Bombay High Court
Sau. Sangita Vijay Choudhary vs The Additional Commissioner, ... on 17 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.431 OF 2016
AND
WRIT PETITION NO.514 OF 2016
WRIT PETITION NO.431 OF 2016
Sandip Ganpatrao Bhadade,
Aged about 35 years,
Occupation -
Village - Khanapur,
Tq. Morshi, District Amravati. ... Petitioner/
Ori. Non-Applicant
Versus
1. The Additional Commissioner,
Amravati Division, Amravati.
2. Additional Collector,
Amravati.
3. Rajendra Motiram Pande,
Aged about 52 years,
Occupation - Agriculturist,
R/o Village Khanapura,
Tq. Morshi,
District - Amravati.
4. Pawan Madhukar Agarkar,
Aged about 48 years,
Occupation - Agriculturist,
R/o Village Khanapura,
Tq. Morshi,
District - Amravati.
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5. Secretary, Gram Panchayat,
Khanapur, Tq. Morshi,
District - Amravati.
6. Deputy Superintendent of Land
Record, Morshi, Tq. Morshi,
District - Amravati. ... Respondents/
(Respondent Nos.3 to 6
Original Applicants)
WRIT PETITION NO.514 OF 2016
Sau. Sangita Vijay Choudhary,
Aged about 30 years,
Occupation - Household,
R/o Village Khanapur,
Tq. Morshi,
District - Amravati. ... Petitioner/
Ori. Non-Applicant
Versus
1. The Additional Commissioner,
Amravati Division, Amravati.
2. Additional Collector,
Amravati.
3. Rajendra Motiram Pande,
Aged about 52 years,
Occupation - Agriculturist,
R/o Village Khanapura,
Tq. Morshi,
District - Amravati.
4. Pawan Madhukar Agarkar,
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Aged about 48 years,
Occupation - Agriculturist,
R/o Village Khanapura,
Tq. Morshi,
District - Amravati.
5. Secretary, Gram Panchayat,
Khanapur, Tq. Morshi,
District - Amravati.
6. Deputy Superintendent of Land Record,
Morshi, Tq. Morshi,
District - Amravati. ... Respondents/
(Respondent Nos.3 to 6
Original Applicants)
In both these writ petitions :
Shri A.S. Kilor, Advocate for Petitioner.
Shri B.M. Lonare, Assistant Government Pleader for Respondent
Nos.1, 2 and 6.
Shri N.A. Gawande, Advocate for Respondent Nos.3 and 4.
CORAM : R.K. DESHPANDE, J.
th
DATE OF RESERVING THE JUDGMENT : 10 October, 2016
DATE OF PRONOUNCING THE JUDGMENT : 17th October, 2016
JUDGMENT :
1. Heard the learned counsels appearing for the parties. Rule.
Taken up for final disposal.
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2. In both these matters, the petitioners were elected as a
Member of a Panchayat in the election held on 22-4-2015. By
common order dated 8-12-2015, both the petitioners were
disqualified under Section 14(1)(j-3) of the Maharashtra Village
Panchayats Act, 1958 (for short, "the said Act"), and the said order
has been confirmed by the Additional Commissioner, Amravati
Division, Amravati in an appeal preferred under Section 16(2) of
the said Act.
3. The authorities below have held that petitioner-Sandip
Ganpatrao Bhadade in Writ Petition No.431 of 2016 is residing on
the property admeasuring area 37.50 sq.mtrs. of Plot No.957 owned
by Tukaram Karnaji Bhadade, which is an encroachment over the
land owned by the Public Works Department. In respect of
petitioner-Sau. Sangita Vijay Choudhary in Writ Petition No.514 of
2016, the finding is recorded that she is residing on Plot No.77,
which is the property owned by the Government, as shown in the
city survey record, and the name of one Maroti Natthuji Choudhary,
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the father-in-law is shown as illegal occupant. Thus, the finding of
both the authorities below in respect of the petitioners is that though
the petitioners are neither owners of the property nor have
themselves made an encroachment over the Government land or the
public property, they are residing or occupying the property, which
is an encroachment over the Government land.
4. The question involved in these matters is whether a
member of a Panchayat occupying the property, which is an
encroachment upon the Government land or public property, is
liable to be disqualified under Section 14(1)(j-3) of the said Act.
5. In order to consider the aforesaid question, certain
provisions of the Maharashtra Village Panchayats Act, 1959 need to
be considered. Section 9 therein makes every Panchayat to be a
corporate by its name having perpetual succession and common seal
with a power to acquire and hold the property and can sue and be
sued in its own name. Chapter III under the said Act deals with the
administrative powers and duties of Panchayats, as are prescribed
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under Sections 45 to 54.
6. Section 53 under Chapter III deals with the obstructions
and encroachments upon public streets and open sites.
Sub-sections (1), (2), (2-A), (3) and (4) being relevant, are
reproduced below :
"53. Obstructions and encroachments upon public
streets and open sites.-(1) Whoever, within the limits of
the gaothan area of the village
(a) builds or sets up any wall, or any fence, rail, post,
stall, verandah, platform, plinth, step or structure or
thing or any other encroachment or obstruction, or
(b) deposits, or causes to be placed or deposited, any
box, bale, package or merchandise or any other thing,
or
(c) without written permission given to the owner or
occupier of a building by a Panchayats, puts up, so as
to protect from an upper storey thereof, any verandah,
balcony, room or other structure or thing.
In or over any public street or place, or in or over or upon
any open drains, gutter, sewer or adueduct in such street
or place, or contravenes any conditions subject to which
any permission as aforesaid is given or the provisions of
any byelaw made in relation to any such projections or
cultivates or makes any unauthorised use of any grazing
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land, not being private property, shall on conviction, be
punished with fine, which may extend to fifty rupees, and
with further fine which may extend to five rupees for every
day on which such obstruction, deposit, projection,
cultivation or unauthorised use continues after the date of
first conviction for such offence.
(2) The Panchayat shall have power to remove any such
obstruction or encroachment and to remove any crop
unauthorisedly cultivated on grazing land or any other
land, not being private property, and shall have the like
power to remove any unauthorised obstruction or
encroachment of the like nature in any open site not being
private property, whether such site is vested in the
Panchayat or not, provided that if the site be vested in
Government the permission of the Collector or any office
authorised by him in this behalf shall have first been
obtained. The expense of such removal shall be paid by
the person who has caused the said obstruction or
encroachment and shall be recovered in the same manner
as an amount claimed on account of any tax recoverable
under Chapter IX.
It shall be the duty of the panchayat to remove such
obstruction or encroachment immediately after it is
noticed or brought to its notice, by following the
procedure mentioned above.
(2-A) If any Panchayat fails to take action under
sub-section (2), the Collector suo motu or on an
application made in this behalf, may take action as
provided in that sub-section, and submit the report thereof
to the Commissioner. The expense of such removal shall
be paid by the person who has caused the said obstruction
or encroachment or unauthorised cultivation of the crop
and shall be recoverable from such person as an arrear of
land revenue.
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(3) The power under sub-section (2) or sub-section (2-A)
may be exercised in respect of any obstruction,
encroachment or unauthorised cultivation of any crop
referred to therein whether or not such obstruction,
encroachment or unauthorised cultivation of any crop has
been made before or after the village is declared as such
under this Act, or before or after the property is vested in
the Panchayat.
(4) Whoever, not being duly authorised in that behalf
removes earth, sand and other material from, or makes
any encroachment in or upon an open site which is not
private property, shall, on conviction, be punished with
fine which may extend to fifty rupees, and in the case of an
encroachment, with further fine, which may extend to five
rupees for every day in which the encroachment continues
after the date of first conviction."
A Panchayat is conferred with the power under sub-section (2) to
remove any obstruction or encroachment and to remove any crop
unauthorisedly cultivated on the grazing land or any other land and
open sites not being a private property, whether such site is vested
in the Panchayat or not. If the site is vested in the Government, the
permission of the Collector or any officer authorised by him in that
behalf should have been first obtained before occupying the
property. It is the duty of the Panchayat to remove obstruction or
encroachment immediately after it is noticed or it is brought to its
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notice. The power to remove such obstruction or encroachment
extends to those made before or after the village is declared as such
under the Act or before or after the property is vested in the
Panchayat.
7. Any person committing an act of obstruction or
encroachment upon public street or place or unauthorizedly uses the
same or continues to commit such act, commits an offence, which is
punishable with fine of Rs.50/- under sub-section (1) of Section 53
of the said Act. Under sub-section (4) therein, whoever, not being
duly authorized, makes any encroachment in or upon an open site,
which is not private property, or continues to commit such an act,
commits an offence, which is made punishable with fine of Rs.50/-.
8. Section 10 of the said Act deals with the constitution of
Panchayat, which consists of members elected under Section 11
therein, from different constituencies. Being a constituent of
Panchayat, every individual member, jointly with others and
severally is duty-bound to remove any obstruction or encroachment
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upon any land, which is not a private property, but the Government
land or public property and to prosecute the persons creating such
obstruction or encroachment.
9. Section 184 of the said Act deals with members, etc., of
Panchayats to be public servants, and it runs as under :
"184. Members, etc., of Panchayats to be public
servants.- Every member of a Panchayat and every office
and servant maintained by or employed under a
Panchayat shall be deemed to be a public servant within
the meaning of Section 21 of the Indian Penal Code."
In terms of the aforesaid provision, a member of Panchayat is
deemed to be a public servant, as defined under Section 21 of the
Indian Penal Code.
10. Section 180 of the said Act deals with the bar of action
against Panchayats, etc., and previous notice before institution. The
said provision is reproduced below :
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"180. Bar of action against Panchayats, etc., and
previous notice before institution.- (1) No action shall lie
against any member, officer, servant or agent of a
Panchayat acting under its direction, in respect of
anything in good faith done under this Act or any rule or
by-law.
(2) No action shall be brought against any Panchayat or
any member, officer, servant or agent of such Panchayat
acting under its direction for anything done or purporting
to have done by or under this Act, until the expiration of
three months next after notice in writing has been left or
delivered at the office of the Panchayat and also at the
residence of the member, officer, servant or agent thereof
against whom the action is intended to be brought. The
notice shall state the cause of action, the nature of the
relief sought, the amount of compensation claimed and the
name and place of abode of the person who intends to
bring the action.
(3) Every such action shall be commenced within six
months after the accrual of the cause of action, and not
afterwards.
(4) If any Panchayat or person to whom a notice under
sub-section (2) is given shall, before an action is brought,
tender sufficient amends to the plaintiff and pay into Court
the amount so tendered, the plaintiff shall not recover
more than the amount so tendered. The plaintiff shall also
pay all costs incurred by the defendant after such tender."
Sub-section (1) of Section 180 protects a member of a Panchayat
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from any action taken in good faith under the provisions of the Act
or any rule or bye-law. Sub-section (2) is couched in the negative
language and states that no action shall be brought against any
member for anything done or purporting to have done by or under
the Act, until the expiration of three months next after notice in
writing has been left or delivered at the office of the Panchayat and
also at the residence of the member, against whom the action is
intended to be brought.
11. It is in the background of the aforesaid provisions of law,
that the provisions of qualifications and disqualifications to vote,
contest the election and being continued as a member of Panchayat,
are required to be considered. Section 13 of the said Act deals with
the persons qualified to vote and be elected. The persons incurring
any disqualification under the provisions of the said Act are neither
qualified to vote nor to be elected as a member of a Panchayat.
Section 14 deals with different kinds of disqualifications, as
stipulated in clauses (a) to (k) under sub-section (1), which operate
against two kinds of persons - (i) who proposes to become a
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member of a Panchayat, and (ii) who has become a member of a
Panchayat. If a person has incurred any one or more
disqualifications, then he is prohibited from becoming a member of
a Panchayat, and if he becomes a member of a Panchayat, then he is
not entitled to continue as such. The disqualification under
Section 14 is in respect of the acts, events, deeds, misdeeds,
transactions, etc, which have been done, happened or occurred
before entering into the office as a member of a Panchayat as well
as those which take place during continuance as a member of a
Panchayat.
12. The provision of Section 14(1)(j-3) of the said Act, which
is required to be considered, is reproduced below :
"14. Disqualifications.- (1) No person shall be a
member of a Panchayat continue as such, who-
(j-3) has encroached upon the Government land or
public property."
The aforesaid provision states that no person shall be a member of a
Panchayat continue as such, who has encroached upon the
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Government land or public property. The encroachment
contemplated is by a person, who proposes to become a member of
a Panchayat and the person, who has become a member of a
Panchayat. It covers an act of encroachment committed by such
person before becoming a member as well as after becoming a
member. Thus, an encroacher upon the Government land or public
property is disqualified for being a member of a Panchayat.
13. The very object of introducing the provision of
disqualification under Section 14(1)(j-3) of the said Act is to avoid
the conflict of interest by prohibiting the persons, who are the
encroachers upon the Government land or public property to get
elected or continued as a member of the Panchayat, which is a
democratically elected body of the villagers. It is beyond
comprehension to assume that a person under statutory obligation
or a duty to protect the Government land or public property from
encroachment, commits an act of such encroachment. To permit a
person, who proposes to become a member or becomes a member
of the Panchayat to be the encroacher upon the Government land or
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public property, would be anathamatic, acting in breach of statutory
duty, exposing himself to prosecution under sub-sections (1) and
(4) of Section 53, resulting ultimately in losing the protection under
Section 180 read with Section 184 of the said Act. It is in this
context that the text of disqualification under Section 14(1)(j-3) of
the said Act is required to be analyzed and interpreted.
14. The word 'encroach' is a verb, which is defined in Black's
Law Dictionary as under :
"encroach, vb. 1. To enter by gradual steps or stealth into
the possessions or rights of another; to trespass or
intrude. 2. To gain or intrude unlawfully upon another's
lands, property, or authority."
Similarly, it is defined in Advanced Law Lexicon as
under :
"Encroach. To intrude usurpingly; make gain upon,
occupy, or use the land, right, or authority of another; to
gain unlawfully lands, property or authority of another."
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The word 'encroachment' is a noun, and it is defined in
Black's Law Dictionary as under :
"encroachment, n. 1. An infringement of another's
rights. 2. An interference with or intrusion onto another's
property."
Similarly, in Advanced Law Lexicon, it is defined as
under :
"Encroachment -
Is "an unlawful gaining upon the right or possession of
another man", a gradual entering on and taking
possession by one of what is not his own; the gaining
upon the rights or possession of another.
The action of encroaching i.e. intruding usurpingly (on
others' territory, rights etc.)"
15. "To encroach" means to enter, intrude, infringe gradually
upon the rights of others by unlawfully and without authority
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taking possession of the property, which is not of his own. Upon
completion of such act, it becomes an "encroachment". The further
act of continuing or remaining in such occupation or possession of
the property with an intention or object of beneficial enjoyment
would mean that the person committing encroachment has
'encroached' upon the property. An encroacher is a person, who
encroaches.
16. In view of the aforesaid meaning of the terminologies - "to
encroach", "encroachment", "encroacher" and "encroached",
whoever resides in the property or any portion thereof, which is an
encroachment upon the Government land or public property, can be
said to have "encroached" upon it and becomes an "encroacher".
Whether such an encroachment is jointly with others and/or
individually, either at one time or at different times remains hardly
of any significance' as he becomes liable to be removed and
prosecuted under Section 53 of the said Act. Whether a person has
become liable to be removed and/or prosecuted under
Section 53 of the said Act from the Government land or public
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property, becomes a real test of attracting disqualification under
Section 14(1)(j-3) of the said Act. If the answer is in the
affirmative, the disqualification is incurred.
17. In view of the aforesaid position, the provision of Section
14(1)(j-3) of the said Act is attracted even in a case where a
member of a Panchayat resides in the property or any portion
thereof, which is an encroachment upon the Government land or
public property. The question as to whether any other person or a
member of a family has already made an encroachment, loses its
significance and as soon as a member or proposed member joins
such act, he cannot escape from the clutches of disqualification
under Section 14(1)(j-3) of the said Act. The question framed, is
answered accordingly.
18. If an intention of the Legislature is to prevent an
encroachment upon the Government land or public property by a
person, who is deemed to be a "public servant" under Section 184
entitled to enjoy all privileges attached to it under Section 180 of
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the said Act, can it be said that such an intention of the Legislature
be defeated by adopting circuitous way of occupying the property,
which is an encroachment on the Government land or public
property. The answer would obviously be in the negative, for two
main reasons - (i) the act, which is prohibited directly, cannot be
promoted or encouraged indirectly to defeat the object and purpose
of such prohibition, and (ii) it would amount to promoting or
encouraging the conflicting interest, necessarily resulting in the
disqualification under Section 14(1)(j-3) of the said Act.
19. The first decision cited on the provision of Section 14(1)(j-3)
of the Maharashtra Village Panchayats Act, 1958 is that of the Division
Bench delivered in Letters Patent Appeal No.305 of 2012 in Writ
Petition No.2078 of 2012(D) [Shri Devidas s/o Matiramji Surwade v.
Additional Commissioner, Amravati Division, Amravati, and others) on
31-7-2012. It was a case where the petitioner was disqualified for
occupying the house constructed on Plot No.168, which was admittedly
an encroachment committed by his father in the year 1966. The
petitioner did not himself commit an act of encroachment. This Court
maintained the disqualification of the petitioner under Section 14(1)(j-3)
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of the said Act. Para 6 of the said decision, being relevant, is reproduced
below :
"6. We find that there is a definite object in making the
said amendment to the provisions of disqualification and the
object is that one, who encroaches upon the Government
land or the Government property, cannot make any claim to
represent the people by becoming an elected member of the
Gram Panchayat. The term person in the said amended
provision has to be interpreted to mean the legal heirs of
such person, who has encroached and continues to occupy
the Government land or the Government property, his agent,
assignee or transferee or as the case may be. If such an
interpretation is not made in the said provision, the result
would be absurd in the sense that the Government land
would continue to remain encroached and the legal heirs or
the assignees or the transferees remaining on such
encroached Government land shall claim the right to get
elected as a member of democratically elected body. In no
case our conscious permits such type of interpretation to
defeat the very object of the Bombay Village Panchayats
(Amendment) Act, 2006."
This Court has taken a view that the term 'person' employed under
sub-section (1) of Section 14 of the said Act has to be interpreted to
mean the legal heirs of such person, who has encroached and continues
to occupy the Government land or the Government property, his agent,
assignee or transferee, as the case may be. This Court holds that if such
an interpretation is not made, then the result would be absurd, in the
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sense that the Government land would continue to remain encroached
and the legal heirs or the assignees or the transferees remaining on such
encroached land shall claim the right to get elected as a member of
democratically elected body, which would defeat the very object of the
Bombay Village Panchayats (Amendment) Act, 2006.
20. In the decision of this Court delivered by the learned Single
Judge in the case of Ganesh Arun Chavan v. State of Maharashtra and
others, reported in 2013(2) Mh.L.J. 955, it was a case where the property
belonged to one Arun K. Chavan, the father of the petitioner, who was
elected as a member of the Panchayat. There was construction of a shop
made over the said property in the year 1994 and the grampanchayat
taxes and property taxes were paid by father Arun K. Chavan. The Court
records the finding that the petitioner did not make an encroachment, but
it was the father of the petitioner, who made an encroachment. The
Courts holds that the Legislature has not imported anything by which one
can presume that if the encroachment is made by the spouse, relative of
the member of Gram Panchayat, residing jointly with the member, on the
public property, then together with the members of such family, he is
also deemed to be guilty of the act of encroachment. The Court holds
that if that was the legislative intent, it would have been clearly
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expressed in the provision. It holds that if the act is committed by
somebody other than the elected person, then the provision of
Section 14(1)(j-3) of the said Act is not attracted. It holds that once the
Legislature itself clarified that an act of the member alone incurs or
invites disqualification, then, by interpretative process it will not be
possible to include in Section 14(1)(j-3), the act of encroachment by
members of his family and for that purpose, disqualify the elected
representative. The same view is expressed by the learned Single Judge
in the case of Kanchan Shivaji Atigre v. Mahadev Baban Ranjagane and
others, reported in 2013(1) Mh.L.J. 455, which has been followed later
on by another learned Single Judge in the case of Sandhya Hemant
Salunke v. State of Maharashtra and others, reported in
2014(5) Mh.L.J. 946.
21. In the decision in the case of Sheela Dilip Daberao v.
State of Maharashtra and others, reported in 2015(3) Mh.L.J. 231,
which I have delivered, it was a case where both the authorities
below held that one Shri Dilip Ramrao Daberao, the husband of the
petitioner, who was the owner of Plot No.73, committed an
encroachment over the Government land attached to the said
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property to the extent of 17 x 17 sq.ft. and the petitioner was
residing along with her husband in such a house. In para 3, it has
been held as under :
"[3] The disqualification alleged against the
petitioner is under section 14(1)(j-3) of the said Act,
which is reproduced below:
"14. Disqualifications.--(1) No person shall be a
member of a Panchayat continue as such, who--
(j-3) has encroached upon the Government land or
public property."
Clause (j-3) of section 14(1) of the said Act, which is
reproduced above, covers the cases where a member of
a Panchayat resides in a portion encroached upon the
Government land or public property. It will not be
necessary in such a situation to establish that such
member is the owner of the property adjacent to the
encroached portion. The question as to whether any
other member of the family has made an encroachment,
loses its significance. In the facts and circumstances of
this case, it was not be necessary for the respondents to
establish that it is the petitioner herself has encroached
upon the Government land. The decision of the learned
Single Judge of this Court in the case of Kanchan
Shivaji Atigre vs. Mahadev Baban Ranjagane and
others, 2013(1) Mh.L.J. 455, relied upon by the learned
counsel for the petitioner, would not, therefore, be
applicable in the facts of the present case."
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The view taken is that clause (j-3) of Section 14(1) of the said Act
covers the cases where a member of a Panchayat resides in a
portion encroached upon the Government land or public property
and in such situation it will not be necessary to establish that such a
member is the owner of the property adjacent to the encroached
portion and the question as to whether any member of the family
has made an encroachment, loses its significance. It is held that it
would not be necessary in such facts and circumstances to establish
that it is the petitioner herself who has encroached upon the
Government land. It is, therefore, held that the decision of the
learned Single Judge in the case of Kanchan Atigre, cited supra,
would not be applicable.
22. In another decision of the learned Single Judge of this Court
in the case of Parvatabai @ Shobha d/o Kisan Kakde v. Additional
Commissioner, Nagpur and others, reported in 2015(5) Mh.L.J. 238, it
was a case where the petitioner was residing along with her father and
other family members in house bearing No.134, standing in the name of
her father. The Additional Collector recorded the finding that there was
an encroachment committed in respect of house No.134 and though it
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was the case of the petitioner that the house property belonged to her
father, in view of the Division Bench decision in the case of
Devidas Matiramji Surwade, cited supra, the petitioner was liable to be
disqualified under Section 14(1)(j-3) of the said Act. The learned Single
Judge has considered the decisions of the Division Bench in the case of
Devidas Surwade, and also the decision delivered by the learned Single
Judge in Ganesh Chavan, Yallubai Kamble and Kanchan Atigre. It has
been held in paras 10 and 11 as under :
"10. The judgment of the Division Bench in Devidas
Surwade (supra) was delivered on 31-7-2012 and prior to
the judgments of learned Single Judge in Ganesh Chavan
(supra) dated 24-9-2012, Yallubai Kamble (supra)
dated 5-10-2012, Kanchan Atigre (supra) dated 12-10-2012.
The judgment of the Division Bench was not brought to the
notice of learned Single Judge when said decisions were
rendered.
Moreover, the judgment of the Division Bench in
Devidas Surwade (supra) on which reliance has been placed
by the learned Counsel for the respondents indicates that the
Statement of Objects and Reasons have been taken into
consideration after which it has been observed that the term
"person" in the amended provisions would have to be
interpreted to bring legal heirs of a person who has
encroached and continues to occupy Government land within
its purview. The reasons for interpreting said provisions
have thereafter been stated in para 5. The contention raised
on behalf of the petitioner that instead of the judgment of the
Division Bench in Devidas Surwade (supra), the view as
taken by the learned Single Judge in Yallubai Kamble and
Kanchan Atigre (supra) which interprets the expression
wp431.514.16.odt
"person" in an narrow sense should be preferred cannot be
accepted. The judgment of the Division Bench binds this
Court this Court the same will have to be followed. The
reliance sought to be placed on the ratio of judgment of the
Special Bench is misplaced. The decision in Devidas
Surwade (supra) being that of the Division Bench and the
expression "person" having been duly considered, it is not
permissible for this Court to go into the question as to
whether the ratio of judgments of learned Single Judge
should be followed instead of the view taken by the Division
Bench. The ratio of the judgment of the Division Bench will
have to be respectfully followed. Hence, for aforesaid
reason, the submissions made on behalf of the petitioner
cannot be accepted."
"11. As the impugned orders have been passed on the
basis of judgment of the Division Bench in Devidas Surwade
(supra), no fault can be found with the impugned orders.
The writ petition is, therefore, dismissed. Rule stands
discharged with no order as to costs."
It has been held that the earlier decision of the Division Bench was not
brought to the notice of the learned Single Judges deciding the cases of
Ganesh Chavan, Yallubai Kamble and Kanchan Atigre. It has been held
that the judgment of the Division Bench binds this Court and the same
will have to be followed. It holds that the decision in Devidas Surwade
being that of the Division Bench and the expression 'person' having been
duly considered, it is not permissible for this Court to go into the
question as to whether the ratio of the judgments of the learned Single
wp431.514.16.odt
Judge should be followed instead of the view taken by the Division
Bench. The learned Single Judge has dismissed the petition, maintaining
the decision of the disqualification given by the authorities below.
23. The decision of the Division Bench in the case of Devidas
Matiramji Surwade, and the decisions of the learned Single Judges in the
cases of Ganesh Arun Chavan, Kanchan Shivaji Atigre and Sandhya
Hemant Salunke, cited supra, are based upon the similar facts. The ratio
of the Division Bench in the case of Devidas Matiramji Surwade is that
the term 'person' employed under sub-section (1) of Section 14 of the
said Act has to be interpreted to mean the legal heirs of such person, who
has encroached and continues to occupy the Government land or the
public property, his agent, assignee or transferee or as the case may be,
was not brought to the notice of the learned Single Judges, who decided
the aforestated cases. The law laid down by the learned Single Judges in
the cases of Ganesh Arun Chavan, Kanchan Shivaji Atigre and Sandhya
Hemant Salunke to the effect that if the legislative intent was to cover the
cases of encroachment made by the spouse, relative of the member of
Gram Panchayat, residing jointly with the member, on the public
property, then it would have been clearly expressed in the provision, runs
contrary to the decision of the Division Bench in the case of Devidas
wp431.514.16.odt
Matiramji Surwade. The learned Single Judge in the case of Parvatabai
@ Shobha d/o Kisan Kakde, cited supra, has held that the ratio of the
decision of the Division Bench needs to be followed instead of the view
taken by the learned Single Judge. It is, therefore, not necessary for this
Court to refer the matter to a Larger Bench for decision, as has been
urged by Shri Kilor, the learned counsel for the petitioner.
24.
In the result, both these petitions are dismissed, maintaining the
orders passed by the authorities below, disqualifying the petitioner under
Section 14(1)(j-3) of the Maharashtra Village Panchayats Act. Rule
stands discharged. No order as to costs.
JUDGE.
Lanjewar
