Sau. Anita Laxman Junghare vs Additional Commissioner, ...
2017 Latest Caselaw 7417 Bom

 Judgment                                          1                                wp1660.17.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 1660 OF 2017



 Sau. Anita Laxman Junghare,
 Aged about 45 years, Occupation: Household, 
 Member and Sarpanch of Gram Panchayat, 
 Nagapura, Resident of Nagapura, Taluka:
 Mehkar, District : Buldana.
 (Original Respondent)                                                 ....  PETITIONER.

                                    //  VERSUS //

 1. Additional Commissioner, 
    Amravati Division, Amravati. 

 2. Additional Collector, Buldhana.

 3. Sopan Malik Khillari,
    Aged about 34 years, Occu.:Agriculturist,
    Resident of Nagapura, Taluka : Mehkar,
    District : Buldana. 
    (Original Complainant No.1)

 4. Sanjay Onkar Gaikwad,
    Aged about 33 years, Occu.: Agriculturist,
    Resident of Nagapura, Taluka : Mehkar,
    District : Buldana. 
    (Original Complainant No.2)
                                                   .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri S.V.Bhutada, Advocate for Petitioner.
 Ms M.A.Barabde, A.G.P. for Respondent Nos. 1 & 2.
 Shri V.G.Wankhede, Advocate for Respondent No.4. 
 ___________________________________________________________________


                              CORAM : S.C.GUPTE, J.

DATED : SEPTEMBER 21, 2017.

ORAL JUDGMENT :

Judgment 2 wp1660.17.odt

1. Heard learned counsel for the parties.

2. RULE. Rule made returnable forthwith. Taken up for hearing

by consent of the parties.

3. The subject matter of the present petition is an order passed by

Additional Collector, Buldana disqualifying the petitioner as Sarpanch and

Member of Gram panchayat, Nagpur under Section 14(1)(j-3) of the

Maharashtra Village Panchayats Act, 1958("Act"). The disqualification was

on a complaint made by respondent Nos. 3 and 4 herein. The complaint was

that the son of the petitioner, Ganesh @ Omshiv Laxman Junghare, had

encroached upon the government land being Survey No.131 and illegally set

up a shop by the name of Shivshakti Offset Printers for screen printing work.

The Additional Collector by his impugned order dated 16 th August, 2016 held

that the petitioner's son had encroached on government land and accordingly

disqualified the petitioner under Section 14(1)(j-3) of the Act. On an appeal

filed by the petitioner, the Additional Commissioner, Amravati Division,

Amravati by his impugned order dated 6 th January, 2017 dismissed the

appeal and confirmed the order of the Additional Collector, Buldana. The

Additional Commissioner while dismissing the appeal and affirming the order

of the Additional Collector relied on the decision of this Court in the case of

Devidas vs. Additional Commissioner, reported in 2017(1) Mh.L.J. 102.

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4. In Devidas's case (supra) a Division Bench of this Court held

that the term "person" used in Section 14(1)(j-3) of the Act ought to be

interpreted to mean even legal representative of such person who has

encroached and continues to occupy the Government land or the

Government property and also his agent, assignee or transferee as the case

may be. That was a case where a house was constructed by the petitioner's

father on a Government land. It was argued before the Court that the

encroachment was by the petitioner's father and was way back in the year

1966. It was, however, not disputed before the Court that after the death of

his father the petitioner was residing in the same house. It is in this context

that our Court considered the meaning of the word 'person' used in Section

14(1)(j-3) of the Act. The Court noted that whilst enacting the particular

disqualification, the object of the lawmakers was to prevent anyone who

encroaches upon government land/ property from making any claim to

represent people by becoming a member of Gram Panchayat. Considering

the object of the amendment, if the term 'person' were not interpreted to

mean the legal representative of such a person who has encroached and

continues to occupy the government land/ property, it would lead to an

absurd result in the sense that government land would continue to be

encroached with the legal representative or assignee, transferee, as the case

may be, remaining on such encroached government land and yet claiming

the right to be elected as a member of a democratically elected body. Our

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Court was of the view that such a result was incomprehensible and would

defeat the very object of the amended provision.

5. The facts of the present case are clearly distinguishable from

the facts in the case of Devidas Surwade(supra). In our case, the

encroachment is admittedly by an adult son of the petitioner. It is not

anyone's case that the petitioner herself is occupying the encroached property

either as a member of the son's family or otherwise. The facts of our case are

really governed by the law laid down in the case of Kanchan vs. Mahadev,

reported in 2013(1) Mh.L.J. 455 by a learned single Judge of this Court. In

Kanchan's case, the complaint against the member of the Gram Panchayat

was that she was married to one Shivaji Atigre, who claimed through a

common ancestor, Bapu Atigre. Bapu Atigre was having two sons, Shivaji

and Pandurang, and it was Bapu who had encroached on the government

land notified as 'gairaan land'. The Court held that what the legislature had

provided was a disqualification of the elected or appointed Member of

Panchayat; it is only the person, who is elected or appointed as a member,

who is subject to the disqualifications mentioned in Section 14. If either at

the time of his election or appointment or during the term for which he has

been elected or appointed, as the case may be, he incurs any of the

disqualifications mentioned in Section 14, he shall be disabled from

continuing as a member and his office shall become vacant. A bare perusal

of Section 14(1) read with Section 16 would make it apparent that it is the

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act of the person contesting the poll as a candidate or of the elected

member, as the case may be, which would disqualify him/ her. It cannot be

that somebody else commits an act of encroachment, even if he is a member

of the same family, but the consequences are visited on the elected

representative or person desiring to contest the election of the Gram

Panchayat. The Court was of the view that the provisions with regard to

disqualification would have to be construed in a manner so as not to create a

vacuum or make it impossible for the villagers to choose their representative

and constitute a Gram Panchayat. In fact, if disqualification of a member

were to be based on a member of his family indulging or committing any of

the enumerated wrongful or illegal acts, the legislature would have spoken so

and in clear and specific terms.

6. The views expressed both by the learned Single Judge in the

case of Kanchan Atigre (supra) and the Division Bench in the case of Devidas

Surwade (supra) can certainly be reconciled. There is no conflict between

the two. For attracting disqualification under section 14(1) (j-3), in a case

like this, the crucial question to be answered is: Does the legal representative

or member of the original encroacher's family continue to occupy the

government land or property. If he does, he attracts the disqualification

under Section 14(1)(j-3). It is not an answer then for such person that the

original encroachment was by his predecessor or family member and not by

himself. If that encroachment is continued by him, he attracts the

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disqualification. That was the case in Devidas Surwade. The original

encroachment may have been by the petitioner's father, but after the death of

his father, he continued to occupy the property and thereby attracted the

disqualification of section 14(1)(j-3). On the other hand, in Kanchan's case,

it was the petitioner's father-in-law, who was the encroacher; she had

nothing to do with it. It was not the case of the State that she continued to

occupy the property either as a legal heir of her father-in-law or as a member

of her husband's family. The emphasis is really on the continued

encroachment and not so much on the original act of encroachment.

Encroachment, after all, is not a one time act. It is a continuous act. If

someone's encroachment is continued by another, that other is equally an

encroacher, as much as the original encroacher.

7. In the premises, the impugned orders of the authorities below

cannot be sustained. The orders have been passed on a palpably incorrect

view of the law and need to be corrected in the writ jurisdiction of this court.

8. Accordingly, Rule is made absolute by quashing and setting

aside the impugned orders dated 6th January, 2017 and 16th August, 2016

passed, respectively, by Additional Commissioner, Amravati and Additional

Collector, Buldana and dismissing the original complaint being BVD Case No.

14(1)(j-3)/Nagpur/14/2015-16. In the circumstances of the case, the parties

shall bear their own costs.

JUDGE RRaut..