Encroachment by a family member can lead to disqualification of an elected member under the Maharashtra Village Panchayat Act, emphasizing a broad interpretation of encroachment to prevent conflicts of interest.

JUDGMENT :

GAURI GODSE, J.

1. Heard. Rule. Rule made returnable forthwith.

2. Learned AGP waives service for respondent no. 2. Mr. Manoj Patil waives service for respondent no. 3, Mr. Chetan Patil waives service for respondent no. 4. Petition is taken up for final disposal by consent of the parties.

3. This petition filed under Article 227 of the Constitution of India takes an exception to the order dated 2nd August 2023 passed by the Additional Divisional Commissioner dismissing petitioner's appeal under section 16(2) of The Maharashtra Village Panchayat Act, 1958 (“the said Act”). The said appeal was filed by the petitioner challenging the order passed by the learned Collector under section 14(1) (j-3) read with section 16 of the said Act, disqualifying the petitioner on the ground of carrying out encroachment on government land.

4. Learned counsel for the petitioner submitted that the allegation made against the petitioner regarding encroachment is with regard to the construction carried out on Gram Panchayat property bearing no. 993. He submits that the allegation is that the encroachment is carried out by his father. The complaint refers to the allegation that the petitioner's father has carried out an encroachment on the government land and is carrying out business in the name of “Vishal Hair Dressers”. The said allegation is accepted by the authorities by ignoring the contentions raised by the petitioner that the petitioner is residing separately from his father, and hence, on the said ground, the petitioner could not have been disqualified. In support of his submissions, he relied upon a copy of a ration card issued on 8th November 2018. The said ration card indicates that it has been issued in the name of the petitioner, his wife and his two minor children. He relies upon the partition deed to indicate that he is residing separately from his father. The said partition deed is executed between his father, his brother and the petitioner. He relied upon the relevant paragraphs of the partition deed and submitted that the petitioner along with his family is residing in two rooms constructed on city survey no. 188. Hence, it is submitted that the issuance of a separation ration card and the partition deed indicates that he is residing separately from his father.

5. Apart from submitting that the petitioner is residing separately from his father, learned counsel for the petitioner submitted that the allegation regarding encroachment is not available as the encroachment made by his father has been regularised by accepting his application on 27th August 2019. In support of his submissions, he relied upon a payment receipt, which is annexed to the petition. According to him, the said receipt has been produced before the Additional Commissioner by Gram Vikas Adhikari of the village Panchayat, indicating that the encroachment on the government land has been regularised. He thus submitted that once the encroachment has been regularised, the ground of encroachment by the family member of the petitioner is not available.

6. With reference to the reasons recorded by the learned Collector, he submitted that the ground of disqualification is based only on encroachment made by his father on government property no. 993. Though there is a reference made to the voters list, showing the address of the petitioner as well as his father as house no. 8, he submits that the ration card issued separately in the name of the petitioner clearly indicates that he is residing separately from his father even before the date of election. The reference made by the learned Collector to an application made for the separate ration card on 6th February 2021 is misconceived, as according to the learned counsel for the petitioner, the said application was made for making an online entry based on separate ration card already issued on 8th November 2018. He thus submits that since the petitioner is residing separately from his father, he could not have been disqualifi