2019 Supreme(Bom) 510

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Ravindra V. Ghuge, J.
Savita Devidas Adhane - Appellant
Vs.
State of Maharashtra (Through Its Secretary, Rural Development Department, Mantralaya, Mumbai) - Respondent
Writ Petition No. 11259 of 2018
Decided On : 10-04-2019

Headnote:

Maharashtra Village Panchayats Act - Section 14- 1(j-3),14,39,53 - Challenge – Petitioner who is disqualified as a Sarpanch of Village Panchayat, District Aurangabad seeks to challenge decision of District Collector Aurangabad by which, she has been disqualified as a Sarpanch under Section 14- 1(j-3) of Maharashtra Village Panchayats Act - Petitioner is also aggrieved by order of Additional Divisional Commissioner by which appeal preferred by Petitioner has been dismissed - Consequentially Petitioner is no longer Sarpanch and the charge is presently handed over to UpSarpanch -husband of Petitioner had been Chairman of the Society from 1977 till 2007 - of misuse of powers and position as a Sarpanch have been alleged by Respondent No.4 - District Collector has concluded that since Petitioners husband is Chairman of said Society and certain benefits have been extended to the said Society by way of allotment of government land which is treated to be an act of encroachment Petitioner has been disqualified - Whether conduct of petitioner would amount to an act of encroachment - Whether her acts amount to a disgraceful conduct or may indicate an interest or share in work done by order of Panchayat, are not issues before me - Whether forums below as well as High Court is justified in disqualifying Appellant for continuing as a member of he Gram Panchayat on ground that there has been encroachment upon the government land since 1981 by her father-in-law and husband and she is using said land - Whether Appellant incurs disqualification under Maharashtra Village Panchayat Act, 1958 (for short, the Act - 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 - 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 clutches of disqualification Under Section 14(1)(j-3) of said Act- Whether Sarpanch or her husband or their relatives have caused an encroachment on Government land – Held, Court may note here with profit that word person as used in Section 14 (1) (j-3) is not to be so narrowly construed as a consequence of which basic issue of "encroachment" in context of disqualification becomes absolutely redundant - Legislative intendment as Court perceive is that encroachment or unauthorized occupation has to viewed very strictly and Section 53therefore provides for imposition of daily fine - It is also to be borne in mind that it is Panchayat that has been conferred with power to remove encroachment - It is statutory obligation on the part of the Panchayat to protect interest of properties belonging to it - If a member remains in occupation of an encroached property he/she has a conflict of interest - If an interpretation is placed that it is first encroacher or the encroachment made by the person alone who would suffer a disqualification it would lead to an absurdity - Concept of purposive interpretation would impel us to hold that when a person shares an encroached property by residing there and there is continuance he/she has to be treated as disqualified - Such an interpretation sub serves real warrant of provision. Thus analysed Court are of view that decision in (supra) does not lay down correct position of law and it is accordingly overruled - Record placed before Court that in 1984 plot was allotted to Society by none other than Village Panchayat - Name of Society was entered in the form 8 - Property extract, in 2008 - Audit report indicates that the Society received funds from Department of Rural Development, Maharashtra State for construction of an office - Society had applied for mutation entries vide an application -Writ Petition allowed