Bombay High Court

Abasaheb Anandrao Tambe vs Kunal Arun Bendbhar And Anr on 18 August, 2022

Bench: Nitin W. Sambre

                                                                        25-WP-9386-2022.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
                                         CIVIL APPELLATE JURISDICTION
  by BHARAT
  DASHARATH
  PANDIT
  Date: 2022.08.22
  17:20:00 +0530
                                       WRIT PETITION NO. 9386 OF 2022

                     Abasaheb Anandrao Tambe                    ..... Petitioner.
                            V/s
                     Kunal Arun Bendbhar                        ..... Respondent.
                     ------
                     Mr. Sagar A. Joshi for the Petitioner.
                     Mr. Sanjiv Sawant i/b Abhishek Deshmukh for Respondent No.1.
                     Mr. C.D. Mali, AGP for Respondent No.2.
                     ------

                                         CORAM: NITIN W. SAMBRE, J.

                                         DATE:    AUGUST 18, 2022

                     P.C.:-

                     1]       Heard.



                     2]       The encroachment made by Arun, father of Respondent No.1 on

land bearing Gat No.420 Hissa No.1 has led to initiation of

proceedings under Section 145(3) of the Village Panchayat Act

(Hereinafter referred to for the sake of brevity as "the said Act")

against the said Respondent. The Collector passed an order of

disqualification on 01/12/2021. The Additional Commissioner, in

Appeal under sub-section (2) of Section 16 of the said Act upset the

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said order. As such, this Petition.

3] Contention is, even if encroachment is made by father of

Respondent No.1, as long as has blood relation, disqualification will

operate against Respondent No.1.

4] As against above, Counsel for Respondent No.1 would urge that

disqualification is rightly held to be not justified by the Additional

Commissioner as the said Respondent is separate in mess from his

father Arun as he is residing at different place.

5] Counsel for the Petitioner has drawn support from the judgment

of the Apex Court in the matter of Janabai v. Additional Commissioner

and Ors reported in AIR SC 5068, which is followed by this Court in

Writ Petition No. 452 of 2019 in the matter of Shri Shahaji Bajirao

Jadhav v. Uttam Bahirao Patil and Ors., decided on 23/06/2022. so as

to claim that encroachment by legal heir will be considered with equal

force against the elected member within the purview of the provisions

of Section 14(1)(j-3).

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6] As against above, Counsel for Respondent No.1 would urge that

as long as, on facts, it is established that Respondent No.1 is separate

in mess and he is residing independent of the the legal heir who has

been alleged to have carried out the encroachment, order of

Additional Commissioner setting aside the order of disqualification is

justified.

7] I have appreciated aforesaid submissions.

8] Relevant paras 27, 28 and 29 of the judgment in the matter of

Janabai, cited supra read thus:-

"27. On a schematic appreciation of the Act including Sections 10, 11 and 53, it is quite vivid that the Members elected in Panchayat are duty bound to see to it that the obstruction or encroachment upon any land, which is not a private property but Government land or a public property, should be removed and prosecution should be levied against the person creating such obstruction or encroachment."

"28. Section 184 of the Act provides that every Member of the Panchayat and every officer and servant maintained by or being employed under the Panchayat shall be deemed to be a public servant for the purpose of Section 21 of the Indian Penal Code. Analysing the various provisions, the learned Single Judge in Sandip Ganpatrao Bhadade (supra) has opined:-

"11. It is in the background of the aforesaid provisions of law,

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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 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 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 not 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.

And again:-

"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 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 person, who proposes to become a member or becomes a member of the Panchayat to be the encroacher upon the Government land to public property, would be anathematic, 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."

In the case of Devidas Surwade (supra), it has been clearly

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stated, as noticed earlier, that the term 'person' has to include the legal heirs, if any, of the encroacher who continue to occupy the government land. Emphasis has been laid on encroachment and continued encroachment. After the said Division Bench judgment, number of learned Single Judges have adopted a different approach without noticing the judgment which is against judicial discipline."

"29. We may note here with profit that the word 'person' as used in Section 14(1)(j-3) is not to be so narrowly construed as a consequence of which the basic issue of encroachment in the context of disqualification becomes absolutely redundant. The legislative intendment, as we perceive, is that encroachment or unauthorized occupation has to be viewed very strictly and Section 53, therefore, provides for imposition of daily fine. It is also to be borne in mind that it is the Panchayat that has been conferred with the power to remove the encroachment. It is the statutory obligation on the part of the Panchayat to protect the interest of the properties belonging to it. If a member remains in occupation of an encroached property, he/she has a conflict of interest. If an interpretation is placed that it is the first encroacher or the encroachment made by the person alone who would suffer a disqualification, it would lead to an absurdity. The concept of purposive interpretation would impel us to hold that when a person shares an encroached property by residing there and there is continuance, he/she has to be treated as disqualified. Such an interpretation subserves the real warrant of the provision. Thus analysed, we are of the view that the decision in Sagar Pandurang Dhundare (supra) does not lay down the correct position of law and it is, accordingly, overruled."

9] Of-course, this Court has followed said judgment in the matter of Shri

Shahaji Bajirao Jadhav, cited supra. However, once on facts, appellate

authority has noticed that Respondent No.1 is separate in mess from his

father Arun, in my opinion, it will be difficult to accept the contention of

Counsel for the Petitioner. In the matter of Janabai, cited supra though the

Apex Court has referred to the Division Bench Judgment in the matter of

Devidas Surwade vs. Commissioner, Amravati, reported in 2013(2) AIR

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Bom R 579, so as to interpret the word 'person' which includes legal heirs

and Arun, father of Respondent No.1 can rightly be said to be legal heir, this

Court is required to be sensitive to the further observations in para 29. The

Apex Court in the said judgment in para 29 has observed that if a person