IMPORTANT POINTS
After a Division Bench decision single Judges adopting a different approach without noticing the judgment is against judicial discipline.
When a person shares an encroached property by residing there and there is continuance, he/she has to be treated as disqualified.

JUDGMENT

Dipak Misra, CJI

The singular question that emanates for consideration in this appeal is whether the forums below as well as the High Court is justified in disqualifying the appellant for continuing as a member of the Gram Panchayat Kalamba (Mahali) on the ground that there has been encroachment upon the government land since 1981 by her father-in-law and husband and she is using the said land. There are concurrent findings of fact that the father-in-law and the husband of the appellant have encroached upon the government land and despite notice, they have not vacated the same on one pretext or the other. As far as these findings are concerned, we are not inclined to interfere with the same as we are of the considered opinion that it is based on apposite analysis of the materials on record.

2. The pivotal issue that we have to address is whether the appellant incurs disqualification under the Maharashtra Village Panchayat Act, 1958 (for short, ‘the Act‘). Section 14 of the Act deals with the said disqualification. The relevant part of Sections 14(1) and 14(1)(j-3) reads as under:-

“14. Disqualifications.- (1) No person shall be a member of a Panchayat continue as such, who-

(a) to (j-2) xxx xxx xxx

(j-3) has encroached upon the Government land or public property.”

3. The High Court, by the impugned order, has ruled:-

"The learned Additional Commissioner has independently examined the material on record and has found that Gram Panchayat had issued notice in 2012 to father-in-law of the petitioner to remove the encroachment. However, it was not complied with and then again Gram Panchayat had sent another communication asking for removal of encroachment to which Shri Kashiram Gaikwad-husband of the petitioner gave reply on 29th June, 2012, accepting that there was an encroachment and justified. The petitioner has not been able to point out any perversity in the findings of fact recorded by the subordinate authorities. I see no reason to interfere with the impugned order".

4. The order passed by the High Court is seriously criticised by the learned counsel for the appellant on two counts, namely, it is absolutely laconic and further, on a proper interpretation of the provisions, by no stretch of imagination, it can be concluded that the appellant, as a person, has encroached upon the government land or public property.

5. Learned counsel for the appellant has placed heavy reliance on a two-Judge Bench decision in Sagar Pandurang Dhundare v. Keshav Aaba Patil and others, (2018) 1 SCC 340. In the said case, there was no allegation that the appellants were encroachers, inasmuch as their father/grand father had encroached the property and they were only the beneficiaries of the encroachment and the beneficiary of an encroachment was treated as an encroacher by the authorities. The Division Bench of this Court referred to the decisions of the High Court of Bombay. We think it appropriate to refer to the same to appreciate the scenario in entirety.

6. In Ganesh Arun Chavan v. State of Maharashtra, 2012 SCC OnLine Bom 1393 decided on 24.09.2012, the petitioner therein had taken the stand that the encroachment was by his father and the house was constructed with the income of his father. The High Court, in the said factual matrix, held as follows:-

“10. There is nothing in the Act by which the concept of family or joint residence could be imported as far as the subject of disqualification is concerned. The said provision contemplates encroachment upon the Government land or public property by a person, as in this case, who is a Member of the Panchayat.

x x x x x

12. The Legislature has taken care and wherever the concept of family or joint residence has to be applied, specific provision in that behalf has been made either substantively or by way of an Explanation. For illustration, if the disqualification is under section 14(1)(h) for failure to pay any tax or fee due to the panchayat or the Zilla Parishad, then, by virtue of Explanation 2