Bombay High Court
Satish Narhari Deshmukh vs The Additional Commissioner, ... on 14 December, 2017
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 124 OF 2016
Satish N. Deshmukh .. Petitioner
vs.
Additional Commissioner
Pune Division Pune and ors. .. Respondents
Mr. S.S. Aradhye for the Petitioner.
Mr. S.H. Kankal, AGP for Respondent Nos.1, 2 and 5.
Mr. A.R.Metkari,for Respondent No.3.
CORAM : M. S. SONAK, J.
DATE : 14 DECEMBER 2017
ORAL JUDGMENT :-
1] Heard Mr. Aradhye, learned counsel for the petitioner, Mr. A.R.
Metkari, learned counsel for respondent No.3 and Mr. Kankal,
learned AGP for respondent Nos.1,2 and 5.
2] Rule. Rule is made returnable forthwith at the request of and
with the consent of learned counsel for the parties.
3] The challenge in this petition is to the order dated 21 st August
2013 made by the Additional Commissioner, Pune Division in
exercise of appellate powers under Section 16(2) of the Maharashtra
Village Panchayat Act, 1958 (said Act). The Additional
Commissioner, by the impugned order has set aside the Additional
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Collector's order dated 28th February 2013, by which, he had
disqualified respondent No.3 from continuing as a member of the
village panchayat of Karkamb by relying on the provisions contained
in Section 14 (1) (j-3), i.e., encroachment on government land or
public property.
4] Mr. Aradhye submits that in this case, both the adjudicating
authorities have concurrently held that respondent No.3 has indeed
encroached upon Government property. The Additional Collector, in
fact, disqualified respondent No.3 on this ground. However, the
Additional Commissioner, by observing that this encroachment had
taken place in the year 1996 has unjustifiably absolved respondent
No.3 from the taint of disqualification. Mr. Aradhye submits that as
long as encroachment on the Government property continues,
respondent No.3, would be liable to be disqualified under the
provisions of Section 14(1)(j-3) of the said Act. He submits that the
view taken by the Additional Commissioner suffers from perversity
and is in excess of jurisdiction. Therefore, he submits that this is a fit
case to set aside the impugned order made by the Additional
Commissioner and restore the order made by the Additional
Collector.
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5] Mr. Metkari, learned counsel for respondent No.3, whilst
joining issues with the contentions of Mr. Aradhye submits that the
term for which respondent No.3 was elected as a member of
Panchayat has come to an end in October 2017. He therefore,
submits that this petition has become infructuous and may be
disposed of as such.
6] Mr. Metkari relies upon the decision of this Court in Narayan
A. Borase vs. State of Maharashtra and ors reported in 2005 (2)
Mah.L.J 1093, to submit that the section of Panchayats Act does not
provide for disqualification spreading beyond the term of Sarpanch
or a member found guilty of misconduct. He submits that since, the
alleged encroachment, was made in the year 1996, the same is quite
irrelevant for determining disqualification of respondent No.3 who
was elected as a member of the Panchayat for the term 2012-2017.
7] The rival contentions now fall for determination.
8] The term of respondent No.3, has no doubt ended, and in that
sense, the petition, could have been disposed of by merely taking
note of this fact. However, it was pointed out by Mr. Mr. Aradhye, if
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the impugned order is allowed to stand, then, there will be no bar to
the respondent No.3 continuing as a member of the Panchayat, in
case, he is elected once again. Mr. Aradhye submits that such
continuance as a member of the Panchayat simultaneous with his
continuance of encroachment on government land will, frustrate
both the letter as well as spirit of the provisions contained in Section
14(1)(j-3) of the said Act.
9] There is some merit in the submission of Mr. Aradhye. Section
14 (1)(j-3) of the said Act inter alia provides that no person shall be
a member of a Panchayat or continue as such, who, has encroached
upon Government land or public property. This means that
disqualification attaches to a person from being a member of the
Panchayat as well as from continuing as a member of the Panchayat.
The Statement of Objects and Reasons for the amendment by which
which this provision was introduced in the said Act indicates that the
purpose was to disqualify the person, who has encroached upon
Government land or public property from becoming a member of the
Panchayat or to continue as such.
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10] Recently, the Supreme Court in case of Sagar P. Dhundare vs.
Keshav Aaba Patil and ors decided on 13th November 2017 in Civil
Appeal No(S). 2306 - 2307 of 2017 had the occasion to deal with
the provisions of Section 14(1) (j-3) of the said Act. The Supreme
Court has held that encroachment on public property or Government
property is certainly to be condemned, encroacher evicted and
punished. Desirably, there should not be a member in the Panchayat
with conflicting interest. But once a person is elected by the people,
he can be unseated only in the manner provided under law. Even
with the best of intention, if there is no statutory expression of the
intention, the Court cannot supply words for the sake of achieving
the alleged intention of the law maker. It is entirely within the realm
of the law maker to express clearly what they intend. No doubt,
there is a limited extent to which the court can interpret a provision
so as to achieve the legislative intent. That is in a situation where
such an interpretation is permissible, otherwise feasible, when it is
absolutely necessary, and where the intention is clear but the words
used are either inadequate or ambiguous.
11] The above observations were made by the Supreme Court in
the context of the provisions of Section 14(1)(j-3) of the said Act
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whilst considering the issue as to whether the encroachment
contemplated in the said provision had to be by the member of the
Panchayat himself or would include encroachment by even the
family members of the member concerned.
12] In the present case, there is no ambiguity either in the
legislative provision or the legislative intent. The provision bars a
person to be a member of Panchayat or from continuing as such, if,
such person has encroached upon Government land or the public
property. The use of expression "has encroached upon" clearly
indicates that as long as the encroachment on Government land or
private property continues, the disqualification attaches. Since, the
statutory expression corresponds to the legislative intent, the
interpretation of the Additional Commissioner to the contrary,
cannot sustain.
13] Even though, the encroachment may have taken place in the
year 1996, as long as the encroachment continues, the effect of the
provisions of Section 14(1) (j-3) of the said Act cannot be avoided.
This does not appear to be a case where respondent No.3 had
encroached upon Government property some time in the year 1996
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and thereafter, restored the property to the State before contesting
elections to the membership of the Panchayat. If such was the
position, then perhaps, the issue might have been arguable.
However, if the encroachment continues, then disqualification
cannot be avoided on the specious plea that the encroachment had
taken place in the year 1996 and the respondent No.3 has been
elected as a member of the Panchayat for the term which
commenced in the year 2012.
14] It is not even the case of the respondent No.3 that by the year
2012, respondent No.3 had restored the encroached property to the
State and therefore, disqualification could not attach on the basis of
some encroachment in the past. The encroachment, continued till
the year 2012 when the petitioner was elected as a member of the
Panchayat and even thereafter, when the petitioner, continued as a
member of the Panchayat. In such circumstances, it must be held
that the Additional Collector had correctly appreciated both the facts
as well as the legal position. The Additional Commissioner, in
reversing the Additional Collector, has misconstrued the legal
position and quite unjustifiably exonerated respondent No.3.
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15] From the plain construction of the provisions in Section 14(1)
(j-3) of the said Act, it is clear that no person, shall be a member of
the Panchayat or continue as such, who has encroached upon
Government land or public property. This means that as long as
encroachment continues, the disqualification attaches. No member
can insist upon continuing with his encroachment on Government
land or public property and at the same time, claim any immunity
from disqualification as a member of Panchayat. That would clearly
be a case of conflict between interest and duty which is what the
provision seeks to avoid.
16] If, the impugned order and the reasoning therein is permitted
to stand, then, respondent No.3, if elected once again, will possibly
claim immunity from disqualification, even though, he continues to
encroach on Government property. In order to avoid such position,
not only in the case of respondent No.3, but also in similar such
cases, it is necessary that the impugned order is set aside or in any
case the reasoning adopted by the Additional Commissioner is
disapproved.
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17] The decision in Narayan Borase (supra) is not at all applicable
to the facts and circumstances in the present case. In that case, the
Court was concerned with the provisions of section 39(1) and
39(1A) of the said Act, which deal with disqualification for proved
misconduct. The Court has ruled that disqualification under the said
provisions does not extend beyond the term of the Sarpanch found
guilty of misconduct. The provisions in issue as also the facts were
entirely different from the facts with which we are concerned in the
present case.
18] For the aforesaid reasons, the impugned order dated 21 st
August 2013 made by the Additional Commissioner is set aside and
the order dated 28th February 2013 made by the Additional Collector
is restored.
19] The Rule is made absolute in the aforesaid terms. There shall
however, be no order as to costs.
(M. S. SONAK, J.)
