Writ Petition No. 8722 of 2012

12th October, 2012

Petitioner Counsel: M. Adagule
Respondent Counsel: Mr. Shrikant Yadav, Ms. P.S. Cardozo

Cases Cited:
Ganesh Arun Chavan Vs. The State of Maharashtra & Ors., W.P. No.3942 of 2012, Dt.24/9/2012 [Para 15]

JUDGMENT

-Rule. This writ petition under Article 226 and Article 227 of the Constitution of India is directed against the order passed by the Additional Commissioner, Pune Division, Pune in Gram Panchayat Appeal/Kolhapur/185 of 2011.

2. That appeal was directed against the order passed by the Additional Collector, Kolhapur in dispute/complaint bearing No.8 of 2011 decided on 25th October 2011.

3. The Additional Commissioner, Pune Division, Pune while allowing the appeal has held that the petitioner is disqualified under section 14(1)(j-3) of the Bombay Village Panchayat Act, 1958 (for short "the Act"). This is a disqualification incurred on account of encroachment made upon government land or public property.

4. A complaint was made by the respondent No.1 that Gram Panchayat Padwalwadi is the Gram Panchayat in question. Its elections were notified and the complainant is a voter/elector for the said elections. That election was held on 27th June 2010. The petitioner contested the said election from Ward No.3 which was reserved for women (general). She was declared elected. Thereafter, the Gram Panchayat post of Sarpanch which was also reserved for this category was contested by the petitioner and she was elected unopposed.

5. The petitioner is disqualified because she is married to one Shivaji Atigre. He claims through a common ancestor Bapu Atigre who had two sons Shivaji and Pandurang. They are all residing together. Gat No.47 is a land belonging to government and is notified as "gairaan land". There is a structure constructed by encroaching on this land and which is assessed and numbered 264 in the Gram Panchayat record. It is stated that in the assessment record the name of the owner in relation to this land is Maharashtra government whereas occupants are Shri.Shivaji Atigre and Sou.Kanchan Shivaji Atigre (petitioner). The taxes in relation to this house (house tax) have been paid by the petitioner. She has colluded with the Gram Panchayat officials and has falsely entered the name of her brotherinlaw. In these circumstances, she is disqualified for being elected and for continuing as a Member of the Gram Panchayat. The petitioner, therefore, should be disqualified.

6. This application was filed on 4th February 2011 in which the petitioner filed a reply and denied each and every statement and allegation. She submitted that respondent No.1-complainant himself is a defaulter as he has not paid the taxes. Therefore, alleging that this is a vexatious and false complaint, she prayed for dismissal of the same.

7. After the parties filed a reply and documents relied upon, the matter was heard by the Additional Collector and has held that firstly, Property bearing No.264 has been inherited by the predecessors and family members of the petitioner. There was an encroachment thereon which was brought to the knowledge of the 1st respondent. That apart, it has been held that in so far as the assessment record shows that for the assessment year 2010-2011, the Property bearing No.264 was assessed in the name of Shivaji Bapu Atigre and the petitioner and their names were entered in the possession column whereas the name of Government of Maharashtra was shown in the ownership column. However, for the year 2010-2011 (latter part), the name in the possession column was changed to Pandurang Bapu Atigre. This change has occurred on account of Resolution passed by the Gram Panchayat.

8. Pertinently, he held that which family member of the petitioner has encroached upon government land, has not been clarified by production of the Encroachment Register by either Tahsildar or Gav Kamgar Talathi. However, there is a panchnama drawn by Circle Officer, Nigve, Talukar Karveer, which shows that this house property admeasuring 10 X 5 ft has a cement roof. It is a permanent cement construction and when this panchanama was prepared, Pandurang Atigre was present and his statement was recorded. He stated that this encroachment has been made by his father Bapu Atigre about 30 years back. Therefore, the Collector concluded that it is not clear as to who has encroached upon the government land. Even the Gram Panchayat appeared before him through Gram Sevak who did not make a clear statement as to who has encroached upon the government land. The petitioner has denied that she has any connection with the construction. In these circumstances, the Collector concluded that it is not proved that the petitioner has encroached upon the government land or public property.

9. The 1st respondent applied to the Commissioner who has reversed this finding by holding that the assessment record in relation to House property bearing No.264 showed the names of the petitioner and her husband. However, the Gram Panchayat passed Resolution on 13th May 2010 bearing No.15/3 by which the name of the petitioner and her husband was deleted and instead the name of her brother-in-law Pandurang Atigre was entered or inserted. The Commissioner has referred to all the prior assessment records and has found that this very property was earlier assessed at No.181 and was shown as government land. In the ownership column of this gairaan land, name of Government of Maharashtra is appearing whereas in the column of possession pertaining to possession, the name of Bapu Atigre, father-in-law of the petitioner has been shown. In such circumstances, it is the conclusion of the Additional Commissioner that throughout, the property card and the assessment record bear the name of the family of the petitioner and, therefore, even if the Additional Collector's finding is correct, yet, when the petitioner is residing jointly with Bapu Atigre (father-in-law), Pandurang Atigre (brother-in-law), then, together they have encroached upon government land and hence she is liable to be disqualified.

10. The learned counsel appearing for the petitioner has urged that the above conclusion of the Additional Commissioner is perverse and contrary to law. The finding of fact given by the Additional Collector should not have been interfered with by the Additional Commissioner in appeal because it was consistent with the documentary evidence produced on record. Such a conclusion cannot be reversed or interfered with merely because another view is possible. Therefore, the Additional Commissioner's order be set aside and the writ petition be allowed. The petitioner's advocate relied upon section 14(1) and the wording thereof to urge that it is the act of the person contesting the elections and elected, which alone, is relevant and not of anybody else other than him. Even if that third party is related to the person contesting or the Members that is of no consequence and relevance because it is the individual act which is brought within the ambit and not a collective one. For these reasons, the impugned order be set aside.

11. The 1st respondent's advocate on the other hand has supported this order by alleging that the legislature has intended to prevent those involved in and party to illegal and unlawful acts like encroachment. Therefore, the petitioner cannot escape or get away by urging that she has not encroached upon the government land but somebodyelse from her family. If she has not done it, then, she cannot be disqualified, is nothing but an attempt to get out of the disqualification provision some how or the other. That should not be encouraged and, therefore, the writ petition be dismissed because there is a finding of fact that the encroachment is by the petitioner's family. For these reasons, the petition be dismissed.

12. With the assistance of the counsel appearing for the parties, I have perused the writ petition and the annexures thereto including the impugned orders. I have perused section 14(1)(j-3) and equally one judgment which has been relied upon by the advocate appearing for the respondent No.1.

13. In this case, what the legislature has provided is disqualification of the elected or appointed Member of Panchayat. Therefore, any person who is elected or appointed Member is subject to any of the disqualifications mentioned in section 14, at the time of his election or appointment or during the term for which he has been elected or appointed, incurs any of the disqualifications mentioned in section 14, he shall be disabled from continuing as a Member and his office shall become vacant. A bare perusal of section 14(1) read with section 16 would make it apparent that it is that person who is contesting the election or has been elected as a Member who should not have been subjected to any of the disqualifications mentioned in section 14 or incur any of them. Therefore, in this case, I will have to find out whether legislature further provides as to whether any act of the family member other than the person desiring to contest or get elected, has been included in the provision or not. An indication as to why legislature intends to act in this manner and it incorporates a specific provision with clear words, is available in section 14(1)(g) and section 14(1)(h), as Explanations 1, 1-A and Explanation-2 would demonstrate and clarify. Therefore, failure to pay any tax or fee by a member of undivided Hindu family or by person belonging to a group or unit, the members of which are by custom joint in estate or residence, shall be deemed to disqualify all members of such undivided Hindu family or as the case may be, all the members of such group or unit. That has not been provided in the case of encroachment. Therefore, it is the act of the person contesting the poll as a candidate or the act of elected member himself as the case may be, would disqualify them. It cannot be that somebody else commits an act of encroachment even if he is a Member of the same family but the consequences are visited on an elected representative or a person desiring to contest the election to Gram Panchayat. Even if such person is a Member of that family by marriage or otherwise, still, it will not be permissible to disqualify him or her as that would create a vacancy in the Gram Panchayat. It would not be possible to give broad based, wide and comprehensive representation of the public in a unit of local self-government. The Gram Panchayat is envisaged to be a unit of local self-government in terms of Part IX of the Constitution of India. Therefore, the provisions with regard to disqualification will have to be construed in a manner so as not to create a vacuum or make it impossible for the villagers to choose their representative and constitute a Gram Panchayat. That will then create difficulties and obstacles in constituting a Panchayat. If that is equally not intended by the Statute in question, then, by interpretative process, I cannot do so and import or insert something in the provision, which is not there. That would amount to legislation and which act a Court cannot perform or rather not permitted to perform. That is a function which has to be performed by the legislature alone and if there is any difficulty or lacuna in the legislation, it is for the legislature to step in and not for me to re-write the section or provision in question.

14. That is why consistently I have been taking a view that words "person", "member", "no member of the Panchayat", throw light and indicate that it is his act of encroachment upon a government land or public property, which will disqualify him or her. If a Member of a family indulges in or commits such wrongful or illegal act, the legislature does not punish all of them. If that was to be the end result, the legislature would have spoken so in clear and specific terms. That having not been done, it will not be possible to uphold the order of the Additional Commissioner.

15. In this behalf, useful reference can be made to the view taken by me in the case of Ganesh Arun Chavan vs. The State of Maharashtra & Ors (Writ Petition No.3942 of 2012) decided on 24th September 2012, wherein I have observed as under:

"........ This is not a case where the petitioner has committed any encroachment on Government Land or public property. The admitted factual position should not have been ignored that once the property belongs to the petitioner's father Arun Chavan and that the construction on the said property, if at all, it could be termed as Government land or public property, has been made not by the petitioner but by his father Arun Chavan, then on the plain reading of section 14(1)(j-3) the petitioner could not have been disqualified.

10] There is nothing in the Act by which the concept of family or joint residence could be imported as far as the subject disqualification is concerned. The said provision contemplates encroachment upon the Government land or public property by a person, as in this case, who is a Member of the Panchayat. Therefore, the encroachment must be by the person who is a member and not any third party.

11] Therefore, on a plain reading of this provision what would be apparent is that it is the person who is intending to be a member of panchayat or who is a member cannot continue if that person has encroached upon the Government land or public property. As far as this aspect is concerned, the Legislature has not imported anything by which one can presume that if the encroachment is made by the spouse, relative of the member of grampanchayat, residing jointly with the Member, on the public property, then together with the members of such family, he is also deemed to be guilty of the act of encroachment. If the act is committed by somebody other than the elected person and, therefore, he incurs or invites disqualification, is not a conclusion which can be drawn or arrived at on a plain reading of section 14(1)(j-3).

12] The Legislature has taken care and wherever the concept of family or joint residence has to be applied, specific provision in that behalf has been made either substantively or by way of a Explanation. For illustration, if the disqualification is under section 14(1)(h) for failure to pay any tax or fee due to the panchayat or the zilla parishad, then, by virtue of explanation 2, what the Legislature has done is to provide that failure to pay any tax or fee due to the panchayat or zilla parishad by a member of HUF or by person belonging to a group, then, that shall be deemed to disqualify all members of such family or as the case may be of the group or unit. Equally in case of clause 14(1)(g) where a person is said to be disqualified for having any interest either by himself directly or indirectly through or his partner, any share or interest in any work done by order of the panchayat or in any contract with by or on behalf of or employment with or under the panchayat, the Legislature by Explanation I-A has clarified that a person shall not be disqualified under clause (g) by reason of only such person having a share or interest in any newspaper in which any advertisement relating to the affairs of the panchayat is inserted; or having a share or interest in the occasional sale to the panchayat of any article in which he regularly trades and having an occasional share or interest in the letting out or on hire to the panchayat of any article and equally having any share, interest in any lease for a period not exceeding ten years of any immovable property. Therefore, once the Legislature itself has clarified that an act of the member alone incurs or invites disqualification, then, by interpretative process it will not be possible to include in section 14(1)(j-3), the act of encroachment by members of his family and for that purpose, disqualify the elected representative. It is the act of the person seeking to contest election or functioning as a member which alone will attract the provision in question.

13] The Collector and Commissioner ought to have appreciated that, when, the Legislature makes a wrongful act of those other than the Member, it makes specific provision and in widest terms. In Section 16(1D) of the Mumbai Municipal Corporation Act, 1888, the disqualification is for the act of spouse or dependent. This provision is pari materia to Section 44(1)(c) of the Municipalities Act and reads as under:-

"16(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the bye-laws framed under the said Acts; and has directly or indirectly been responsible for, or helped in his capacity as such Councillor, in carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any competent authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority."

14] In such circumstances, in the teeth of the above referred findings of fact, the attempt by the authorities to read into the provisions the alleged role of the petitioner in residing in the structure/ house along with the Encroacher - father as a part of joint family or allegedly assisting him or making any statement on his behalf with regard to the subject encroachment will not be enough to disqualify the petitioner. By an interpretative process and merely because the petitioner is residing with his father, he cannot be disqualified from continuing as a member of the village panchayat in question. That would amount to disqualifying him and declaring his seat vacant, although, he is not responsible or has not committed any act which could be said to be encroachment on Government land or public property. There is nothing in the provision in question like the petitioner aiding his father or abetting in encroaching upon Government land or public property, which disqualifies him. If that was the Legislative intent, it would have said so in specific terms. ..."

16. For the reasons indicated above, Rule is made absolute. The writ petition succeeds and the order of the Additional Commissioner is quashed and set aside. The application/complaint of the 1st respondent seeking to disqualify the petitioner is dismissed. No costs.

Ordered accordingly.