2012 Supreme(Bom) 2116

High Court of Judicature at Bombay
S.C. DHARMADHIKARI, J.
Santosh Maruti Walanj
Versus
Manoj Sadashiv Jadhav
WRIT PETITION NO. 4490 OF 2012
Decided on : 05-11-2012

Headnote:Bombay Village Panchayats Act, 1958 - Sections 14, 15 and 16 - Disqualification for election.

       Disqualification of petitioner to continue as member upon election, on ground of encroachment on Government land justified.

       Bombay Village Panchayats Act, 1958 - Sections 14, 15 and 16 - Disqualification for election.

       Since concurrent finding of Collector and Commissioner that petitioner encroached on Government land, is based on report hence such factual findings cannot be reappreciated in writ jurisdiction. - The finding of the Collector relying upon the above report is that the construction made has been assessed in the name of the petitioner. The construction has not been regularized, and therefore, the petitioner’s act disqualifies him and disables him from continuing as a member of the Gram Panchayat. The Commissioner, while concurring with this finding, has relied upon the report. The report of the Tahsildar is that this construction is on Survey No. 148/1; the land is shown as Gurcharan and belongs to the Revenue Department. It has a construction admeasure 20 x 30 feet and cattle was found tied there. However, this is a construction made without any permission and authority and assessed as a house property in the Gram Panchayat record from the year 2000. In such circumstances, to now hold that this construction cannot be said to be encroachment is impermissible. In writ jurisdiction, it is not possible to reassess and reappreciate the factual findings on record. Once the findings are consistent with the material placed and cannot be said to be perverse, then, the intervention in writ jurisdiction is impermissible.

       The Collector and Commissioner have both found that the construction has been made by the petitioner. At page 20 and 21 of the paper book is a finding of the Collector that the construction has been made on Government Gurcharan land and it is of residential and commercial nature. In these circumstances, when such is the finding of fact, based on the material placed on record, then, it cannot be said that the impugned orders are vitiated by any errors of law apparent on the face of record or perversity warranting interference in the writ jurisdiction. Once the above conclusion is reached and only two grounds on which the orders under challenge are questioned, then there is no alternative but to dismiss this petition.

       Bombay Village Panchayats Act, 1958 - Sections 14, 15 and 16 - Constitution of India, Articles 226, 227, 243-N, 243-O and 243-F - Election.

       When question can arise in case of elected or appointed members, then there is no inconsistency between Section 16(1)(a) of Act and Article 243-O of Constitution. - The ambit and scope of the Section 16 of the Act and the nature of the proceedings are peculiar. There is power to question the validity of election and determination of dispute in relation thereto and that is a forum which has been made available by Section 15.

       There is a provision by which disability to continue as a member upon election is taken care of and that is an aspect dealt with by Section 16. Section 16 is therefore on the statute book because it is not pertaining to validity of election as understood in Section 15. It is a provision which enables the question of vacancy caused by disability to continue as a member to be decided.

       The disability to continue might arise on the basis of disqualification incurred subsequent to election or person who might be disqualified for being elected has been elected but his continuance is put in issue. Therefore, the words ’disqualification’ and ’disability’ both have been used by the State Legislature and with some specific object and purpose. The disqualification disables a person to continue. Disability also arises if a legal right is impaired or sought to be curtailed and that in this case is to continue as a member of the Gram Panchayat. No conflict would arise because the State Legislature does not repeal or do away with Section 16(1)(a). Section 16 therefore covering a broad field and enabling a very wide question to be agitated and raised, that does not mean that by virtue of Article 243-N, the same is inconsistent and therefore stands repealed automatically. There is no inconsistency. Even in the Constitution of India itself one may note several Articles by which upon election as a member of the Lok Sabha/Parliament or Council of States, a question of person’s disqualification can be raised and the President of India has been empowered and equally the Governor of the State to take note of such issues and have them decided (See Article 102 and Article 191 of the Constitution of India).

       Therefore, there being no inconsistency, Section 16(1)(a) does not stand repealed being inconsistent with Article 243-N of the Constitution of India. There cannot be any inconsistency with Article 243-O because this is not a case of only a person’s election being questioned but what is being questioned is his disability to continue on the footing he was disqualified for being elected.

       An issue of validity of elections in terms of the earlier provision can be raised by any candidate at such election or by an person qualified to vote at the election to which such question refers whereas the question of vacancy caused by the disability of a member to continue can be raised by the Collector suo moto or on an application made to him by any person. Therefore and when the question can arise in base of elected or appointed members, then, here is no inconsistency between Section 16(1)(a) and Article 243-O of the Constitution of India.

       Bombay Village Panchayats Act, 1958 - Sections 14, 15 and 16 - Maharashtra Land Revenue Code, 1966, Sections 2(10) and 122 - Disqualification for election.

       Encroachment on Government land, disqualifies person from continuing as member upon election. - Section 122 of Maharashtra Land Revenue Code provides for limits of sites of villages, towns and cities and how they are to be fixed. That land is designated as Gaothan an d therefore it is within village limits, cannot be of any assistance to petitioner. Gaothan or village site has been defined only for purposes of showing that these are sites and lands within limits of village. Thus there is nothing in Maharashtra Land Revenue Code or any other law which states that such village site or land within village limit cannot be earmarked for grazing cattle. If it is earmarked for grazing cattle and report of Tahsildar says that it is Gurcharan land, then it is definitely covered by concept of public property.

       It is too late in day to contend that making construction on such land will not amount to encroachment. Contention of petitioner that he has made permanent construction of bricks and cement but that is used as cattle shed and therefore there is no encroachment on land; Thus first argument and this plea cannot go together.

       Petitioner claims to have made is permanent construction with bricks, stones and cement and that too without permission, and which is unauthorised and illegal terming it to be encroachment, then he may claim to have used it as cattle shed but it is construction on Gairan land and by entering upon and encroaching it. Construction is not authorised. Construction is covered by Section 14(1)(j-3).