2012 Supreme(Bom) 1774

High Court of Judicature at Bombay
S.C. DHARMADHIKARI
Dnyaneshwar M. Satav
Versus
Jalindhar Dgondiba Kharabi & Others
Writ Petition No.88 of 2012
Decided on: 18-09-2012

Headnote:Bombay Village Panchayat Act, 1958 - Section 14(1)(j-3) - Disqualification of member. - Held, concurrent findings as to encroachment on Government land by a member of Village Panchayat, warrants no interference is writ petition. The petitioner had full opportunity to demonstrate and prove that there is no encroachment of government land or public property. That the encroachment alleged is not by him but by somebody else. That the entries in the records of Gram Panchayat are not conclusive and justified as the construction is made by his father and uncle jointly but shown erroneously in his name in the records. Further, when he was confronted with a specific case based on records, that the structures on Survey Nos. 396, 595 and 694 have been put up by him, nothing prevented the petitioner from placing materials to the contrary. Having participated in the proceedings without any protest or demur, it is too late in the day to urge that the petitioner was denied a fair and adequate opportunity to defend himself or to rebut the allegations against him. All findings of fact which are not only based on the report but on the Gram Panchayat record s cannot be brushed aside on such a vague complaint and grievance of the petitioner in writ jurisdiction.

       Bombay Village Panchayat Act, 1958 - Sections 14(1)(j-3), 15 and 16 - Complaint under Section 16. - Held, in absence of any detailed enquiry at nomination stage, second objection by way of complaint under Section 16 of Act, can be raised. This is not a case of a parallel inquiry or proceeding. Nothing was pending on the date of filing the application under Section 16 much less a election petition by a third party. Equally, there is no material on record to conclude that any prior adjudication or scrutiny in the allegations of encroachment by the petitioner has been held in which the same allegations were made and same documents were relied on. Once there was no final and conclusive determination and adjudication, then, holding that the present proceedings were not maintainable, would be doing violence to the plain language of Section 16.

       In the case of Shrikrishna Wasudeo Dhage v. Shivcharan s/o Trimbakrao Kalne and others reported in 2010 (3) Mh LJ 281 : 2010 (2) All MR 554, held that the question whether the nomination paper of the petitioner before the single Judge can be rejected under Section 14(1)(j-3) cannot be gone into an election petition under Section 15. Election petition under Section 15 can question the validity of the elections. However, a careful reading of the judgment of the single Judge would reveal that the petitioner therein was regarded as an encroacher in 2007-2008 and she has tried to get the encroachment regularised. However, these events are after her election. The contention that was raised before the single Judge was that this encroachment, therefore, could have been used to challenge her election by filing election petition under Section 15 of the Act, was clearly misconceived. On that ground, the proceedings under Section 16 were questioned and it was urged that they were not maintainable.

       Bombay Village Panchayat Act, 1958 - Sections 14(1)(j-3) and 16 - Disqualification of member. - Held, existence of an encroachment made by a member of Village Panchayat, since long, cannot be a ground to reject complaint filed under Section 16 of Act. Section 16 of the Act comes after Section 15-A. It cannot be held that the Legislature was unaware that after the constitutional amendment under which Part IX and IX-A came to be introduced in the Constitution of India setting out inter alia a bar to interference by the Court in electoral matters that Section 16 will be resorted to or could be taken aid of. The legislature did not deem it fit to clarify anything but retain Section 16 in the same form and once it is so retained and with an obvious purpose, then, to brush aside the plain language of the same is impermissible. Section 16 deals with disability from continuing as a Member. That disability is on account of disqualifications which are mentioned in Section 14. That a person who is duly elected or appointed was subject to any of the disqualifications mentioned in Section 14 at the time of his election or appointment or such Member incurs the disqualification during the term for which he has been elected or appointed, are both matters which disable him from continuing and, therefore, covered by this section. His office shall become vacant the moment he is disqualified. The question whether any vacancy, has occurred under this section, if raised suo motu or on an application made by any person, has to be decided by the Collector. Therefore, it would not be possible for Court to ignore this section and its language, which is plain, unambiguous and clear. There is no scope for interpretation if this plain language is taken into consideration.

       Hence, it is clear that the encroachment is of 1995-96 and, therefore, cannot be taken note or cognizance of is an argument in desperation as it is not in public interest that a wrongdoer or law breaker derives any benefit or advantage of his illegal or wrongful act and continues as a elected representative of an unit of local self Government. That would be a wrong or bad precedent before the people.