Abasaheb Anandrao Tambe vs Kunal Arun Bendbhar And Anr
2023 Latest Caselaw 4908 Bom

2023:BHC-AS:14637

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                  WRIT PETITION NO.9386 OF 2022

            Abasaheb Anandrao Tambe
            Age 38 yers, Occu - Agriculture,
            Residing at - Pimple Jagtap, Tal Shirur,
            Dist. - Pune 412208                               ...      Petitioner

                    versus

            1.      Kunal Arun Bendbhar,
                    Age 26 years, Occu. Agriculture,
                    Residing at - Pimple Jagtap,
                    Tal Shirur, Dist. Pune 412208

            2.      The District Collector,
                    at Pune, having office at
                    District Collector Office at Pune         ...    Respondents

            Mr. Sagar Joshi, for Petitioner.
            Mr. Sanjiv Sawant with Mr. Abhishek Deshmukh, Mr. Malhar Bageshwar, for
            Respondent No.1.
            Mrs. V.S.Nimbalkar, AGP for Respondent No.2.

                                    CORAM        :      N.J.JAMADAR, J.

                                    RESERVED ON : 20 APRIL 2023
                                    PRONOUNCED ON : 5 JUNE 2023

            JUDGMENT :

1. This Petition under Article 227 of the Constitution of India assails the

legality, propriety and correctness of the judgment and order dated 23 June 2022

passed by the Additional Divisional Commissioner, Pune Division, Pune in Appeal

No.VP/Pune-20/2021 under Section 16(2) of the Maharashtra Village Panchayats Act,

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1959 (the Act, 1959), whereby the appeal preferred by the Respondent No.1 herein

against the judgment and order dated 1 December 2021 in Dispute Application No.29

of 2021 passed by the District Collector, Pune, disqualifying the Respondent No.1

under Section 14(1) (j-3) of the Act, came to be allowed by setting aside the said order.

2. Shorn of unnecessary details, the background facts leading to this Appeal

can be stated as under :

2.1 The Petitioner is the applicant in Dispute Application No.29 of 2021. In

the month of January 2021, general elections to Village Panchayats including Village

Pimple - Jagtap, Tal. Shirur, Dist. Pune, were held. Respondent No.1 was elected as a

member of Panchayat from Ward No.2.

2.2 The Petitioner being the resident of Village Pimple-Jagtap and also a

voter at the said election, preferred Dispute Application No.29 of 2021 before the

District Collector, Pune - Respondent No.2, alleging that the Respondent No.1 had

incurred disqualification to be a member of the Village Panchayat under Section 14(1)

(j-3) of the Act, as the father of the Petitioner had committed encroachment over the

gairan land bearing Gat No.420 Hissa No.1 and erected an unauthorized construction

admeasuring 32 x 29 ft. The Respondent No.1 was in the occupation and enjoyment

of the encroached portion of the government land.

2.3 Respondent No.1 resisted the application. Respondent No.1, inter alia,

contended that the Respondent No.1 did not hold any property in Village Pimple -

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Jagtap. Nor committed any encroachment over any government land/public property.

Respondent No.1 has been residing separately from his father Arun Bendbhar since

the year 2015. Reliance was sought to be placed on a ration card in the name of Arun

Bendbhar, which shows that the Respondent No.1 is not a member of the former's

family, and the fact that the Respondent No.1 had obtained an independent gas

connection.

2.4 An effort was also made to question the factum of encroachment, on the

ground that the gairan land came to be allotted to the father of Respondent No.1 for

poultry farming pursuant to a Resolution in the meeting of the Village Panchayat dated

28 December 1989 as the father of the Respondent No.1 was then unemployed.

Questioning the motive of the Petitioner to file Dispute Application, the Respondent

No.1 had prayed for the rejection thereof.

2.5 The District Collector, Pune, after appraisal of the rival contentions, the

report submitted by the Circle Officer dated 5 June 2021, post physical inspection, and

the copy of the assessment list in respect of property No.1241, arrived at a conclusion

that the father of Respondent No.1 had committed an encroachment over the gairan

land bearing Gat No.420/1. Applying the ratio in the case of Janabai V/s. Additional

Commissioner and Ors.1 the District Collector returned a finding that the

Respondent No.1 incurred disqualification under Section 14(1)(j-3) of the Act.

1     (2018) 18 SCC 196

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2.6             Being aggrieved, the Respondent No.1 preferred an appeal under Section

16(2) of the Act, 1959. By the impugned order dated 23 June 2022, the Additional

Divisional Commissioner, Pune was persuaded to allow the Appeal holding that it

could not be established beyond doubt that the Respondent No.1 was residing together

with his father and continued to occupy the encroached property. The facts that on

16 November 2020, the name of the Respondent No.1 came to be deleted from the

ration card in the name of Arun Bendbhar. Respondent No.1 had obtained gas

connection 4 to 5 years prior to the elections; address of Respondent No.1 on the

Aadhar Card No.8060 8583 7437 was different than the allegedly encroached property

and the Assessment List No.770 did not show the name of Respondent No.1 as one of

the occupants, were cumulatively held to justify an inference that the Respondent

No.1 was entitled to benefit of doubt on the score that he was not in the occupation of

the encroached property. The Additional Divisional Commissioner was also of the

view that the land beneath the unauthorizedly constructed structure was allotted to

Arun Bendbhar under a Resolution passed by the Village Panchayat on 28 December

1989 to run a poultry farm and, therefore, the occupation of Arun Bendbhar cannot be

termed as encroachment. Holding thus, the Additional Divisional Commissioner set

aside the order of disqualification passed by the District Collector, Pune.

2.8 Being aggrieved, the Petitioner - Dispute Applicant, has invoked the writ

jurisdiction of this Court.

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3. I have heard Mr. Sagar Joshi, learned Counsel for the Petitioner, Mr.

Sanjiv Sawant, learned Counsel for Respondent No.1 and Mrs. Nimbalkar, learned

AGP for Respondent No.2 at some length. Learned Counsel for the parties took the

court through the pleadings and the documents on record, including the reasons

which weighed with the authorities below.

4. Mr. Joshi strenuously submitted that the Additional Divisional

Commissioner was not at all justified in interfering with the well-reasoned order

passed by the District Collector, Pune, explicitly keeping in view the legislative object

in prescribing the disqualification. The finding of fact arrived by the District Collector

that Arun Bendbhar, father of Respondent No.1, had committed encroachment over

the gairan land, being based on material on record, could not have been upturned by

ascribing wholly unsustainable reasons. Mr. Joshi submitted that none of the reasons

ascribed by the Additional Divisional Commissioner sustain a finding that the

Respondent No.1 had not incurred disqualification. In the process, according to Mr.

Joshi, the Additional Divisional Commissioner completely lost sight of the legislative

object in prescribing disqualification which has been expounded in a number of

judgments including the judgment of the Supreme Court in the case of Janabai

(supra). In the light of the legislative object, the provision warrants a purposive

interpretation which the Additional Divisional Commissioner failed to appreciate,

submitted Mr. Joshi.

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5. Per contra, Mr. Sawant stoutly supported the impugned order. It was

urged with tenacity that the fact that the Respondent No.1 had not been residing in the

allegedly encroached property since long is evidenced by documents of unimpeachable

character. According to Mr. Sawant, what is of material significance is continued

occupation of the encroached property. In the case at hand, even if the case of the

Petitioner is taken at par, yet it cannot be said that the Respondent No.1 occupies and

enjoys the encroached property and, thus, the Respondent No.1 cannot be visited with

the drastic action of disqualification, submitted Mr. Sawant. The Additional

Divisional Commissioner, according to Mr. Sawant, correctly appreciated the said fact

and such finding on facts is not amenable to interference in exercise of the writ

jurisdiction, urged Mr. Sawant.

6. To begin with, the legislative object in prescribing the disqualification, as

discernible from the provisions contained in Section 14(1)(j-3) and Section 53 of the

Act, 1959, deserves to be noted. Under Section 14(1)(j-3) of the Act, no person shall

be a member of a Panchayat or continue as such who has encroached upon the

government land or public property. The essence of disqualification is in

encroachment over the government land or public property. As a member of the

Village Panchayat, a person elected thereto is statutorily enjoined to perform duties

cast under the Act, 1959. One of the duties of the Village Panchayat is to remove the

obstruction and encroachment over the public streets, open sites or public property

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etc. Under Section 53 of the Act, elaborate provisions have been made for removal of

obstructions and encroachments over the public property. If the Panchayat fails to

take action, the Collector is empowered to take requisite action suo motu or on an

application in this behalf made to him.

7. The above object of prescribing disqualification for a person who

commits encroachment over the government land or public property is to obviate the

situation of conflict of duty and interest which surely occurs where a person who is

statutorily enjoined to take action under the provisions of the Act, 1959, himself

happens to be a privy to such an unauthorized act either directly or indirectly. The

scope of term 'person' appearing in Section 14(1) of the Act, 1959, is, thus, expanded

to include the legal representative or family member of the person whose qualification

to get elected or continue to be a member of the Village Panchayat on account of

alleged encroachment over the government land or public property is put in contest.

8. Keeping in view the aforesaid legislative object, reverting to the facts of

the case, it is necessary to first consider the factum of encroachment. A report of the

Circle Officer, Koregaon-Bhima, makes it abundantly clear that inspection of the

subject premises on 30 June 2021 revealed that the house of Arun Bendbhar, father of

Respondent No.1, was situated in gairan land bearing Gat No.420/1. The said

property was shown at Sr. No.1241 of the Assessment List (Form VIII) as a gairan

land. It was described as a RCC structure admeasuring 32 x 29 sq.ft. An

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endorsement is made in the assessment list to the effect that the encroachment and

unauthorized construction entry in the Assessment List was only for the purpose of

taxation.

9. In the face of the aforesaid record, it could not be controverted and no

endeavour, in fact, has seriously been made to controvert, that the house of Arun

Bendbhar is situated in a gairan land. A faint attempt was made, which found favour

with the Additional Divisional Commissioner that the gairan land was duly allotted to

Arun Bendbhar, who was then an unemployed person. This contention is required to

be stated to be repelled for reasons more than one. Firstly, on facts, it was found that

RCC structure admeasuring 32 x 29 sq.ft. has been constructed over the gairan land.

This dismantles the case that the gairan land was allotted for poultry farming.

Secondly, and more importantly, the Village Panchayat has no authority in law to allot

the gairan land. The Supreme Court has in the case of Jagpal Singh and Ors. V/s.

State of Punjab and Ors.2 held as under :

"23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal / unauthorized occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose, the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the governments. The said scheme should provide for the

2 (2011) 11 SCC 396

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speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

10. The Additional Divisional Commissioner, thus, recorded an erroneous

finding that since the gairan land was allotted to Arun Bendbhar pursuant to a

resolution passed in the meeting of the Village Panchayat on 28 December 1989,

erection of structure thereon did not constitute an encroachment. The Additional

Divisional Commissioner squarely lost sight of the legislative intent.

11. Once a finding of fact recorded by the District Collector that the father

of the Respondent No.1 had committed encroachment over the gairan land, was found

to be impeccable, the question that wrenches to the fore is whether the Respondent

No.1 entailed disqualification on that count. It seems that the District Collector

proceeded on the premise that since the Respondent No.1 was found to have

committed encroachment over the government land, in view of the decision of the

Supreme Court in the case of Janabai (supra), the Respondent No.1 must be visited

with the consequences that emanate from the said encroachment. The Additional

Divisional Commissioner differed, taking the view that the Respondent No.1 could

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show that the Respondent No.1 had been residing separately from Arun Bendbhar.

Whether this approach of the Additional Divisional Commissioner is justifiable ?

12. For exploring an answer, it may be apposite to note the provisions

contained in Section 53 of the Act, 1959. Sub-Section (1) of Section 53, inter alia,

prescribes penalty for building a structure, within the limits of gaothan area of the

village, in or over any public street or place, not being private property. Under sub-

Section (2), Village Panchayat shall have the power to remove any obstruction or

encroachment in any open site, not being private property, whether such site is vested

in the panchayat or not. However, if the site is vested in the government, the

permission of the collector or any officer authorized by him in this behalf shall have

first been obtained.

13. A conjoint reading of sub-sections (1) and (2) unmistakably underscores

the legislative object of proscribing the obstruction or encroachment in or over the

property which is not a private property. The manner in which the power to remove

the obstruction or encroachment is to be exercised by the Panchayat is, in a sense, a

matter of regulatory significance. The primary legislative intendment is to prevent

and remove the encroachment over public property. Thus, the expression "not being

private property" finds place both in sub-sections (1) and (2). This brings to the fore

the legislative intendment that the encroachment over the public property by a person

who is either elected or desires to be elected is not be tolerated. Thus, the essential

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distinction between the public property and private property.

14. In the case of Janabai (supra), a three Judge Bench of the Supreme

Court expounded the legislative object in prescribing the disqualification after

adverting to the relevant provisions of the Act, 1959 and the previous

pronouncements. Relevant observations in paragraphs 26 and 29 read as under :

"26........... Section 53 that occurs in Chapter III deals with obstruction and encroachment upon public streets and upon sites. It confers power on the Panchayat to remove such obstruction or encroachment or to remove any unauthorizedly cultivated grazing land or any other land. That apart, it also empowers the Panchayat to remove any unauthorized obstruction or encroachment of the like nature in or upon a site not being private property. The distinction has been made between private property and public property. It has also protected the property that vests with the Panchayat. If the Panchayat does not carry out its responsibility of removing the obstruction or encroachment after it has been brought to its notice in accordance with the procedure prescribed therein, the higher authorities, namely, the Collector and the Commissioner, have been conferred with the power to cause removal. There is a provision for imposition of fine for commission of offence.

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 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

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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 V/s. Keshav Aaba Patil and Ors. 3 does not lay down the correct position of law and it is, accordingly, overruled."

(emphasis supplied)

15. In the aforesaid case, the Supreme Court has enunciated the necessity of

resorting to the purposive interpretation so that the word 'person' is not constructed

in a constricted sense to include only the encroacher or the person who commits

encroachment for the first time. The Supreme Court adverted to the conflict of

interest which would arise if such a constricted meaning is given to the word 'person'

as an elected representative, in such a situation, such person would not be in a position

to discharge the duty by protecting the public properties.

16. Mr. Sawant would urge that there can be no quarrel with the proposition

that Section 14(1)(j-3) warrants a purposive interpretation. Nonetheless, according to

Mr. Sawant, the primary fact that the person should share the encroached property or

continue to occupy or derive the benefit of, the encroached property must first be

established. Strong reliance was placed on the observations of the Supreme Court in

paragraph 29 to the effect that "the concept of purposive interpretation would impel

3 AIR 2017 SC 5420

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us to hold that when a person shares the 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".

17. Mr. Sawant would urge that in the facts of the case at hand, there is

material to indicate that the Respondent No.1 had not at all shared the encroached

property. From this standpoint, according to Mr. Sawant, the Additional Divisional

Commissioner was within his rights in allowing the Appeal.

18. At this stage, it may be necessary to immediately notice the decision of

this Court in the case of Devidas s/o Matiramji Surwade V/s. Additional

Commissioner, Amaravati and Ors.4 which was expressly approved by the Supreme

Court in the case of Janabai (supra). The facts of Devidas (supra) have an element

of resemblance to the facts of the case at hand. In the said case, a submission was

sought to be canvassed on behalf of the Petitioner therein that the alleged

encroachment was by the father of the Petitioner and that too wayback in the year

1966, and, thus, the Petitioner therein could not have been visited with the

disqualification under Section 14(1)(j-1). Repelling the contention, this Court

enunciated the law as under :

"4. We have heard the learned Counsel for the Appellant. On the facts described by the learned Counsel for the appellant, we find that the State Legislature while enacting the said provision fully accepted the Statement of Objects and Reasons in respect of the said particular provision

4 2017 (1) Mh.L.J. 102

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regarding encroachment on the government properties. The Statement of Object and Reasons states that the person, who has encroached on the Government property, shall not only be disqualified to be a member of Gram Panchayat, but also the disqualification shall be attached to such person till his tenure. In other words, on such disqualification the member can be disqualification and thus removed.

6. We find that there is a definite object in making the said amendment to the provisions of disqualification and the object is tht one, who encroaches upon the Government land or the Government property, cannot make any claim to represent the people by becoming an elected member of the Gram Panchayat. The term 'person' in the said amended provision has to be interpreted to mean the legal heirs of such person, who has encroached and continues to occupy the Government land or the Government property, his agent, assignee or transferee or as the case may be. If such an interpretation is not made in the said provision, the result would be absurd in the sense that the Government land would continue to remain encroached and the legal heirs or the assignees or the transferees remaining on such encroached Government land shall claim the right to get elected as a member of democractically elected body. In no case our conscious permits such type of interpretation to defeat the very object of the Bombay Village Panchayats (Amendment) Act, 2006."

19. This Court has, in terms, held that the term 'person' in Section 14(1)(j-

3) has to be interpreted to mean the legal heirs of such person who have encroached or

continued to occupy the government land or government property, his agent, assignee

or transferee, as the case may be. In this case, the endeavour on the part of

Respondent No.1 has been to show that he had not been in the enjoyment of the

encroached property. He has been residing separately from Arun Bendbhar, his father.

20. I am conscious that, in exercise of writ jurisdiction, an erroneous finding

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of fact is not amenable to correction. However, if the view taken by the authority

borders on perversity and in derogation of the object of the legislation, under which

the order is passed, the Court would be justified in interfering with the order passed by

the statutory authority.

21. It seems that the fact that the name of Respondent No.1 was deleted

from the ration card of Arun Bendbhar, influenced the decision of the Additional

Divisional Commissioner, Pune, substantially. The name of Respondent No.1

appeared to have been deleted on 16 December 2020, less than a month prior to the

elections to the Village Panchayat. The time lag is too short for comfort.

22. Conversely, no material was placed on record to show that the

Respondent No.1 had been residing separately from Arun Bendbhar and other family

members, in another household. Reliance on the address furnished in the Aadhar card

to show that the Respondent No.1 was residing with one of his relatives namely Mr.

Dilip Bendbhar appears to be too fragile a material to bear the weight of the finding

that the Respondent No.1 was residing separately from his parents and siblings.

Likewise, the fact that the Respondent No.1 had obtained a separate cooking gas

connection is not of determinative significance as it does not sustain a finding that the

said connection was obtained in respect of a premises distinct from the house

premises of Arun Bendbhar.

23. Where the disqualification is alleged on the ground of encroachment

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over the government land and the said fact is fairly established, the authorities cannot

be oblivious to the devices which may be adopted to wriggle out of the situation by

placing reliance on documents to show that the person concerned has not been

residing in the encroached property. In the absence of cogent material and

documents of impeccable character, it would be hazardous to draw an inference of

separate residence and mess. In such a situation the primary onus would lay on the

person who desires to prove disruption in the apparent state of affairs. In the case at

hand, apart from the fact that the Respondent No.1 was shown in the ration card as a

member of the family of which Arun Bendbhar was the head till less than a month

prior to the elections, the name of Respondent No.1 was included in the voter's list

along with his family members at House No.231. Thus, there was material to show

that a state of affairs continued to exist upto the date of election, and, in any event, a

couple of weeks prior to the election.

24. Viewed through this prism, the documents pressed into service on behalf

of the Respondent No.1 do not adequately establish that the Respondent No.1 had

been residing separately from Arun Bendbhar. The Additional Divisional

Commissioner was, therefore, in error in recording such a finding.

25. In any event, the element of conflict of duty and interest persists. The

endeavour on the part of the Respondent No.1 to contest the factum of encroachment

by his father, further renders the position of Respondent No.1 as a member of the

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Village Panchayat tenuous. Such a stand manifests the practical application of the

utility of providing disqualification under Section 14(1)(j-3) of the Act, 1959.

26. In my view, a person who is alleged to have incurred disqualification on

account of encroachment over the government land or public property cannot

successfully wriggle out of the situation by asserting that he has no concern with the

encroachment by his family members or legal representatives, in all conceivable cases.

Such an interpretation would give a long leash to the persons who either continue the

encroachment indirectly or condone encroachment by the immediate family members

and would defeat the avowed object of the legislature in prescribing disqualification on

that count.

27. The upshot of aforesaid consideration is that the Additional Divisional

Commissioner, Pune committed an error in interfering with the order passed by the

District Collector, Pune, disqualifying the Respondent No.1 under Section 14(1)(j-3)

of the Act, 1959. The Petition, therefore, deserves to be allowed.

28. Hence, the following order :

ORDER

(i) The Writ Petition stands allowed.

(ii) The impugned order dated 23 June 2022 passed by the Additional

Divisional Commissioner, Pune Division, Pune, stands quashed and set aside and the

order dated 1 December 2021 passed by the District Collector, Pune, in Dispute

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Application No.29 of 2021 declaring that the Respondent No.1 had incurred

disqualification under Section 14(1)(j-3) of the Act, 1959 stands restored.

(iii) Rule made absolute in the aforesaid terms.

                (iv)    No costs.




                                                                  ( N.J.JAMADAR, J. )

29. At this stage, Mr. Deshmukh, learned Counsel for Residing No.1 seeks stay

to the execution and operation of this order.

30. Since the Appellate Authority had decided in favour of the Respondent No.1

and the said order is set aside by this order, the prayer seeking stay of this order seems

reasonable.

31. The execution, operation and implementation of this order is stayed for a

period of four weeks.

                                                                  ( N.J.JAMADAR, J. )




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