Anita Hemantkumar Barawade vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9775 Bom

                                                         923-wpst33885-17

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION


                   WRIT PETITION (STAMP) NO.33885 OF 2017


      Sou Anita Hemantkumar Barawade                )
      Age 41 years, occupation Agriculture          )
      R/O Shigaon, Tal. Walwa, Distt. Sangli.       )         ...Petitioner

                   ....Versus....

      1).   The State of Maharashtra,            )
            Mantralaya, Mumbai - 400 032.        )
                                                 )
      2).   The Divisional Commissioner, Pune )
                                                 )
      3).   The District Collector, Sangli       )
                                                 )
      4).   Grampanchayat, Shigaon               )
            Tal. Walwa, District Sangli          )
                                                 )
      5).   Rajendra Shivaji Pawar               )
            Age 36 years, Occupation Agriculture )
            R/O Shigaon,Tal. Walwa,              )
            District Sangli.                     )            ...Respondents


      Mr.S.A. Rajeshirke for the Petitioner.

      Mr.S.D. Rayrikar, A.G.P. for the State - Respondent Nos.1 to 3.

      Mr.R.N. Gite for the Respondent No.5.


                                       CORAM : R.D. DHANUKA, J.

DATE : 19TH DECEMBER, 2017.

ORAL JUDGMENT :-

1. Rule. Learned A.G.P. for the respondent nos.1 to 3 waive

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service. The respondent no.4 has been served. Learned counsel for

the respondent no.5 also waives service.

2. By consent of parties, who are present in Court heard

finally.

3. By this petition filed under Article 227 of the Constitution of

India, the petitioner has impugned the order dated 19th August, 2017

passed by the learned Additional Commissioner, Pune allowing the

appeal filed by the respondent no.5 thereby disqualifying the

petitioner under section 14(1)(j-3) of the Mumbai Village Panchayat

Act, 1958 and disqualifying her as a member of the respondent no.4

Grampanchayat. Some of the relevant facts for the purpose of

deciding this petition are as under :-

4. The petitioner was elected by majority as the member of

Shigaon Grampanchayat in the year 2012 on the seat reserved for

Scheduled Caste Eoman Category and was thereafter elected as

Sarpanch on the reserved post. On 12th April, 2016, the respondent

no.5 filed an application before the respondent no.3 seeking

disqualification of the petitioner on the ground that the husband of the

petitioner had alleged to have committed an encroachment on the

Government property. The said application was opposed by the

petitioner by filing reply on 24th May, 2016. By an order dated 28th

June, 2016, the respondent no.3 rejected the said application filed by

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the respondent no.5 on the ground that for the alleged encroachment,

if any, by the husband of the petitioner on the Government property,

the petitioner could not have been disqualified as member of the

Village Panchayat.

5. Being aggrieved by the said order dated 28 th June, 2016,

the respondent no.5 preferred an appeal before the learned Divisional

Commissioner, Pune. By an order dated 19 th August, 2017, the

learned Divisional Commissioner, Pune allowed the said appeal filed

by the respondent no.5 and declared the petitioner as disqualified as

a member of the Village Panchayat. This order of the learned

Divisional Commissioner, Pune is impugned by the petitioner in this

petition.

6. Learned counsel appearing for the petitioner invited my

attention to the annexures to the petition including the impugned

order passed by the respondent nos.2 and 4. He also invited my

attention to the decree passed by the learned 7th Joint Civil Judge,

Junior Division, Islampur in Regular Civil Suit No.111 of 2016 which

was filed by Mr.Mahesh B. More against Gramsevak and also against

the husband of the petitioner inter-alia praying for perpetual

injunction. He submits that even in the said suit, a finding was

recorded that the husband of the petitioner has not carried out any

encroachment on the Government property.

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7. It is submitted by the learned counsel that even if the

husband of the petitioner would have carried out an encroachment on

the Government property, on that ground, the petitioner could not

have been disqualified as a member under section 14(1)(j-3) of the

Mumbai Village Panchayat Act, 1958. In support of this submission,

he placed reliance on the unreported judgment of the Supreme Court

delivered on 13th November, 2017 in case of Sagar Pandurang

Dhundare vs. Keshav A. Patil & Ors. in Civil Appeal Nos(s).2306-

2307 of 2017 with other connected matters. He also placed reliance

on the unreported judgment of this Court delivered on 20 th November,

2017 in case of Sou.Rohini D. Zagade vs. Shri Sangramsinh M.

Rajenimbalkar & Ors. in Writ Petition No.11401 of 2017 holding that

if any encroachment even if carried out by the husband of the

member, such member cannot be disqualified on the ground of such

alleged encroachment under section 14(1)(j-3) of the Mumbai Village

Panchayat Act, 1958.

8. Learned counsel for the respondent no.5 on the other

hand submits that the tenure of the petitioner as a member of the

Village Panchayat is already completed and thus this petition has

become infructuous. Learned A.G.P. supports the orders passed by

the learned Divisional Commissioner, Pune and submits that there

being no infirmity in the said order passed by the learned Divisional

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Commissioner, Pune, this Court shall not interfere with the said

order.

9. Learned counsel in rejoinder submits that though the

tenure of the petitioner is over, any such findings and conclusions in

the impugned order passed by the Divisional Commissioner, Pune

thereby disqualifying the petitioner as a member of the Village

Panchayat under section 14(1)(j-3) of the Mumbai Village Panchayat

Act, 1958 if not set aside, it would affect the petitioner in future.

10. A perusal of the order passed by the respondent no.2

indicates that the learned Divisional Commissioner, Pune has

disqualified the petitioner as a member of the Village Panchayat in

question under section 14(1)(j-3) of the Mumbai Village Panchayat

Act, 1958 only on the ground that the husband of the petitioner has

carried out an encroachment on the Government property. Learned

Divisional Commissioner, Pune has reversed the order passed by the

respondent no.3, who had adverted the judgment of the Supreme

Court and has followed the said judgment while rejecting the

application for disqualification made by the respondent no.5.

11. The Supreme Court in case of Sagar Pandurang

Dhundare (supra) has specifically dealt with and has construed the

provisions of section 14(1)(j-3) of the Mumbai Village Panchayat Act,

1958 and after adverting to the various judgments of this Court, has

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held that the person, who has encroached upon the Government land

or public property, as the law now stands, for the purpose of

disqualification, can only be the person, who has actually, for the first

time, made the encroachment. The Supreme Court also dealt with the

objects and the reasons of the amendment introduced in 2006 while

dealing with the issue whether a family member of the person who

has carried out such encroachment can be disqualified on the ground

that his family member has carried out some encroachment on the

Government property.

12. A learned single Judge of this Court in the judgment

delivered on 20th November, 2017 in case of Sou.Rohini D. Zagade

(supra) has adverted to the judgment of the Supreme Court in case of

Sagar Pandurang Dhundare (supra) and has held that if the

member himself has committed encroachment on a Government land

and/or public property or an order has been passed against the

member for encroachment and/or eviction under section 53(1) or

53(2) of the Act, an action of disqualification can be issued only

against the member. In the facts of this case, admittedly it is not the

case of the respondent no.5 that any encroachment on the

Government property was carried out by the petitioner herself. The

judgment of the Supreme Court in case of Sagar Pandurang

Dhundare (supra) and the judgment of this Court in case of

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Sou.Rohini D. Zagade (supra) would squarely apply to the facts of

this case. I am respectfully bound by these two judgments.

13. In my view, since the petitioner had not allegedly carried

out any encroachment upon the Government land or the public

property, even if the husband of the petitioner would have carried out

any such encroachment upon the Government land or the public

property, the petitioner could not have been disqualified under section

14(1)(j-3) of the Mumbai Village Panchayat Act, 1958 on that ground.

The impugned order passed by the respondent no.2, in my view, is

thus passed in the teeth of the judgment delivered by the Supreme

Court in case of Sagar Pandurang Dhundare (supra) and the

judgment of this Court in case of Sou.Rohini D. Zagade (supra) and

is ex-facie perverse and thus deserves to be set aside.

14. Insofar as the submission of the learned counsel for the

respondent no.5 that since the term of the petitioner has expired and

thus this petition shall be simplicitor dismissed as infructuous is

concerned, I am not inclined to accept this submission of the learned

counsel for the simple reason that the order of disqualification of the

petitioner on such illegal reasoning if is allowed to remain on the

record of the authorities, it would affect the petitioner in future. The

submission of the learned counsel for the respondent no.5 is rejected.

15. I therefore, pass the following order :-

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a). The Writ Petition (Stamp) No.33885 of 2017 is allowed in

terms of prayer clauses (a) and (b). Rule is made absolute in

aforesaid terms. There shall be no order as to costs.

16. If any authority proposes to take any action against the

husband of the petitioner for allegedly carrying out any encroachment

on the Government property, it is made clear that this order will not

prevent the authorities to initiate such action and the same may be

decided on its own merits.

(R.D. DHANUKA, J.)