The continued encroachment by the disqualified person is crucial for attracting disqualification under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act.

1. Heard learned counsel for the parties.

2. RULE. Rule made returnable forthwith. Taken up for hearing by consent of the parties.

3. The subject matter of the present petition is an order passed by Additional Collector, Buldana disqualifying the petitioner as Sarpanch and Member of Gram panchayat, Nagpur under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958(“Act”). The disqualification was on a complaint made by respondent Nos. 3 and 4 herein. The complaint was that the son of the petitioner, Ganesh @ Omshiv Laxman Junghare, had encroached upon the government land being Survey No.131 and illegally set up a shop by the name of Shivshakti Offset Printers for screen printing work. The Additional Collector by his impugned order dated 16th August, 2016 held that the petitioner's son had encroached on government land and accordingly disqualified the petitioner under Section 14(1)(j-3) of the Act. On an appeal filed by the petitioner, the Additional Commissioner, Amravati Division, Amravati by his impugned order dated 6th January, 2017 dismissed the appeal and confirmed the order of the Additional Collector, Buldana. The Additional Commissioner while dismissing the appeal and affirming the order of the Additional Collector relied on the decision of this Court in the case of Devidas vs. Additional Commissioner, reported in 2017(1) Mh.L.J. 102.

4. In Devidas's case (supra) a Division Bench of this Court held that the term “person” used in Section 14(1)(j-3) of the Act ought to be interpreted to mean even legal representative of such person who has encroached and continues to occupy the Government land or the Government property and also his agent, assignee or transferee as the case may be. That was a case where a house was constructed by the petitioner's father on a Government land. It was argued before the Court that the encroachment was by the petitioner's father and was way back in the year 1966. It was, however, not disputed before the Court that after the death of his father the petitioner was residing in the same house. It is in this context that our Court considered the meaning of the word 'person' used in Section 14(1)(j-3) of the Act. The Court noted that whilst enacting the particular disqualification, the object of the lawmakers was to prevent anyone who encroaches upon government land/ property from making any claim to represent people by becoming a member of Gram Panchayat. Considering the object of the amendment, if the term 'person' were not interpreted to mean the legal representative of such a person who has encroached and continues to occupy the government land/ property, it would lead to an absurd result in the sense that government land would continue to be encroached with the legal representative or assignee, transferee, as the case may be, remaining on such encroached government land and yet claiming the right to be elected as a member of a democratically elected body. Our Court was of the view that such a result was incomprehensible and would defeat the very object of the amended provision.

5. The facts of the present case are clearly distinguishable from the facts in the case of Devidas Surwade(supra). In our case, the encroachment is admittedly by an adult son of the petitioner. It is not anyone's case that the petitioner herself is occupying the encroached property either as a member of the son's family or otherwise. The facts of our case are really governed by the law laid down in the case of Kanchan vs. Mahadev, reported in 2013(1) Mh.L.J. 455 by a learned single Judge of this Court. In Kanchan's case, the complaint against the member of the Gram Panchayat was that she was married to one Shivaji Atigre, who claimed through a common ancestor, Bapu Atigre. Bapu Atigre was having two sons, Shivaji and Pandurang, and it was Bapu who had encroached on the government land notified as 'gairaan land'. The Court held that what the legislature had provided was a disqualification of the electe