Bombay High Court
Sunil S/O. Chaitramji Kamdi vs Additional Commissioner, Nagpur ... on 1 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:16670
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6517/2023
5
PETITIONER Sunil S/o Chaitramji Kamdi
Aged 33 years, Occu. Business, R/o Ward
No.2, at and Post Kelwad, Tahsil - Saoner,
Dist. Nagpur
...VERSUS...
RESPONDENTS 1. Additional Commissioner, Nagpur
Division, Nagpur Office at Old
Secretariat, Civil Lines, Opp. GPO,
Nagpur - 440 001.
2. Additional Collector, Nagpur Division,
Nagpur Office at Civil Lines, Nagpur.
3. Smt. Geetanjali w/o Prashant Wankhede,
Aged about 38 years, Occu. Housewife,
R/o Ward No.5, at and Post Kelwad,
Tahsil-Saoner, District - Nagpur, Presently
In Charge Sarpanch.
4. Gram Panchayat, Kelwad through its
Secretary, Office at and Post Kelwad,
Tahsil Saoner, District - Nagpur.
Mr. F.T. Mirza, Advocate with Mr. N.L. Jaiswal, Advocate for petitioner
Mr. Harshwardhan Dhumale, AGP for respondent nos.1 and 2
Mr. Aniket Waghdhare, Advocate for respondent no.3
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 03/11/2023 10
Date of pronouncing the judgment : 01/12/2023
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2
JUDGMENT
1. Heard Mr. Firdos Mirza, learned counsel for the
petitioner; Mr. Harshwardhan Dhumale, learned Assistant
Government Pleader for the respondent nos.1 and 2 and Mr. 5
Aniket Waghdhare, learned counsel for the respondent no.3.
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned counsel for the rival parties.
2. The petition questions the order dated 14/07/2023, 10
passed by the Additional Collector, Nagpur/Respondent no.2,
(pg.130), whereby the complaint filed by the respondent no.3,
against the petitioner, who is the elected Sarpanch of Gram
Panchayat, Kelvad, Tah: Saoner, seeking his disqualification
under Section 14(1)(j-3) and 16 of the Maharashtra Village 15
Panchayats Act ("MVP Act", hereinafter for short) and his family
members having committed encroachment on Government land,
has been allowed and the petitioner was disqualified and so also
the order dated 01/08/2023 (pg.180) passed by the Divisional
Commissioner, Nagpur/ Respondent no.1, in appeal, dismissing 20
the appeal.
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3. On 13/10/2023, the following position was
recorded :
"1. Heard.
2. The petitioner who was elected as Sarpanch has been
disqualified under Section 14 (1)(j-3) of the Maharashtra 5
Village Panchayats Act, 1959, on the ground that his father
has made an encroachment on Survey No. 1 which is forest
land which is to the extent of 2000 sq.ft. for which reliance
is placed upon the affidavit dated 29.05.2017 of the father
of the petitioner Chaitram Dhondbaji Kamdi (page 203); 10
the resolution by the Gram Panchayat (page 206) and the
tax receipt at (page 202). Further reliance is placed upon
the statement of one Janrao Shrawan Khonde (page 82) to
contend that the encroachment was removed a month
3. The forest department has made a statement, that there
is no encroachment of the land of Survey No.1. The
affidavit dated 29.05.2017 which is relied upon does not
mention Survey No. 1 but only indicates an area of 2000
slum/zhopadpatti. From the affidavit, it is difficult to
correlate this land of 2000 sq.ft. as being a part and parcel
of the land of Survey No. 1. It would equally be a position
that if the land of Survey No.1 is a forest land, the Gram
Panchayat would have no jurisdiction upon the same, and 25
therefore, cannot impose any tax on any construction
erected thereupon. The very fact that the Gram Panchayat
has imposed a tax would indicate that this property is in
ward No.2. It therefore appears, that though it is
contended, that this land belongs to forest land and is 30
encroached by the father of the petitioner, in view of the
above position no co-relation has been established on
record. Though the statement of one Janrao Shrawan
Khonde is being relied upon, there are other statements of
the Forest Department Shri C.M. Kadve Range Forest 35
Officer (page 79); Shri Ganpati Tulshiram Sambhare (page
86) and Shri Kailash Mohanlal Gandhi (page 88) which
indicate that on the land which is indicated adjacent to
ward No. 2, there is no encroachment but a weekly bazar
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4. That apart, even the order of the Collector dated
14.07.2023 (page 144) records, that there was no
encroachment on the date of the inspection. Though a
finding is recorded that the construction thereupon was
demolished one month earlier, there is no material on 5
record to substantiate this position.
5. Mr. Waghdhare, learned counsel for the respondent No.3
submits, that there are two affidavits which were filed
before the Collector which may have bearing upon the
matter and he would like to place the same on record. 10
6. In order to afford an opportunity list the matter on
19.10.2023, by which time, the affidavits shall be filed on
record."
4. On 03/11/2023 Mr. Waghdhare, learned counsel for 15
the respondent no.3, argued as under :
Mr. Waghdhare, learned Counsel for respondent
no.3, invites my attention to affidavit of one Manoj Bhimraoji
Talekar dated 11/05/2023 and that of Ishwar Bhauraoji Pawade
of the same date (pg.221 to 224) and submits, that these 20
demonstrate the factum of encroachment by petitioner as well as
his father on the Government land which is claimed to have been
demolished on 13/03/2023 by use of JCB machine. He further
invites my attention to the enquiry report (pg.64) dated
12-13/07/2022, in which the father of the petitioner admits his 25
encroachment on the Government land in view of his answer to
query No.15, which according to him, demonstrates
encroachment. He further invites my attention to
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the voters' list (pg. 216) to point out, that the address of the
father of the petitioner at serial No.662 and that of the petitioner
at serial No.664 is the same i.e. House No.201-A and considering
that the voters' list is dated 01/01/2023, it is submitted, that
even that point of time the petitioner and his father are residing 5
in the same house. He further invites my attention to the
document at page 209, which also is at page 72, which has been
filed by the petitioner to indicate that he was residing separately
in House No.503, as against which it is submitted, that the reply
dated 23/05/2023 by the Coal-mines Workers Credit 10
Co-operative Society Limited, which is the dealer (pg.207)
indicates, that the change in address in the subscription voucher
(pg. 209 and 72) was effected at the behest of the petitioner on
18/05/2023. He further invites my attention to the application
for interim stay by the petitioner dated 19/05/2021 (pg. 211) in 15
which in para 1, it has been stated by the petitioner that he is
residing jointly with his mother, father and younger brother.
5. Learned Counsel further relies upon the self-
declaration filed by the petitioner on 02/12/2022 while filling in
the nomination form for the post of 'Sarpanch' to contend, that in 20
the said declaration a statement has been made that he is
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residing in his own house, as against which, it has now been
claimed that the petitioner is residing in rented premises.
Further inviting my attention to the agreement of tenancy dated
29/09/2022 (pg.66), it is contended that though the said
contemplates the tenancy of the petitioner in respect of one room 5
in House No.503 in Ward No.2, admeasuring 170 sq. ft., for the
duration 2018 to 17/09/2022, except for this document, there is
nothing else on record to indicate the actual tenancy.
6. That apart, it is also contended, that this document
was not filed with the nomination form nor was any statement 10
made in the self-declaration (pg.43) to indicate, that the
petitioner at the relevant time was residing in a rented premises.
Section 14(1)(j-3) (ii) of the MVP Act has been relied upon to
contend that in case the petitioner resided in house not owned by
him, a statement to that effect was required to be made in the 15
self-declaration and since the same is absent and self-declaration
on the other hand speaks of the petitioner residing in his own
house, the plea which is now being canvassed by the petitioner of
residing at rented premises, separate from his parents, is clearly
an afterthought and not demonstrated by the material on record. 20
He also contends, that ground 'H' (pg.17) in the petition, is in
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fact an attempt to cover up the admission which has come on
record regarding the joint residence of the petitioner along with
his parents, and on account of the father of the petitioner having
encroached on the Government land, which is demonstrable from
the Panchnama (pg.64), and the finding recorded by the 5
authorities below, is clearly justified.
7. He further contends, that the Ration Card placed on
record by the petitioner (pg. 61 to 63) does not assist the plea of
separate residence put forth by the petitioner as the same does
not contain any address at all. It is therefore submitted, that the 10
cumulative effect of all the above position would indicate
encroachment of the father of the petitioner on the Government
land, and the petitioner being a joint resident with his father had
clearly incurred disqualification as contemplated in Section 14(1)
8. Section 124 (1)(i) of the MVP Act is also relied upon
to indicate that the tax on building is leviable by the Gram
Panchayat within limits of the village, and since the father of the
petitioner had filed an affidavit on 29/05/2017 (pg.203), seeking
to levy tax upon the open space of 2000 sq.fts. adjacent to the 20
Zopadpatti/slum in Ward No.2, which he claims to be in his
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possession and accordingly tax was levied (page 202) on
28/11/2022, that according to learned counsel for respondent
No.3 firmly establishes the factum of encroachment.
9. Mr. Waghdhare, learned counsel for the respondent
No.3, further places reliance upon Kusum Pralhad Tekawade Vs. 5
Sachin Sudhakar Tekawade and others, W.P. No.8807/2016 with
connected matter, decided on 05.08.2016 (para 7 to 9), Janabai
Vs. Additional Commissioner and others, (2018) 18 SCC 196
(para 29 and 30), Vitthal Narayan Kadam Vs. Ali Ahmad Bashir
Shaikh and others, W.P. 4277/2022, decided on 03.10.2023 by 10
learned Single Judge of this Court (para 23) and Anita and
others Vs. Additional Commissioner, Nagpur Division and others,
MANU/MH/2973/2021 (para 11 and 14), which has been
upheld by the Apex Court.
10. The learned Assistant Government Pleader supports 15
the impugned orders and points out Section 124 (xiv) of the MPV
Act, which permits the levy of a fee for temporary erection on, or
putting up projections over, or temporary occupation of, any
public street or place.
11. Mr. Mirza, learned counsel for the petitioner, in reply 20
submits that the claim of encroachment on the
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Government/public land needs to be specified. In the present
case, there are no boundaries specified on the land encroached,
the impugned order only says forest land. Insofar as the affidavit
(pg. 221), it is contended that Manoj Talekar is facing a Session
Trial, in which the petitioner is a witness against him, and 5
therefore, he is on inimical terms. The other person is belonging
to rival group. He also contends, that the voters' list cannot be
read in isolation (pg. 216). The landlord/petitioner is Vasant
Dhobale and Harsha Vasant Dhoble his wife, whose name
appears at Sr. No.661, is also shown as resident No.201-A. 10
Inviting my attention to the voters' list at page 36, it is also
contended, that Vasant Dhobale's name also shows the address as
201-A, and therefore, nothing can be made out of it.
12. Insofar as the documents relating to the gas
connection is concerned, the document at page 209 dated 15
18/05/2023, the signature of the consumer is absent, whereas
the document at page 72, the signature of both the dealer and
consumer is there. The Ration Card (page 61) dated 28/09/2018
also indicates that it is separate in the name of wife of the
petitioner and the names of the father and mother are not found 20
therein. Their names are included in page 62, which however is
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dated 06/01/2022. In relation to the inspection report (pg.64),
dated 12/07/2022, he points out that it contains the names of
only three persons the father, mother and brother of the
petitioner and nobody else, the document at page 211 is denied
as being forged and fabricated, to substantiate which it is 5
contended that Block Development Officer has no power to grant
stay.
13. Insofar as the judgments relied upon by the learned
counsel for the respondent No.3, it is contended that they are not
applicable as in those cases the encroachment continues, whereas 10
in the present case, no encroachment has been found.
14. Reliance has been placed upon Ravi Yashant Bhoir
Vs. District Collector, Raigad and others, (2012) 4 SCC 407
(paras 28 to 36) and Akshay Jitendra Raut Vs. Divisional
Commissioner and others, W.P. No.2734/2022, decided on 15
19.8.2022 (para 11).
15. The purpose of bringing Section 14(1)(j-3) of the
MVP Act on the Statute Book, was to avoid an apparent conflict
of interest between the personal interest of an elected member
and the duties as cast upon him by the nature of his office, in 20
light of the statutory provisions, as contained in Section 53 of the
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MVP Act, which enjoins the Gram Panchayat, of which he
becomes a part, on account of his election, to remove
obstructions and encroachments upon public streets and open
sites. An elected member of the Gram Panchayat, was therefore,
not only duty bound to ensure that at the time of filling his 5
nomination, not only he was not an encroacher, but the members
of his family, were also not so.
16. The word 'encroach', by its very definition means
unauthorised entry in someone else's property, whosoever it may
belong to. The nature of the property, may also vary. It could be 10
immoveable property or even intellectual rights which someone
may have. In the context of Section 14(1)(j-3) of the MVP Act, it
has necessarily to mean immoveable property, of someone else.
17. In light of the above position, two things will have to
be considered. First : whether the petitioner or any of his family 15
member was/is an encroacher and Second : if the family member
of the petitioner was/is an encroacher, whether he/she was/is
residing with the petitioner.
18. Insofar as the question as to whether there is any
encroachment by the petitioner or any of his family member, an 20
admission would be the best piece of evidence to demonstrate
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this. In this context the affidavit of the father of the petitioner
dated 29/05/2017 (pg.203), assumes significance. A perusal of
this afidavit, indicates that it is an admission by Shri Chaitram
Dhondbaji Kamdi, father of the petitioner of being in possession
of an area admeasuring 40 x 50 = 2000 sq. ft. of land, in Ward 5
No.2, of Mouza: Kelvad, adjacent to the Zopadpatti, since the last
30 years, on a part of which he had constructed a shed for
keeping domesticated animals, which affidavit was submitted to
the Gram Panchayat, Kelvad, for the purpose of assessing the
Shed, to tax. Though it is contended that this is a fraudulent 10
document, what is material to note is that on the basis of this
affidavit, the Gram Panchayat, Kelvad, had in fact passed a
resolution for assessing tax (pg.206), and had in fact assessed tax
by giving the Shed a House No.2156, which has been paid by the
father of the petitioner as is indicated from the tax receipt dated 15
28/11/2022 (pg.202). The payment of this tax, which was for
the duration 1984 to 2017, has not been denied by the petitioner.
There is also nothing on record that this encroachment has
subsequently been voluntarily removed by the petitioner or his
father, before the petitioner filed his nomination for the post of 20
Sarpanch in December 2022, as that would be the relevant date
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for determining whether the petitioner, stood disqualified on
account of the mandate of Section 14(1)(j-3) of the MVP Act.
These documents therefore do not establish that on the date of
filing of the nomination of the petitioner for the post of
Sarpanch, which was to be done between 28/11/2022 to 5
02/12/2022, the encroachment was not there.
19. True it is that the statement of Mr. C.M. Kadve,
Range Forest Officer (pg.79) and the spot inspection report
(pg.75-77) which are being pressed in service, by Mr. Mirza,
learned counsel for the petitioner, indicate that there was no 10
encroachment on Gat No.1 admeasuring 0.11 HR, which is said
to be the same land, however, what is material to note is that this
statement of Mr. C. M. Kadve, as well as the spot inspection
report, both are dated 03/05/2023 and speak of an inspection
made on the same date in the afternoon and therefore would not 15
be of any assistance to the petitioner to contend that no
encroachment was ever made and was not existent, on the date
of filing of the nomination by the petitioner, which was sometime
in between 28/11/2022 to 02/12/2022, as results were declared
on 20/12/2022, in which the petitioner was elected as a 20
Sarpanch of Gram Panchayat, Kelvad. The spot inspection report
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(pg.75) dated 03/05/2023, in fact, speaks that on the date of the
spot inspection, the records of the Gram Panchayat indicated tax
being assessed for House no.2156, for the year 2022-2023, also,
vide receipt no.920 (pg.202), which would in turn indicate that
the encroachment by the father of the petitioner had continued 5
for the assessment year 2022-2023.
20. In fact, the report of the Gram Adhikari, dated
12/07/2022, (pg.64) indicates that the father of the petitioner
was identified as a flood affected person, on account of a claim
being made that the wall of the shed was washed away due to 10
excessive rains and therefore the shed was partly damaged. The
report further contains a statement that the shed was on land
belonging to the Government and thus was an encroachment
(pg.65). The report is signed by the father of the petitioner, as
21. The respondent no.3, in his application under
Section 14(1)(j-3) of the MVP Act, had made a categorical
statement in para 5 thereof (pg.57) that the father of the
petitioner, had encroached upon forest land which was Zudpi
Jungle bearing Survey No.1, with specific reference to his 20
affidavit dated 29/05/2017 (pg.203) and that on account of the
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same tax was levied, which was also paid by the father of the
petitioner on 28/11/2022 to the Gram Panchayat. Yet a look at
the affidavit in response of the petitioner dated 30/6/2023
(pg.114) indicates that except of a plain denial, nothing else has
been mentioned and no explanation is forthcoming as regards the 5
affidavit dated 29/05/2017 or the payment of tax on
28/11/2022 by the father of the petitioner.
22. This being the position, since the factum of
encroachment as indicated above being an admitted one, till the
end of November 2022 (the tax receipt at page 202 dated 10
28/11/2022), and the nominations were to be filled in between
28/11/2022 to 02/12/2022, it was the duty of the petitioner to
bring on record the exact date of demolition of the shed and the
removal of encroachment, which has not been so brought on
record by the petitioner. It is also necessary to note that neither 15
the receipt of payment of Rs.500/- for the nomination form by
the petitioner (pg.48) nor the affidavit filed alongwith the
nomination form (pg.49 to 54) bear any date whatsoever, to
ascertain on which date the same were filed. Even presuming
that the petitioner had filed his nomination on the last day i.e. on 20
02/12/2022, there is nothing on record to indicate, that the shed
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was demolished or the area admeasuring 2000 sq. ft. encroached
by his father was vacated and surrendered to the Authority to
whom it belonged, by that date, considering that the tax for the
encroachment was paid on 28/11/2022 (pg.202).
23. Since the election was held in December 2022, this 5
was more the necessary for the petitioner, if he wanted to avoid
the disqualification under Section 14(1)(j-3) of the MVP Act.
True it is that an elected representative ought not to be unseated,
on a mere allegation, however, in the present matter, the position
of encroachment on behalf of the father of the petitioner, being 10
an admitted one, the burden lays at the doorstep of the petitioner
to demonstrate that the same was not there on the date of filing
of his nomination, which considering the fact position as availing
on record has not been discharged. The order dated 13/10/2023,
recorded a prima facie position, which on an assessment of the 15
factual position, has turned out to be what has been stated
above.
24. That takes me to the contention that the petitioner
was not residing with his father on the date of filing of the
nomination. Mr. Waghdhare, learned counsel for the respondent 20
no.3, has laid great stress on the requirement of Section 14(1)
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(j-5) of the MVP Act, which for the sake of ready reference is
enumerated as under:
"14 (1)----
(j-5) fails to submit a certificate of the concerned
panchayat, alongwith the resolution of the Gram Sabha 5
certifying that,--
(i) he resides in a house owned by him and has a toilet in
such house and he regularly uses such toilet ; or
(ii) he resides in a house not owned by him and has a toilet
in such house and he regularly uses it or he has no such 10
toilet but regularly uses the public toilet :
provided -----"
That such a certificate which was submitted by the petitioner is 15
not in question for a copy of the same has been filed alongwith
the petition itself (pg.43). This certificate is dated 02/12/2022,
which would also indicate that the nomination was filed by the
petitioner on 02/12/2022, the last date of its filing. This
certificate which is a self-certificate, is duly signed by the 20
petitioner, himself and states that he has constructed a personal
toilet in his own house and he and his family are regularly using
it. This clearly belies the theory canvassed by the petitioner that
he was residing in a rented house on the date of his nomination.
A rent agreement has been filed by the petitioner dated 25
29/09/2022 (pg.66) in support of his contention that he was
residing in a tenanted premises. A perusal of this rent agreement
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indicates that the tenanted premises, is a single room,
admeasuring 170 sq. ft., in the South-East portion of House
No.503, in Ward No.2 at the monthly rent of Rs.700/- p.m.
Though it contains a statement that the petitioner was residing
there as a tenant since 2017 and the tenancy was being renewed, 5
not a single rent receipt has been filed by the petitioner, to
substantiate this position. The rent agreement does not indicate
that a toilet is attached to the room which has been let out,
rather it specifies that what has been let out is a single room only.
Had there been any credibility in the rent agreement, the 10
petitioner in his affidavit filed in pursuance to the requirement of
Section 14(1)(j-5) of the MVP Act, would have stated that he was
residing in a rented premises, specified the rented premises and
that there was a toilet in such house and that he was regularly
using the same. This however is not the position as the affidavit 15
dated 02/12/2022, spells out that the petitioner was residing in
his own house, which had a toilet which was being used by him
and his family members. Thus the affidavit dated 02/12/2022
which the petitioner has filed with his nomination form (pg.43),
is clearly contradictory to the rent agreement (pg.66) and 20
considering that the affidavit has been filed by the petitioner in
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compliance with the statutory requirement of Section 14(1)(j-5)
of the MVP Act, what has been stated in the affidavit would
prevail, for it has been given at the pain of being prosecuted for
an offence, in case it is found to be incorrect.
25. What is also material to note is that all the 5
certificates, which are required to be filed alongwith the
nomination form, simply say that the petitioner is a resident of
Ward No.2, Kelvad. They do not give any specific address for the
residence of the petitioner, which ought to have been there, as
the petitioner now, claims to be a tenant in House No.503, in 10
Ward no.2, under the tenancy agreement dated 29/09/2022
(pg.66). The affidavit in reply filed by the petitioner before the
Additional Collector (pg.114) also does not specify that the
petitioner is resident of one room in House no.503. Same is the
position with the appeal memo, which the petitioner has filed 15
with the Divisional Commissioner (pg.146). Though reliance has
been placed on the address given in the subscription voucher for
HP Gas (pg.209), to contend that it shows the petitioner as a
resident of House No.503, the same is dated 18/05/2023, and in
light of the communication dated 23/05/2023 (pg.207) by the 20
Coal-mines Workers Credit Co-operative Societies Limited, which
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is the dealer, stating that the address was changed on
18/05/2023 at the request of the petitioner, is a document, not
worthy of any credence. Same would be the position in respect of
the subscription voucher (pg.72) which does not even bear the
date at all. Thus, there are two subscription vouchers of the 5
petitioner having been provided with a gas connection, as
indicated above, both of which being contradictory to each other,
one dated 18/05/2023, but not signed by the petitioner
(pg.209), the other undated but signed by the petitioner (pg.72),
which are self-destructive of each other as they cannot co-exist 10
and therefore cannot be relied upon.
26. Same is the case with the ration cards, as though
they indicate of being separate for the petitioner, his wife and
daughter (pg.61) and for his father, mother and Anil (brother)
(pg.62), both of them do not bear any address at all. 15
27. All the inspection reports on record (pg.89 and 93)
indicate a position, consequent to the filing of the Application
under Section 14(1)(j-3) of the MVP Act and not on the date of
filing of the nomination by the petitioner.
28. The voters' list for Saoner Legislative Constituency 20
(pg.216), indicates that the petitioner as well as his father and
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mother, all are residents of House no.201-A. Since the petitioner
is claiming separate residence from his parents, the burden was
on the petitioner to establish this position, which considering the
above position, the petitioner has failed to establish.
29. Ravi Yashwant Bhoir (supra) holds that the removal 5
of an elected member can only be in exceptional circumstances
giving strict adherence to the statutory provisions and holding
enquiry, meeting the principles of natural justice and an
opportunity to defend himself, for the reason that removal of an
elected person casts stigma upon him and takes away his 10
valuable statutory right and not only the elected office bearer but
his constituency/electoral college is also deprived of
representation by the person of their choice. There cannot be any
quarrel with this proposition and therefore while determining
whether the elected representative has to be disqualified under 15
Section 14(1)(j-3) of the MVP Act, the adherence with the rules
of determination will have to be followed. Akshay Jitendra Raut
(supra) was a case in which it was noticed that the enquiry
conducted was a superficial enquiry and therefore could not be
relied upon. In the instant case, considering the admission of the 20
father of the petitioner, that he was occupying land admeasuring
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2000 sq. ft., which was forest land of Survey No.1, it was
necessary for the petitioner to demonstrate that it did not affect
his statutory right as an elected representative, to continue to
represent his constituency, and he did not incur any
disqualification, which the petitioner has failed to do, considering 5
which, Ravi Yashwant Bhoir (supra) or for that matter Akshay
Jitendra Raut (supra) do not come to the assistance of the
petitioner. Janabai (supra), in fact, lays down that the word
'person', is not to be so narrowly construed as a consequence of
which the basic issue of 'encroachment', in the context of 10
disqualification becomes absolutely redundant. Sagar Pandurang
Dhundare Vs. Keshav Aba Patil (2018) 1 SCC 340 which held that
it is the act of the elected member, himself, of encroachment
which invites disqualification, has been expressly overruled in
Janabai (supra) and while doing so, considering the mischief, 15
which was to be prevented, an act of encroachment by the
member of the family, which in the present case, as on the date of
nomination, by the father of the petitioner, is admitted to have
existed, would equally attract disqualification.
30. In light of the discussion above, I, do not see any 20
reason to interfere in the impugned orders. The writ petition is
WP 6517 of 2023.odt
therefore without any merits and is dismissed. Rule stands
discharged. No order as to costs.
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 01/12/2023 17:39:49
