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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
R.K. DESHPANDE, J.
Sandip Ganpatrao Bhadade - Petitioner
Versus
The Additional Commissioner, Amravati Division, Amravati and Ors. - Respondents
WRIT PETITION NO.431 OF 2016 AND WRIT PETITION NO.514 OF 2016
Decided On : 17-10-2016
The encroachment contemplated is by a person, who proposes to become a member of a Panchayat and the person, who has become a member of a Panchayat. It covers an act of encroachment committed by such person before becoming a member as well as after becoming a member.
Maharashtra Village Panchayats Act, 1958 - Section 14(1)(j-3)-Disqualification of a Member.-As soon as a member or proposed member of a Panchayat joins an act of encroachment upon Government land or public property, disqualification under Section 14(1)(j-3) attracted.
The provision of Section 14(1)(j-3) of the Maharashtra Village Panchayats Act is attracted even in a case where a member of a Panchayat resides in the property or any portion thereof, which is an encroachment upon the Government land or public property.
The question as to whether any other person or a member of a family has already made an encroachment, loses its significance and as soon as a member or proposed member joins such act, he cannot escape from the clutches of disqualification under Section 14(1)(j-3) of the said Act.
Maharashtra Village Panchayats Act, 1958 - Section 14(1)(j-3)-Object of.-Encroachers upon Government land or public property prohibited by Section 14(1)(j- 3) of Act to get elected or continue as a member of Panchayat.
The very object of introducing the provision of disqualification under Section 14(1)(j-3) of the said Act is to avoid the conflict of interest by prohibiting the persons, who are the encroachers upon the Government land or public property to get elected or continued as a member of the Panchayat, which is a democratically elected body of the villagers. It is beyond comprehension to assume that a person under statutory obligation or a duty to protect the Government land or public property from encroachment, commits an act of such encroachment. To permit a person, who proposes to become a member or becomes a member of the Panchayat to be the encroacher upon the Government land or public property, would be anathamatic, acting in breach of statutory duty, exposing himself to prosecution under sub - Sections (1) and (4) of Section 53, resulting ultimately in losing the protection under Section 180 read with Section 184 of the said Act. It is in this context that the text of disqualification under Section 14(1)(j-3) of the said Act is required to be analyzed and interpreted.
Maharashtra Village Panchayats Act, 1958 - Sections 14(1)(j-3) and 53-Disqualification of member.-A member of Panchayat becoming liable to be removed or prosecuted under Section 53 of Act, attracts disqualification under Section 14(1)(j-3) of Act.
In view of the aforesaid meaning of the terminologies "to encroach", "encroach- ment", "encroacher" and "encroached", whoever resides in the property or any portion thereof, which is an encroachment upon the Government land or public property, can be said to have "encroached" upon it and becomes an "encroacher". Whether such an encroachment is jointly with others and/or individually, either at one time or at different times remains hardly of any significance as he becomes liable to be removed and prosecuted under Section 53 of the said Act. Whether a person has become liable to be removed and/or prosecuted under Section 53 of the said Act from the Government land or public property, becomes a real test of attracting disqualification under Section 14(1)(j-3) of the said Act. If the answer is in the affirmative, the disqualification is incurred.
Maharashtra Village Panchayats Act, 1958 - Section 184-Indian Penal Code, 1860, Section 21-Public servant.-A member of a village panchayat is deemed to be a "public servant` in terms of Section 21 of IPC.
In terms of the aforesaid provision, a member of Panchayat is deemed to be a public servant, as defined under Section 21 of the Indian Penal Code.
1. Heard the learned counsels appearing for the parties. Rule. Taken up for final disposal.
2. In both these matters, the petitioners were elected as a Member of a Panchayat in the election held on 22-4-2015. By common order dated 8-12-2015, both the petitioners were disqualified under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 (for short, “the said Act”), and the said order has been confirmed by the Additional Commissioner, Amravati Division, Amravati in an appeal preferred under Section 16(2) of the said Act.
3. The authorities below have held that petitioner Sandip Ganpatrao Bhadade in Writ Petition No.431 of 2016 is residing on the property admeasuring area 37.50 sq.mtrs. of Plot No.957 owned by Tukaram Karnaji Bhadade, which is an encroachment over the land owned by the Public Works Department. In respect of petitioner Sau. Sangita Vijay Choudhary in Writ Petition No. 514 of 2016, the finding is recorded that she is residing on Plot No. 77, which is the property owned by the Government, as shown in the city survey record, and the name of one Maroti Natthuji Choudhary, the father-in-law is shown as illegal occupant. Thus, the finding of both the authorities below in respect of the petitioners is that though the petitioners are neither owners of the property nor have themselves made an encroachment over the Government land or the public property, they are residing or occupying the property, which is an encroachment over the Government land.
4. The question involved in these matters is whether a member of a Panchayat occupying the property, which is an encroachment upon the Government land or public property, is liable to be disqualified under Section 14(1)(j-3) of the said Act.
5. In order to consider the aforesaid question, certain provisions of the Maharashtra Village Panchayats Act, 1959 need to be considered. Section 9 therein makes every Panchayat to be a corporate by its name having perpetual succession and common seal with a power to acquire and hold the property and can sue and be sued in its own name. Chapter III under the said Act deals with the administrative powers and duties of Panchayats, as are prescribed under Sections 45 to 54.
6. Section 53 under Chapter III deals with the obstructions and encroachments upon public streets and open sites. Sub-sections (1), (2), (2A), (3) and (4) being relevant, are reproduced below :
“53. Obstructions and encroachments upon public streets and open sites. - (1) Whoever, within the limits of the gaothan area of the village
(a) builds or sets up any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or structure or thing or any other encroachment or obstruction, or
(b) deposits, or causes to be placed or deposited, any box, bale, package or merchandise or any other thing, or
(c) without written permission given to the owner or occupier of a building by a Panchayats, puts up, so as to protect from an upper storey thereof, any verandah, balcony, room or other structure or thing.
In or over any public street or place, or in or over or upon any open drains, gutter, sewer or adueduct in such street or place, or contravenes any conditions subject to which any permission as aforesaid is given or the provisions of any byelaw made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall on conviction, be punished with fine, which may extend to fifty rupees, and with further fine which may extend to five rupees for every day on which such obstruction, deposit, projection, cultivation or unauthorised use continues after the date of first conviction for such offence.
(2) The Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any o
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