Shishupal Kawduji Chavan vs Additional Commissioner, Nagpur And Others

[1] Rule.  Heard finally by consent of the parties present before the Court.

[2] In the present case, respondent no.3 has been disqualified to be a member of the Gram Panchayat as per order dated 02Â08Â2017

passed by the Additional Collector, Nagpur. It was held that the respondent no.3 incurred disqualification as contemplated under Section 14(1)

(jÂ3) of the Maharashtra Village Panchayats Act, 1958. This provision lays down that any member of the Gram Panchayat who is in unauthorized

occupation of the public property or who has encroached upon Government land or public property is disqualified to be the member of the Gram

Panchayat. Â

[3] Earlier the view was that such disqualification would be incurred by the member of the Gram Panchayat, if the encroachment or unauthorized

occupation is actually done by the member himself and it was not applicable to a case wherein encroachment or unauthorized occupation was

made not by the member of the Gram Panchayat but by some relative of such member of the Gram Panchayat, irrespective of the fact the member

of the Gram Panchayat  occupied same property along with the person or relative who actually encroached upon or unauthorizedly occupied

the government land or public property.Â

[4] This was the view taken in the case of Sagar Pandurang Dhundare vs Keshav Aaba Patil and others, decided by two Judge Bench of

the Hon'ble Apex Court reported at 2018(1) Mh.L.J. 1. Now, there is a latest judgment of the Hon'ble Apex Court rendered by three Judge Bench

of the Hon'ble Apex Court, wherein the view taken in Sagar (supra) has been overruled.  Now, the Hon'ble Apex Court has held that if

a member of the Gram Panchayat  remains in occupation of such encroached or unauthorised property, he or she, has a conflict of interest and if

any restrictive interpretation is given to the word “person†used in Section 14(1)(jÂ3) of the said Act, it would defeat the legislative

intendment that encroachment, or unauthorized occupation must be viewed strictly. This view is taken in the case of Janabai vs. Additional

Commissioner and others 2018(5) Mh.L.J. 921. Relevant observations of the Hon'ble Apex Court as they appear in paragraph 29 of the judgment

are reproduced as under:

“We may note here with profit that the word 'person' as used in Section 14(1)(jÂ3) is not to be so narrowly construed as a consequence of which

the basic issue of 'encroachment' in the context of disqualification becomes absolutely redundant. The legislative intendment, as we perceive, is that

encroachment or unauthorized occupation has to viewed very strictly and Section 53, therefore, provides for imposition of daily fine. It is also to be

borne in mind that it is the panchayat that has been conferred with the power to remove the encroachment. It is the statutory obligation on the part

of the Panchayat to protect the interest of the 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 the first encroacher or the encroachment made by the person alone who would suffer a

disqualification, it would lead to an absurdity. The 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 subserves the real

warrant of the provision. Thus analysed, we are of the view that the decision in Sagar Pandurang Dhundare (supra) does not lay done the correct

position of law and it is, accordingly, overruled.â€​

[5] Upon consideration of facts of the present case, I find that this case is squarely covered by the ratio of the judgment of Janabai (supra), asÂ

reproduced above. In this regard, I must say that there is no dispute here that in the house constructed  by husband of the petitioner on the

Government land encroached upon by him, the petitioner resides with her husband. I am, therefore, of the view that decision of JanabaiÂ

applies here and as such, I find that the learned Additional Collector has rightly held that respondent no.3 has incurred disqualification under

Section 14(1) (jÂ3) of the said Act. Consequently, I find that the impugned order which is contrary to the law settled by the Hon'ble Apex Court

is patently illegal and, therefore, deserves to be quashed and set aside.Â

[6] The Writ petition is allowed. The impugned order dated 28Â03Â2018 passed by the Additional Commissioner, Nagpur, is hereby quashed

and set aside and the order of the Additional Collector dated 02Â​08Â​2017, is restored and confirmed.

[7] Rule is made absolute in above terms. No costs.