Disability also arises

if a legal right is impaired or sought to be curtailed and that in this

case is to continue as a member of the Grampanchayat. I do not

see how any conflict arises because the State legislature deems it fit

not to either repeal or do away with section 16(1) ( a). Section 16

therefore covering a broad field and enabling a very wide question

to be agitated and raised, that does not mean that by virtue of Article

243-N, the same is inconsistent and therefore stands repealed

automatically. I do not find any inconsistency. Even in the

constitution of India itself one may note several Articles by which

upon election as a member of the Loksabha/Parliament or Council

of States, a question of person's disqualification can be raised and

the President of India has been empowered and equally the

Governor of the State to take note of such issues and have them

decided (See Article 102 and Article 191 of the Constitution of India).

Therefore, there being no inconsistency, I do not find that Section

16(1)(a) stands repealed being inconsistent with Article 243-N of

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the Constitution of India. There cannot be any inconsistency with

Article 243-O because this is not a case of only a person's election

being questioned but what is being questioned is his disability to

continue on the footing he was disqualified for being elected. Mr

Oak's submissions overlook the constitutional provisions and

Articles. Article 243-F of the Constitution of India reads as under:

Article 243F. (1) A person shall be disqualified for being

chosen as, and for being member of a Panchayat-

(a) if he is so disqualified by or under any law for the time

being in force for the purposes of elections to the Legislature of the State concerned:

Provided that no person shall be disqualified on the ground

that he is less than twenty-five years of age, if he has

attained the age of twenty-one years;

(b) if he is so disqualified by or under any law made by the

legislature of the State.

(2) If any question arises as to whether a member of a

Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."

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    18.    Section 16 of the Act is on par     with this Article and in fact 




                                                                                         

gives effect to the Constitutional Scheme enshrined in Part IX of the

Constitution. Mr. Oak's argument also overlooks the distinction made

in Section 15 and Section 16. An issue of validity of elections in

terms of the earlier provision can be raised by any candidate at such

election or by an person Qualified to vote at the election to which

such Question refers whereas the Question of vacancy caused by

the disability of a member to continue can be raised by the Collector

suo moto or on an application made to him by any person. Therefore

and when the Question can arise in case of elected or appointed

members, then, I see no inconsistency between Section 16 (1) (a)

and Article 243-O of the Constitution of India.

19. In this context, a reference can usefully be made to a decision

of the Hon'ble Supreme court reported in the case of Vijay Vs. State

of Maharashtra and others, (2006) 6 SCC 289, wherein the

Hon'ble Supreme Court has held as under:

"7. The said Act is a disqualifying statute. A plain reading of the amended provision clearly shows that it was intended by legislature to have retrospective effect.

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8. The general rule that a statute shall be construed to be prospective has two exceptions: it should be

expressly so stated in the enactment or inference in relation thereto becomes evident by necessary implication.

9. In the instant case it is stated expressly that the amendment would apply also to a case where the

elected candidate had been elected as a member of Panchayat earlier thereto. It not only incorporates

within its purview all persons who would be members of the Panchayat in futuro, but also those who were

sitting members. In other words, the bar created to hold the post of member of Panchayat would bring

within its purview also those who were continuing to hold post.

10. It may be true the amendment came into effect on 8.8.2003. The legislative policy emanating

from the aforesaid provision, in our opinion, is absolutely clear and unambiguous. By introducing the said provision, the legislature, inter alia, intended that for the purpose of bringing grassroot democracy, a

person should not be permitted to hold two posts created in terms of Constitution (73rd Amendment) Act. It is true that ordinarily a statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition

against retrospective construction is not a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute intendment of the legislature is clear, the Court will give effect thereto.

For the said purpose, the general scope of the statute

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is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. [See

Govt. of India & Ors. vs. Indian Tobacco Association, (2005) 7 SCC 396.]

"The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or

by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted

retrospectively when there is a clear intendment that they are to be applied to past events. The reason why

penal statutes are so construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye,(1861) 10 C.B. NS 179 at p.191 in the following words:

"Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the

legislature that it should be so construed is expressed

in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment."

This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power."

11. While construing the beneficial provisions of 428 of the Criminal Procedure Code, 1973 in Boucher Pierre Andre vs. Superintendent, Central Jail, Tihar,

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New Delhi & Anr. [(1975) 1 SCC 192], this Court opined:

"This section, on a plain natural construction of its

language, posits for its applicability a fact situation which is described by the clause "where an accused person has, on conviction, been sentenced to imprisonment for a term". There is nothing in this

clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the new Code of Criminal Procedure. The language of

the clause is neutral. It does not refer to any particular point of time when the accused person should have

been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would

be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new Code of Criminal Procedure. Even where an accused person has been

convicted prior to the coming into force of the new Code of Criminal Procedure but his sentence is still

running, it would not be inappropriate to say that the "accused person has, on conviction, been sentenced to imprisonment for a term". Therefore, where an accused person has been convicted and he is still

serving his sentence at the date when the new Code of Criminal Procedure came into force. Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set

off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the term."

12. The appellant was elected in terms of the

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provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by

a statute. It is now well-settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same

would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is

enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The appellant does not and cannot question the competence of the

legislature in this behalf."

20. The next contention of Shri Oak is that the construction in

question is made in 1996 and it was assessed for payment of

Grampanchayat taxes in the 2000, therefore such construction could

not be said to be covered and at best the aggrieved respondents

could have raised this issue by filing election petition but subsequent

to the election as member of the Grampanchayat, the petitioner's

right to continue as member cannot be questioned by raising the

issue of this old construction.

21. It is not possible to accept this contention either. In the case of

Dnyaneshwar M. Satav Vs. Jalindhar Dhondiba Kharabi in Writ

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Petition No.88 of 2012 decided on 18th September, 2012, I had dealt

with precisely such a contention. Mr. Oak has fairly brought this

judgment to my notice. In Paragraphs 40 to 45 of this judgment this

is what is held :

40} Now what remains to be dealt with is the case that

construction has been made fifteen to twenty years back, cannot now be construed and termed as encroachment on government land or public property.

41} Mr.Dani rightly does not urge that the provision in question has no retrospective operation or the Authorities

cannot take into account any act of the present nature merely because it was committed much prior to the initiation of the proceedings or the assumption of office as Member of Gram

Panchayat. In any event, as far as this aspect is concerned, it is concluded by a judgment of this Court in Writ Petition No.5544 of 2010 (Balwant Shankar Patil vs. Shashikant P. Patil & Ors) decided on 18th October 2011.

42} Mr.Dani's contention is that the encroachment has

been allegedly committed by construction of a house in 1994-

95 and that was to the knowledge of all, including, the respondent No.1. That act cannot be made the basis or

foundation for disqualifying the petitioner after his elections in 2010. The contention put in other words is also that if the 1 st respondent-objector had opportunity to question the nomination of the petitioner and which he availed of but was unsuccessful in having it rejected, then, at his instance the

proceedings in question could not have been initiated. Thus, section 16 cannot be resorted to at the instance of an objector like respondent No.1 who was a rival candidate and who objected to the nomination of the petitioner but when his objection is rejected, he maintains silence thereafter. He allows the election process to be completed. When results

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are also declared he does not file any election petition within the prescribed period. Now, after the period for filing an

election petition is over, he has initiated such proceedings so as to disable the petitioner and prevent him from continuing as a Member. That would mean that the petitioner and

persons like him can be vexed twice over. That is not permissible in law.

43} In my opinion, the above contentions of Mr.Dani are

totally misconceived and untenable. A Gram Panchayat is constituted under section 10 of the Act and it consists of such number of Members not being less than seven and not more than seventeen, as the State Government may prescribe, who

shall be elected in accordance with section 11. The elections to the Gram Panchayat have to be held by the State Election

Commission in terms of section 10-A and by following the procedure and manner laid down in section 11. Thereafter,

section 12 provides for the list of voters and section 13 enlists the qualifications to vote and be elected. Section 14 prescribing disqualifications commences with sub-section 1 and states that no person shall be a Member of Panchayat continue as such and then clauses (a) to (k) together with the

provisos and explanations, set out the disqualifications. One

of the disqualification is, if the person has encroached upon the government land or public property, then, he cannot be elected as a Member and if elected, cannot continue as such.

44} In the present case, it is not disputed that the construction is on government land (Gairan). Whether it is made over for management to the Panchayat or otherwise, there appears to be no dispute raised throughout that the encroachment is on government land or public property. The

question is that if such encroachment is disqualification for an elected office, then, did the legislature envisage that the determination or adjudication with regard to this disqualification can only be by an election petition as set out in section 15 of the Act or could it be by resorting to section 16 as well.

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           45}     Section   16   of   the   Act   comes   after   section   15-A.   It  

cannot be held that the legislature was unaware that after the

constitutional amendment under which Part IX and IX-A came to be introduced in the Constitution of India setting out inter alia a bar to interference by the Court in electoral matters that

section 16 will be resorted to or could be taken aid of. The legislature did not deem it fit to clarify anything but retain section 16 in the same form and once it is so retained and with an obvious purpose, then, to brush aside the plain

language of the same is impermissible. Section 16 deals with disability from continuing as a Member. That disability is on account of disqualifications which are mentioned in section

14. That a person who is duly elected or appointed was

subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment or such Member

incurs the disqualification during the term for which he has been elected or appointed, are both matters which disable

him from continuing and, therefore, covered by this section. His office shall become vacant the moment he is disqualified. The question whether any vacancy has occurred under this section, if raised suo motu or on an application made by any person, has to be decided by the Collector. Therefore, it

would not be possible for me to ignore this section and its

language, which is plain, unambiguous and clear. There is no scope for interpretation if this plain language is taken into consideration."

22. In such circumstances, when the construction was made is

wholly irrelevant. That would mean that the provision has a

retrospective operation according to this argument which taken to its

logical end is not accurate. That such provision can take into

consideration past events and antecedents prior to it being enacted

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is equally well settled. That does not make the provision

retrospective. Encroachment on Government land or public property

by those seeking election to Local bodies has always been a vexed

question. The persons desiring to hold public office and indulging in

such act can hardly be said to be true representatives of the people.

Their moral character has to be spotless if they desire to represent

the people. Any person seeking to represent or representing

common man should not be accused of any encroachment on

Government land or public property. It is well settled that the

provisions deal with encroachment on Government land or public

property. The argument that this not a Government land and

therefore there is no encroachment is thus without force.

23. The encroachment is on government land which was

earmarked for grazing of cattle and that it is part of a Gaothan and

that is what is urged now is equally an argument in frustration and

desperation because the concept of Gaothan is not something which

was absent to the legislature. The legislature was aware of all such

usages, designations and earmarking. Therefore, advisably very

wide words and above terminology, as would have far reaching

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consequences, has been used. It is not only a Government land on

which the encroachment is found to be an act which disqualifies a

person from being elected or continuing as a member. An act of

encroaching on public property equally invites similar consequences

and a bar for being elected or continuing in office. The distinction

between government land and public property has also been made

in a decision to which I was a party. In the case of Shantaram

Narayan Raut Vs. Additional Collector and others, Writ Petition

No.3241, decided on 4th September, 2012, similar Question was

answered as under:

"18 In the instant case, disability is on account of Section 14(1)(j-3) which states that no person shall be a

member of the Village Panchayat or continue as such who

has encroached upon the Government land or public property.

19 While it is true that both these terms are not defined in the Act and they take their colour from ordinary and common parlance, yet these have legal connotations. They

have some purpose and meaning. Their definite legal impact has always been understood and if one is required to refer to their meaning in a Statute or law, a reference can usefully be made to the Advanced Law Lexicon by P. Ramanatha

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Aiyar, 3 rd Edition Reprint 2007 , in which the term "Government land" has been defined to mean the land

belonging to the Government i.e. the land of which the

Government is the proprietor and does not include the land in which the proprietary rights in the soil vest in a private individual, whether or not it be subject to payment of

assessment to the Government.

20 The term "public land" has also been defined in

this very work to mean such lands vesting in the Government

and which are subject to sale or other disposal under the general laws. The terms "public lands" or "public domain" are

habitually used to describe such as are vested in the State and which are subject to sale or other disposal under the general laws. There is no statutory definition of the words

"public land" and their meaning may vary for different

purposes and they should be given such meaning in each case as comforts with the intention of the parties using the

lands. However, the work also clarifies the land or land interest held by the Government without regard to how the Government acquired ownership; unappropriated land belonging to the federal or State Government is also termed

as public land and its other meaning is the Government land and public ground.

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          21            Equally,   the   term   "public   property"   has   been  

always understood to mean the property owned by the

Government or local bodies on behalf of the community in

general. The "public property" means any property belonging to the Government or any local authority. The Prevention of Damage to Public Property Act, 1984 defines the term "public

property" as under:-

"Section 2. Definitions:

(b) "public property" means any property, whether

immovable or movable (including any machinery) which is

owned by, or in the possession of, or under the control of--

                        (i)      the Central Government; or
                                
                        (ii)     any State Government; or
                        (iii)    any local authority; or
                        (iv)     any corporation established by, or under, a  
       


          Central, Provincial or State Act; or
    



                        (v)      any company as defined in Sec.617 of the  
          Companies Act, 1956; or





                        (vi)     any   institution,   concern   or   undertaking  

which the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided that the Central Government shall

not specify any institution, concern or undertaking under this sub-clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or

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indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly

by one or more State Governments."

22 It is clear that the Bombay Village Panchayats Act, 1958, specifies encroachment on Government land or public

property. Encroachment means an act which is wrongful and illegal or not permissible in law. That is how encroachment upon Government land or public property is understood. The

term "public property" is also used in the provision, so also,

"Government land". The encroachment on the Government land or public property which includes public land, is an act

which invites disqualification. However, when there is disqualification from being elected or continuing as a member for having committed encroachment on the Government land

or public property, then, the concept has to be understood in

the context of what can be described as Government land or public property. The words have not been used in the sense

that a land or property capable of being used by the Government or public will come within the legal provision in question. The land or property must be a Government land or public property and that can only be as set out above. It

cannot be a vague or indefinite concept or else that would create confusion and chaos. Ultimately, the words find their place in the Bombay Village Panchayats Act, 1958 which is an

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Act to provide for constitution and administration of the Village Panchayats.

25 The public property is one to which the members of public have free and unrestricted access. That place or land or property may not be owned by the Government or

local authority, but if it belongs to or is donated or granted or allotted for use of the members of public, then, it is broadly understood as public property. The open space in the village

meant for use by the public or members of public or villagers

is certainly a public property.."

24. The word "Gaothan" is Gaothan is defined in Section 2(10)

of the Maharashtra Land Revenue Code, 1966 as under:

" Gaothan " or " village site" means the land included within the site of a village , town or city as determined by

section 122 ;"

25. Section 122 provides for Limits of sites of villages, towns and

cities and how they are to be fixed. That the land is designated as

Gaothan and therefore it is within the village limits, cannot be of any

assistance to the petitioner. Gaothan or village site has been defined

only for the purposes of showing that these are sites and lands

within the limits of village. Thus, there is nothing in the Maharashtra

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Land Revenue Code, 1966 or any other law which states that such

village site or land within village limit cannot be earmarked for

grazing of cattle. If it is earmarked for grazing of cattle and report of

the Tahsildar says that it is Gurcharan land, then it is definitely

covered by the concept of public property. It is too late in the day to

contend that making a construction on such land will not amount to

encroachment. If that was the only argument, I do not see why the

petitioner rested his case on the nature of construction that he made

on this land. He says that he has made a permanent construction of

bricks and cement but that is used as a cattle shed and therefore

there is no encroachment on the land. Thus, the first argument and

this plea cannot go together. If what the petitioner claims to have

made is a permanent construction with bricks, stones and cement

and that too without permission, and which is unauthorized and

illegal terming it to be an encroachment, then he may claim to have

used it as a cattle shed but it is a construction on Gairan land and

by entering upon and encroaching it. However, both the

Commissioner and Collector, while relying on the report of the

Tahsildar committed no error because the report as also the findings

are that this construction is used for residence and for commercial

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purpose. This is not a construction, which could be said to be

therefore permitted or authorized. The construction of this nature is

thus clearly covered by Section 14(1)(j-3) of the Act.

26. The finding of the collector relying upon the above report is that

the construction made has been assessed in the name of the

petitioner. The construction has not been regularized, and

therefore, the petitioner's act disqualifies him and disables him from

continuing as a member of the Grampanchayat. The Commissioner,

while concurring with this finding, has relied upon the report. The

report of the Tahsildar is that this construction is on Survey No.

148/1; the land is shown as Gurcharan and belongs to the Revenue

Department. It has a construction admeasuring 20 x 30 feet and

cattle was found tied there. However, this is a construction made

without any permission and authority and assessed as a house

property in the Grampanchayat record from the year 2000. In such

circumstances, to now hold that this construction cannot be said to

be encroachment is impermissible. In writ jurisdiction, it is not

possible to re-assess and re-appreciate the factual findings on

record. Once the findings are consistent with the material placed

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and cannot be said to be perverse, then, the intervention in writ

jurisdiction is impermissible.

27. The Collector and Commissioner have both found that the

construction has been made by the petitioner. At page 20 and 21 of

the paper book is a finding of the collector that the construction has

been made on Government gurcharan land and it is of residential

and commercial nature. In these circumstances, when such is the

finding of fact, based on the material placed on record, then, it

cannot be said that the impugned orders are vitiated by any errors of

law apparent on the face of record or perversity warranting

interference in the writ jurisdiction. Once the above conclusion is

reached and only two grounds on which the orders under challenge

are questioned, then there is no alternative but to dismiss this

petition. Rule is therefore discharged. No costs.

28. The reliance placed on the judgment of Hon'ble Mr. Justice

B.P. Dharmadhikari in the case of Shrikrishna Wasudeo Dhage

(supra) and that of the judgment of the Hon'ble Supreme Court in

the case of State of HP & others is misplaced. While dealing with

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identical challenge in the case of Dnyaneshwar M. Satav Vs.

Jalindhar Dhondiba Kharabi in Writ Petition No.88 of 2012, I had an

occasion to refer to both the judgments and I had distinguished the

same. Suffice to refer paragraphs 49, 50, 51, 52, 53, 54, 55 and 56

of the said judgment. These paras read as under:

49} In these circumstances, it is not possible to accept the contentions of Mr.Dani that failure to file an election

petition by the 1st respondent would result in present

proceedings being ex-facie not maintainable. If on the same allegations and facts the election petition had been

filed and 1st respondent was not successful in proving the same, then, dependent upon the findings and conclusions of the Court therein, in a given case, it could be held that a

Member is not disabled and can continue till the expiry of

his term. Ultimately, this could be a conclusion in facts and circumstances of a given case. No general rule can be laid down. However, it would definitely be a relevant factor and

if the 1st respondent had raised similar objections, at the time of scrutiny of nominations, but, a detailed verification and enquiry revealed no substance in his allegations or if

he is unsuccessful in proving the allegations at the trial of a election petition, then, one could have agreed with Mr.Dani that the present proceedings being vexatious in nature and on the general principle that no person can be

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vexed twice on the same set of facts and allegations, the proceedings before the Collector could have been

disposed off if there was no fresh or other material.

However, if the application filed by the 1 st respondent in this case is perused in its entirety, it does not only set out the objections that have been raised at the stage of

scrutiny of the nomination papers, but equally highlights the fact that there was no enquiry into these allegations nor a detailed scrutiny and therefore the petitioner can be

held to be disabled to continue as Member if the question

of his disability is gone into and decided by the Collector.

50} This is not a case of a parallel inquiry or proceeding. Nothing was pending on the date of filing the application under section 16 much less a election petition by a third

party. Equally, there is no material on record to conclude

that any prior adjudication or scrutiny in the allegations of encroachment by the petitioner has been held in which the same allegations were made and same documents were

relied on. Once there was no final and conclusive determination and adjudication, then, holding that the present proceedings were not maintainable, would be

doing violence to the plain language of section 16.

51} Even the judgment of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others vs.

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Surinder Singh Banolta reported in AIR 2007 Supreme Court 903 cannot be read in this manner.

52} Mr.Dani has heavily relied on this decision of the Hon'ble Supreme Court.

53} A closer look at the factual background in which this judgment has been rendered would reveal that section 122 of the State Act has been quoted by the Hon'ble Supreme

Court in para 4, which reads as under:

49}

In these circumstances, it is not possible to accept the contentions of Mr.Dani that failure to file an election

petition by the 1st respondent would result in present proceedings being ex-facie not maintainable. If on the same allegations and facts the election petition had been

filed and 1st respondent was not successful in proving the

same, then, dependent upon the findings and conclusions of the Court therein, in a given case, it could be held that a Member is not disabled and can continue till the expiry of

his term. Ultimately, this could be a conclusion in facts and circumstances of a given case. No general rule can be laid down. However, it would definitely be a relevant factor and

if the 1st respondent had raised similar objections, at the time of scrutiny of nominations, but, a detailed verification and enquiry revealed no substance in his allegations or if he is unsuccessful in proving the allegations at the trial of

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a election petition, then, one could have agreed with Mr.Dani that the present proceedings being vexatious in

nature and on the general principle that no person can be

vexed twice on the same set of facts and allegations, the proceedings before the Collector could have been disposed off if there was no fresh or other material.

However, if the application filed by the 1 st respondent in this case is perused in its entirety, it does not only set out the objections that have been raised at the stage of

scrutiny of the nomination papers, but equally highlights

the fact that there was no enquiry into these allegations nor a detailed scrutiny and therefore the petitioner can be

held to be disabled to continue as Member if the question of his disability is gone into and decided by the Collector.

50} This is not a case of a parallel inquiry or proceeding.

Nothing was pending on the date of filing the application under section 16 much less a election petition by a third party. Equally, there is no material on record to conclude

that any prior adjudication or scrutiny in the allegations of encroachment by the petitioner has been held in which the same allegations were made and same documents were

relied on. Once there was no final and conclusive determination and adjudication, then, holding that the present proceedings were not maintainable, would be doing violence to the plain language of section 16.

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         51}     Even the judgment of the Hon'ble Supreme Court in




                                                                               

the case of State of Himachal Pradesh and others vs.

Surinder Singh Banolta reported in AIR 2007 Supreme Court 903 cannot be read in this manner.

52} Mr.Dani has heavily relied on this decision of the Hon'ble Supreme Court.

53} A closer look at the factual background in which this

judgment has been rendered would reveal that section 122 of the State Act has been quoted by the Hon'ble Supreme

Court in para 4, which reads as under:

"4. The State of Haryana pursuant to the

constitutional mandate as noticed hereinbefore

enacted the Himachal Pradesh Panchayati Raj Act,

1994 (for short "the Act"). Chapter IX of the Act

lays down general provisions relating to

incorporation, duration, territorial constituencies of

panchayat and qualifications, etc. of office-bearers.

Section 122 of the Act provides for

disqualifications, the relevant provisions whereof

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read as under:

"122(1) : A person shall be disqualified

for being chosen as, and for being, an

office bearer, of a Panchayat -

(a) if he is so disqualified by or under

any law for the time being in force for the

purposes of the election to the State

Legislature:ig Provided that no person shall be

disqualified on the ground that he is less

than 25 years, if he has attained the age

of 21 years;

(b) * * *

(c) if he has encroached upon any

land belonging to, or taken on lease or

requisitioned by or on behalf of, the State

Government, a Municipality, a

Panchayat or a Co-operative Society

unless a period of six years has elapsed

since the date on which he is ejected

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therefrom or he ceases to be the

encroacher; or

* * *

(2) The question whether a person is

or has become subject to any of the

disqualifications under sub-section (1),

shall after giving an opportunity to the

person concerned of being ig heard, be

decided -

(i) if such question arises during the

process of an election, by an officer as

may be authorized in this behalf by the

State Government, in consultation with

the State Election Commission; and

(ii) if such question arises after the

election process is over, by the Deputy

Commissioner.""

54} The Issue raised before the Hon'ble Supreme Court was when a person shall be disqualified for being chosen

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as and being office bearer of the Panchayat. If he has encroached upon the land belonging to or taken on lease

or acquisition or on behalf of the State Government

Municipality Panchayat etc, it is a ground on which he can be disqualified. It can be raised and decided, but, if it arises during the process of election it has to be decided

by the State Government in consultation with the State Election Commission and if the question arises after the election process is over, it has to be decided by the Deputy

Commissioner. Then, section 163 is referred to in para 6

which provides for the remedy of a election petition. The factual aspects were noted inasmuch as there the

application was filed by respondent No.2-Daulat Ram alleging that Surinder Singh Banolta was declared an encroacher and he was, therefore, disqualified to hold the

elected post and thus should not be continued therein. The

Deputy Commissioner took cognizance of the complaint and by his order dated 4 th June 2002, declared Surinder Singh Banolta as disqualified.

55} Then, the facts in relation to the encroachment are referred to and what has been held by the Hon'ble

Supreme Court is that the 1 st respondent was declared to be an encroacher in the year 1998. The Notification for election was issued on 16th November 2000 and the 1st respondent before the Supreme Court was declared

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elected on 5th January 2001. An election petition was, therefore, maintainable for setting aside the election. The

Supreme Court by agreeing with the High Court held that

in terms of section 163 of the Act, an election petition, therefore, was maintainable for setting aside the election.

56} Equally, what the Hon'ble Supreme Court held is that the Deputy Commissioner could not have taken cognizance of the question of disqualification of the 1 st

respondent as it did not arise after the election process is

over. The Deputy Commissioner's jurisdiction to decide such question was restricted and he could have decided it

only if it arises after the election process is over. If the respondent No.2 before the Supreme Court was desirous of raising that question of disqualification during the

process of the election, he would have to raise it before the

State Government. There, issue was that the 1 st respondent was disqualified for being chosen as an office bearer of the Panchayat. That question could have been

determined only by the authorised officer in terms of section 122(1). In this context, paras 17 and 18 of this decision are clear enough and they read as under:

"17. Once, thus, a person is declared to be an encroacher prior to the date on which he has been declared as elector and if the said order has

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attained finality, the question as to whether he stood disqualified in terms of the provisions of

Section 122 of the Act, in our opinion, must be

raised by way of an election petition alone. If the submission of Mr. Attri is to be accepted, the same may result in an anomalous position.

18. If a candidate or a voter had the knowledge that the elected candidate was disqualified in

terms of Section 122 of the Act, he may file an

application. The order of eviction may come to the notice of some other person after the election

process is over. A situation, thus, may arise where two different proceedings may lie before two different authorities at the instance of two different

persons. Two parallel proceedings, it is well

settled, cannot be allowed to continue at the same time. A construction of a statute which may lead to such a situation, therefore, must be avoided. It

will also lead to an absurdity if two different Tribunals are allowed to come to contradictory decisions."

29. In the circumstances when the Supreme Court judgment is

distinguished on the basis of phraseology of section 16 of the

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Bombay Village Panchayats Act and the judgment in the case of

Shrikrishna Wasudeo Dhage (Supra ) was distinguishable

because of the peculiar facts therein, then, I do not see how any

assistance can be derived from these judgments. In fact the

judgment in Shrikrishna Wasudeo Dhage (Supra ) is being

misread repeatedly and that is what I have held in the judgment in

the case of Dnyaneshwar M. Satav Vs. Jalindhar Dhondiba Kharabi

in Writ Petition No.88 of 2012 Dnyaneshwar, particularly in para 57,

which reads thus:

57} Thus, what this decision holds is that a election petition raising the same issue may be filed. Equally, somebody may not file a election petition but a application seeking to disqualify that very elected candidate. Thus, an election

petition and such application may lie before two different authorities at the instance of two different persons and both

may go on. Such parallel proceedings cannot be allowed to continue at the same time. To avoid contradictory and conflicting decisions that the Hon'ble Supreme Court

construed the provisions in question accordingly. Beyond that, the Supreme Court judgment does not carve out a bar to the maintainability of the proceedings. Even in the Act before me, the Collector or the State Government in a given case may not proceed with the application under section 16 if

on the same allegations and facts, a election petition is pending trial. The Supreme Court decision, thus, does not assist Mr.Dani. Particularly, when the above reproduced paras are read together. While following this decision, what the learned single Judge of this Court held in the case of Shrikrishna Wasudeo Dhage vs. Shivcharan s/o Trimbakrao

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Kalne and others reported in 2010(3) Maharashtra Law Journal 281, that the question whether the nomination paper

of the petitioner before the learned single Judge can be rejected under section 14(1)(j-3) cannot be gone into an election petition under section 15. Election petition under

section 15 can question the validity of the elections. However, a careful reading of the judgment of the learned single Judge would reveal that the petitioner therein was regarded as an encroacher in 2007-2008 and she has tried

to get the encroachment regularised. However, these events are after her election. The contention that was raised before the learned single Judge was that this encroachment, therefore, could have been used to challenge her election by

filing election petition under section 15 of the Act, was clearly misconceived. On that ground, the proceedings under

section 16 were questioned and it was urged that they were not maintainable. The learned Judge rejected these

contentions. This is clear from a reading of paras 7 and 8 of his decision. In para 9, reference is made to the decision in the case of State of Himachal Pradesh and others vs. Surinder Singh Banolta (supra) and it has been held thereafter that this judgment does not help the petitioner. In

the case before the learned single Judge the encroachment

was after commencement of the term and that is how the elected Member can be held to be disabled from continuing as such in terms of section 16. If the proceedings under section 16 were held to be maintainable on account of

disqualification being incurred during the term of the office, then, there is no question of any parallel proceedings. There is only one inquiry into the issue of encroachment.

30. For all the reasons this petition is devoid of merits and is

dismissed.

31. At this stage, the learned counsel Shri Oak appearing for the

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petitioner prays for continuation of the order dated 15th June, 2012

and prior order dated 10th May, 2012. Those orders grant ad-interim

protection terms of prayer cause (b). This request is opposed.

Bearing mind that the Court has dealt with the legal controversy

and the petitioner seeks a chance to challenge this judgment further,

interest of justice would be served if this ad interim order is

continued for a period of six weeks. Accordingly the ad interim

orders continued for a period of six weeks.

                                
                               
                                                 (S. C DHARMADHIKARI, J.)
          
       






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