Bombay High Court
Sau. Shobha Pradeep Patil (Gaikwad) And ... vs The Additional Divisional ... on 24 February, 2018
Equivalent citations: AIR 2018 (NOC) 690 (BOM.)
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14073 OF 2017
1. Sau.Shobha Pradeep Patil (Gaikwad) )
Age 40, Occ. Agriculture, )
2. Shri Mahadev Ramchandra Kharat )
Age major, Occ. Agriculture, )
3. Sau.Rohini Shivaji Koli )
Age major, Occ. Agriculture, )
4. Sau. Laxmi Sunil More )
Age major, Occ. Agriculture, )
All residents of Village Kalamb )
Taluka Indapur, District Pune. ) .. Petitioners
VERSUS
1. The Additional Divisional Commissioner)
Pune Division, Pune having office at )
Old Secretariate, Near Sadhu Waswani )
Chowk, Near Railway Station, Pune. )
2. The Additional District Collector, )
Pune )
3. The Block Development Officer )
Kalamb, Taluka Indapur, Dist. Pune. )
4. The Village Development Officer )
Gram Panchayat, Kalamb, Tal.Indapur, )
District Pune. )
5. Shri Manohar Shrirang Ghodke )
Age major, Occ.Agriculture. )
6. Shri Gorakh Ramdas Khandagale )
Age major, Occ. Agriculture, )
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Nos.3 and 4 resident of village Kalamb )
Taluka Indapur, District Pune. )
7. Smt. Vidya Sudhir Dombale )
Age 48 years, Occ. Household )
8. Smt. Kalpana Baban Aage )
Age 38 years, Occ. Household )
9. Shri. Suryakant Vijay Waghmare )
Age 23 years, Occ.Service )
10. Kum.Bhagyashri Dadaso Dhandore )
Age 28 years, Occ. Household )
11. Smt. Sangita Shivaji Jadhav )
Age 42 years, Occ. Household )
12. Smt.Kavita Kundalik Jagtap )
Age 25 years, Occ. Household )
13. Smt.Asha Vitthal Nalwade )
Age 44 years, Occ. Household )
14. Smt.Ujjwala Uttam Phadtare )
Age 45 years, Occ. Household )
Nos.7 to 14 all are R/o. A/p. Kalamb, )
Taluka Indapur, District Pune, )
Pin Code - 413 114. ) .. Respondents
----
Mr.G.S. Godbole i/by Mr.P.M. Arjunwadekar for the petitioners.
Ms.K.N.Solunke, AGP for the respondent nos.1 & 2-State.
Mr.P.S.Dani, Senior Advocate i/by Mr.N.Y.Chavan for the respondent
nos.5 & 6.
Mr.Vinod Sangavikar for the respondent nos.7, 9, 10 & 13.
----
CORAM : R.D. DHANUKA, J.
DATE : 24th February 2018
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Judgment :-
. By this petition filed under Articles 226 and 227 of the
Constitution of India, the petitioners have impugned the order dated 5 th August 2017 passed by the learned Additional Divisional Commissioner, Pune Division, Pune in Gram Panchayat Appeal No.2 of 2017 thereby allowing the said appeal filed by the respondent nos.5 and 6 and setting aside the order dated 10th January 2017 passed by the learned Additional Collector, Pune in Gram Panchayat Dispute Application No.141 of 2016. This Court has heard the matter finally. Some of the relevant facts for the purpose of deciding this petition are as under :-
2. Some time in the year 2015, the petitioners were elected as members of the Gram Panchayat, Kalamb. The petitioner no.1 was subsequently elected as Sarpanch of the said Gram Panchayat. On 5 th July 2016, the respondent nos.5 and 6 herein filed a complaint with the Additional District Collector, Pune against the petitioners alleging that the petitioners had committed encroachment on the land belonging to the State of Maharashtra and were thus disqualified in view of Section 14(1)(j-3) of the Maharashtra Village Panchayats Act,1958 (for short "the said Act). It was alleged in the said complaint that the husband of the petitioner no.1 had made an encroachment on the land bearing Gat ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 4 wp-14073.17 (j).doc No.457 which was Gairan (Grazing land belonging to the State of Maharashtra). It was further alleged that the husband of the petitioner no.1 had carried out R.C.C. construction of 1000 sq.ft. and there was a revenue entry to that effect showing the name of the husband of the petitioner no.1. It was alleged by the respondent nos.5 and 6 that even in the encroachment book separately maintained by Village Panchayat, there was an entry to the effect that husband of the petitioner no.1 allegedly carried out an encroachment on the government land. It was the case of the respondent nos.5 and 6 that on 5 th July 2016 i.e. after filing the dispute application before the respondent no.2, name of the husband of the petitioner no.1 allegedly were deleted by passing a resolution in the Village Panchayat meeting.
3. In so far as the petitioner no.2 is concerned, it was alleged in the said complaint that the petitioner no.2 had also carried out an encroachment in Gram Panchayat Milkat No.1584. In so far as the petitioner no.3 is concerned, it was alleged in the said complaint that the petitioner no.3 had carried out an encroachment in Gat No.457 which was Gairan land thereby constructing Gram Panchayat Milkat No.1709 in the said plot of land. In so far as the petitioner no.4 is concerned, the husband of the petitioner no.4 constructed Gram ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 5 wp-14073.17 (j).doc Panchayat Milkat No.2395 in Gairan Land No.457. It was alleged that the petitioners had constructed their houses on the land belonging to the State of Maharashtra and therefore they incurred disqualification under Section 14(1)(j-3) of the said Act.
4. On 28th December 2016, the petitioners filed a reply in the said complaint filed by the respondent nos.5 and 6 before the respondent no.2 and denied that they had committed any encroachment and they had incurred disqualification under the provisions of the said Act. The petitioners also denied that they were in possession of any of the properties constructed in Gairan land. In so far as the entries standing in their names in the Gram Panchayat records were concerned, they were hollow entries which were subsequently cancelled by the Gram Panchayat. It was the case of the petitioners that the said complaint filed by the respondent nos.5 and 6 was out of political rivalry and due to frustration caused in the election.
5. On 12th August 2016 and 21st April 2016, the Gram Panchayat, Kalamb in a monthly meeting passed resolution at Serial No.10 and proposed to delete the name of the husband of the petitioner no.1 and maintained the name of Kasim Mahammed Syed in the Gram ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 6 wp-14073.17 (j).doc Panchayat Milkat No.569 by the Consent Deed alleged to have been executed by the parties. In the meeting held on 21st April 2016, the Gram Panchayat passed a resolution at Serial No.40 whereby the members agreed to delete the names of Mahadev Ramchand Kharat, Shivaji Hanumant Koli and Sunil Babu More from the Gram Panchayat records as they did not allegedly own any properties within the Gram Panchayat limits. By the said resolution, it was resolved that their names should be delected permanently from the records of the Gram Panchayat.
6. On 28th September 2016, the Chief Executive Officer, Pune Zilla Parishad, Pune submitted a report with the Collector, Pune stating that the petitioners had allegedly carried out encroachments in the land belonging to the State of Maharashtra. In the said report, it was stated that the husband of the petitioner no.1 Mr.Pradeep Vishwasrao Patil committed an encroachment in Gairan Land No.457 while the petitioner no.2 committed an encroachment by constructing house No.1584. In so far as the petitioner no.3 is concerned, it was stated that the petitioner no.3 allegedly committed an encroachment. In so far as the petitioner no.4 is concerned, it was stated that the husband of the respondent no.4 also committed an encroachment.
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7. The Chief Executive Officer submitted a report that the petitioners had allegedly incurred disqualification under Section 14 (1) (j-3) of the Maharashtra Village Panchayat Act, 1958. On 19 th October 2016, the Village Development Officer submitted another report stating that the petitioners had allegedly committed encroachment in the land bearing Gat No.457. The petitioners submitted exhaustive written submissions before the respondent no.2.
8. On 10th January 2017, the respondent no.2 passed an order rejecting the said complaint filed by the respondent nos.5 and 6 on various grounds. Being aggrieved by the said order dated 10 th January 2017, the respondent nos.5 and 6 filed an appeal i.e. Gram Panchayat Appeal No.2 of 2017 before the respondent no.1. The petitioners filed detailed written submissions in the said proceedings. On 5 th August 2017, the respondent no.2 passed an order thereby allowing the said Gram Panchayat Appeal No.2 of 2017 filed by the respondent nos. 5 and 6 and quashed and set aside the order dated 10th January 2017 passed by the respondent no.2 in Gram Panchayat Dispute Application No.141 of 2016. The respondent no.1 held that the petitioners had incurred disqualification under Section 14(1)(j-3) read with Section 16 of the said Act and thus held to be disqualified.
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9. Being aggrieved by the said order dated 5 th August 2017 passed by the respondent no.1, the petitioners filed this petition inter alia praying for quashing and setting aside the said order dated 5 th August 2017.
10. By an order dated 19th September 2017, this Court admitted this writ petition. This Court however observed that no case is made out for grant of any interim relief in this matter. This Court however made it clear that in case before 20th November 2017, there was proposal to hold fresh elections to fill up the seats, the petitioners would be at liberty to apply.
11. On 13th September 2017, the learned Tahasildar, Indapur directed to hold the election to the post of Sarpanch fallen vacant in view of disqualification of the petitioner no.1. A meeting was accordingly convened on 20th September 2017 for electing the Sarpanch. Sau.Ujjwala Uttam Phadtare has been declared elected as a Sarpanch to the said post fallen vacant and at present, she is holding the said post.
12. On 22nd January 2018, the election programme was declared for filling up those four seats. Time for filing nomination forms, scrutiny ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 9 wp-14073.17 (j).doc of the nomination forms, election symbols, date of election and counting were mentioned. The voting was to take place on 27th February 2018 and the declaration of result would be on 28th February 2018.
13. The petitioners filed an additional affidavit to this writ petition on 15th February 2018 placing on record that the Deputy Collector, Pune had issued a Circular dated 9th February 2018 addressing to the Sub-Divisional Officer as well as the Tahasildar of Taluka Indapur informing that as per the directions of the State Election Commission, there would be fresh elections of all the village panchayats whose tenure would be expiring or to expire between 7 th March 2018 to 31st May 2018 and also the fresh elections in respect of vacant seats of the concerned village panchayats whose program has been published in a notice issued by the Elections Commission.
14. The petitioners thereafter applied for early hearing. The matter appeared before this Court on 14th February 2018 when the matter was adjourned to 15th February 2018 and then on 16 th February 2018 when this Court granted leave to amend to the petitioners to implead the candidates who had filed nomination forms pursuant to the election programme issued by the Additional Commissioner. It was ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 10 wp-14073.17 (j).doc mentioned in the said order that it should be made clear in the said notice that the petition would be heard finally by this Court on the next date.
Pursuant to the said liberty granted by this Court to amend the petition, the petitioners impleaded the respondent nos.7 to 14 as party-respondents to this writ petition and served papers and proceedings upon them.
15. During the course of arguments, learned counsel for the petitioners sought liberty to delete the name of the respondent no.14 from cause title of the petition on 24 th February 2018. This Court granted leave to amend to delete the name of the respondent no.14.
16. The State Government, original complainants i.e. respondent nos.5 and 6 and the respondent no.7, 9, 10 & 13 filed their affidavits- in-reply opposing this writ petition on various grounds.
17. Mr. Godbole, learned counsel for the petitioners invited my attention to various documents annexed to the petition and also to the affidavits filed by the respondents. It is submitted by the learned counsel that in the complaint filed by the respondent nos.5 and 6 against the petitioners, at least in so far as the petitioner nos.1 and 4 are concerned, the allegations of the alleged encroachment on the properties of the State ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 11 wp-14073.17 (j).doc Government were made against the husband of the petitioner nos.1 and 4 and not against the petitioner nos.1 and 4. He submits that the learned Collector passed a reasoned order rejecting the complaint filed by the respondent nos.5 and 6. The learned Additional Divisional Commissioner however has set aside the said order passed by the learned Collector without considering the submissions made by the petitioners.
18. It is submitted by the learned counsel for the petitioners that the petitioner nos.1 and 4 thus could not have been declared as disqualified under Section 14(1)(j-3) of the said Act on the ground that their respective husband had made encroachment on the government properties. In support of this submission, learned counsel for the petitioners heavily placed reliance on the judgment of the Supreme Court in the case of Sagar Pandurang Dhundare Vs. Keshav Aaba Patil & Ors. -(2018) 1 SCC 340 and in particular paragraphs 1, 3, 6, 10, 11 and 15 and would submit that Supreme Court has held in the said judgment that the person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. He submits that the findings rendered by the learned Additional Divisional Commissioner that the husband of the petitioner ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 12 wp-14073.17 (j).doc nos.1 and 4 had allegedly carried out encroachment on the government properties itself was sufficient for the Additional Divisional Commissioner to set aside the order of disqualification of the petitioner nos.1 and 4. Learned counsel also placed reliance on several judgments of this Court which are adverted to by the Supreme Court in the judgment in case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra).
19. In so far as the respondent nos.2 and 3 are concerned, it is submitted by the learned counsel that at no point of time, any measurement of the alleged unauthorised portion of encroachment was taken by the Additional Divisional Commissioner before rendering a finding that the encroachment was made by the petitioner nos.2 and 3. It is submitted by the learned counsel that no encroachment map had been prepared by the office of T.I.L.R. and thus the learned Additional Divisional Commissioner could not render any finding of encroachment against the petitioner nos.2 and 3. It is submitted that in so far as entries in the encroachment register made in the name of the petitioners are concerned, the said entries were not made after giving any notice of personal hearing to the petitioners. He submits that in any event, the entries in the encroachment register were not conclusive before passing any order of disqualification of the petitioners.
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20. It is submitted that the respondent nos.5 and 6 had never raised any such objection at the time of filing of nomination papers by the petitioners and such objection was politically motivated, after thought and were made merely to harass the petitioners.
21. It is submitted by the learned counsel that enquiry reports submitted by the Village Development Officer on 19 th October 2016 and by the Chief Executive Officer, Pune Zilla Parishad on 28th September 2016 were also without issuing any prior notice to the petitioners and reflected factually incorrect position.
22. Learned counsel for the petitioners placed reliance on Section 53(1)(2) and (2A) of the said Act and would submit that admittedly in this case, Gram Panchayat did not take any action under Section 53(2) against the alleged unauthorised encroachment. He submits that the order of disqualification of the members on the ground of unauthorised encroachment on the government properties is a serious allegation and may lead to serious consequences. The allegations of encroachment of the government properties by the members have to be strictly proved and have to be adjudicated upon by the appropriate authority. He submits that merely because the allegations are made in ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 14 wp-14073.17 (j).doc the complaint by the respondent nos.5 and 6, the order of disqualification could not have been passed merely based on the allegations simplicitor. It is submitted that since there was no adjudication by any authority on the allegation whether encroachment in fact was done by the petitioners on the government land which fact finding enquiry and the order thereon was a condition precedent for initiating any action under Section 14(1) (j-3) of the said Act, no order of disqualification of any of the petitioners could be made by the learned Additional Divisional Commissioner.
23. Mr.Godbole, learned counsel for the petitioners strongly placed reliance on paragraphs 10 and 15 of the judgment of the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) in support of this submission.
24. Learned counsel for the petitioners also placed reliance on Section 20(2) of the Maharashtra Land Revenue Code, 1966 (for short "the said Code") and submits that the Collector or the Survey Officer has to make a formal enquiry before deciding the claim where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government. Such order is appealable. He submits that there is no such enquiry conducted by the Collector or the Survey Officer under the said provision. ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 :::
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25. Mr.Dani, learned senior counsel for the respondent nos.5 and 6, on the other hand, submits that all the petitioners had made encroachments on the government land. His clients had thus rightly filed a complaint for disqualification of the petitioners under Section 14(1)(j-
3) of the said Act. He submits that after posts of all the petitioners had fallen vacant in view of their disqualification as members of the Village Panchayat in so far as the petitioner no.1 concerned, the Tahasildar of Indapur Tehsil office issued an order dated 13th September 2017 directing to hold an election for the post of Sarpanch. The said election was accordingly held by the Circle Officer and the original respondent No.14 i.e. Smt.Ujjwala Uttam Phadtare has already been elected as Sarpanch and has been occupying the said post since then.
26. It is submitted by the learned senior counsel that this Court while admitting this writ petition has already rejected the interim relief in favour of the petitioners. The election programme was declared on 22nd January 2018. The petitioners however filed an additional affidavit on 15th February 2018 which would clearly indicate that the petitioners have not been diligent and had not approached this Court immediately upon declaration of the election programme. He submits that on the date of hearing of this petition, nomination forms have been already filled up ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 16 wp-14073.17 (j).doc by the candidates, scrutiny of the nomination forms is also done. The last date of withdrawal of the nomination and allottment of symbols is also over. List of candidates has been finalised. He submits that the declaration of result would be on 28th February 2018.
27. It is submitted by the learned senior counsel that out of four petitioners, two of the petitioners were elected as members on the posts reserved for Scheduled Caste. In view of those two posts having been fallen vacant, two of the candidates have filled in nomination papers under the said reserved category. Since there was no candidate for the said post, those two candidates i.e. respondent nos.9 and 10 from Ward No.5 have already been elected unopposed and only formal declaration is remained to be issued about their election. It is submitted by the learned senior counsel that in view of these subsequent developments, this Court cannot interfere with the election process at this stage and the remedy of the petitioners would be only by way of filing of election petition under Section 15 of the said Act.
28. The next submission of Mr.Dani, learned senior counsel for the respondent nos.5 and 6 is that even if the order of disqualification is set aside by this Court, the entire election cannot be set at naught. He ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 17 wp-14073.17 (j).doc submits that though the petitioners have impleaded the candidates who have filed nomination forms for the vacant posts, the petitioners have not made any amendment to the writ petition challenging the election programme and for declaration that the seats occupied by the petitioners having not been fallen vacant.
29. Learned senior counsel submits that this Court thus cannot set aside the election of the respondent nos. 9 and 10 by exercising extra ordinary jurisdiction of this court under Article 227 of the Constitution of India. He invited my attention to various findings of fact rendered by the learned Additional Divisional Commissioner in the impugned order by which the appeal filed by the respondent nos. 5 and 6 came to be allowed. He submits that the learned Additional Divisional Commissioner has considered all the evidence produced on record including two reports submitted by the authorities and after considering the submissions of both the parties has passed the impugned order. This court cannot interfere with the findings recorded by the learned Additional Divisional Commissioner in this petition.
30. Insofar as submission of the learned counsel for the petitioner that unless there was an adjudication on the allegation that the ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 18 wp-14073.17 (j).doc encroachment was made by the members of the Village Grampanchayat on the Government land, no such member can be declared as disqualified under section 14(1)(j-3) is concerned, it is submitted in section 14 itself, the legislature has itself provided for adjudication before declaring the members disqualified such as under section 14(1)(b) and (c) i.e. if a member has been adjudged by a competent court in view of unsound mind and if the member has been adjudged as insolvent and has not been discharged respectively. He submits that the enquiry by the collector on the complaint filed by the respondent nos. 5 and 6 in any event itself was an process of adjudication after hearing all the parties and after giving an opportunity to all the parties of being heard. He distinguished the judgment of Supreme Court in case of Sagar Pandurang Dhudare (supra) on this issue and would submit that the issue before the Supreme Court in the said judgment was whether the family member of the encroacher can be disqualified under the Maharashtra Village Panchayat Act, 1958. The disqualification of the member was not set aside by the Supreme Court on the ground that there was no adjudication/conviction of the said members on the issue that the said member or his family member had encroached on the government land. Legislative intent is clear that for disqualification under section 14(1)(j-3), no such conviction was warranted.
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contemplated under sections 20 and 53 of the Maharashtra Land Revenue Code, 1966 is to ascertain the title of the property of the government land and would not assist the case of the petitioners. Such enquiry in any event is subject to the order as may be passed by the civil court. He submits that in this case, the collector had obtained a report from two authorities. No notice was required to be issued to the petitioners before obtaining such internal reports. The learned collector is empowered to decide the validity of such report. The collector is not bound to accept such report if the same is not acceptable to the collector.
32. Insofar as resolution dated 12th August,2016 passed by the Grampanchayat is concerned, it is submitted by the learned senior counsel that the said resolution was passed to delete the name of the husband of the petitioner no.1 from the enrollment register to oblige the petitioner no.1 and is of no consequence. The learned collector had rejected the complaint filed by the respondent nos. 5 and 6 based on such illegal resolution. The learned Additional Divisional Commissioner rightly discarded the said resolution. It is submitted that in any event, the impugned order passed by the learned Additional Divisional Commissioner holding that the petitioners had made encroachment on the ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 20 wp-14073.17 (j).doc government land was based not only on the basis of those two reports but was based on the documents produced by the complainant as well as by the petitioners.
33. Insofar as petitioner nos. 1 and 4 are concerned, it is submitted by the learned senior counsel that even if the husband of the petitioner nos. 1 and 4 had made encroachment on the government land for the purpose of disqualification of the members, the husband of the member and the member shall be treated as one and for the purpose of disqualification under section 14(1) (j-3) of the said Act.
34. Mr.Dani, learned senior counsel placed reliance on the judgment of Supreme Court in case of Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and anr. vs. State of Maharashtra & Ors., (2001) 8 SCC 509 and in particular paragraphs 2 and 12 in support of his submission that the election programme having been announced, this court cannot interfere in the process of election of the Gram Panchayat.
35. Learned AGP submits that this court cannot interfere with the election process which has been already declared. Except the election ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 21 wp-14073.17 (j).doc which is proposed on 28th February, 2018, all prior steps are already completed. Learned counsel for the respondent nos.7, 9, 10 and 11 adopts the submissions made by Mr.Dani, learned senior counsel for the respondent nos. 5 and 6.
36. Mr.Godbole, learned counsel for the petitioners in rejoinder submits that there is no delay in approaching this court for interim reliefs by the petitioners as sought to be canvassed by Mr.Dani,learned senior counsel for the respondent nos. 5 and 6. He submits that when the petition was admitted, there was no election programme declared by the State Government. Liberty was granted to the petitioners to apply in case before 20th November,2017, there was any proposal to hold fresh election to fill up the seats. He submits that on 22 nd January,2018, election programme was announced. On 9th February, 2018, there was modification in the said election programme. On 15 th February,2018, the petitioners filed additional affidavit. On 14th February 2018, the petitioners requested for circulation of the matter. The matter was adjourned on two occasions. The petitioners have approached this court at the earliest and thus there is no delay.
37. Insofar as submission of the learned senior counsel for the respondent nos. 5 and 6 that though the petitioners have carried out ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 22 wp-14073.17 (j).doc amendment and has impleaded the candidates who had filled nomination forms, no relief to set aside the election process has been challenged in the writ petition is concerned, it is submitted by Mr.Godbole, learned counsel for the petitioners that the petitioners have not challenged the election programme. The petitioners have challenged the order of disqualification of the petitioners by the Additional Divisional Commissioner. The petitioners were thus not bound to challenge the election programme. The petitioners cannot be relegated to election petition.
38. Learned counsel invited my attention to section 15 of the Village Panchayat Act and would submit that the order of disqualification of member under section 18(1)(j) is not a ground of challenge in an election petition. Learned counsel distinguished the judgment of Supreme Court in case of Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and anr. (supra). He invited my attention to the paragraphs 10 and 11 of the said judgment. He submits that since the petitioners have not challenged the election programme, the election authority are not required to be impleaded in the writ petition. He submits that in section 14(1) (j-3) of the said Act was inserted w.e.f. 21st December,2006. The provision of section 53 of the ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 23 wp-14073.17 (j).doc Maharashtra Land Revenue Code, 1963 was already in existence that time. Unless an action is taken against the person making an encroachment on the government land under section 53 of the Maharashtra Land Revenue Code. No such member can be disqualified under section 14(1)(j-3). The Collector is empowered to take action against such person under section 53(2A) of the Maharashtra Land Revenue Code. He submits that admittedly no action under the said provisions has been taken by the Collector against any of the petitioners till date.
39. Mr.Dani, learned senior counsel for the respondent nos. 5 and 6 submits that section 14(1)(j-3) does not contemplate any conviction and thus there is no question of any adjudication before declaring any member as disqualified. He submits that under section 15 of the said Act, no specific grounds of challenge are in an election petition provided. He submits that even if this court comes to the conclusion that any of the petitioners were wrongly disqualified, the question of their restitution does not arise. They will have to contest fresh election.
REASONS AND CONCLUSIONS :-
40. The petitioners were elected as members of the Gram Panchayat, Kalamb, Taluka Indapur, District Pune in the year 2015. The ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 24 wp-14073.17 (j).doc petitioner no.1 was therefore elected as a Sarpanch of the said Gram Panchayat. The respondent nos.5 and 6 had filed a dispute application against the petitioners on 5th July 2016. A perusal of the said application filed by the respondent nos.5 and 6 clearly indicates that in so far as the petitioner nos.1 and 4 are concerned, allegation of encroachment on the government land was made against the husband of these two petitioners and not against them individually. In so far as the petitioner nos.2 and 3 are concerned, it was alleged that the encroachment was made by them individually on the government land. The respondent no.2 however rejected the dispute application filed by the respondent nos.5 and 6.
41. The learned Additional Divisional Commissioner however allowed the appeal filed by the respondent nos.5 and 6. In so far as the petitioner nos.1 and 4 are concerned, the learned Additional Divisional Commissioner also rendered a finding that though the encroachment was made by the husband of the petitioner nos.1 and 4, the petitioner nos.1 and 4 were declared as disqualified under Section 14(1)(j-3) of the said Act. In so far as the petitioner nos.2 and 3 are concerned, the findings are rendered that they individually made encroachment on the government land and were also disqualified under the said provision. ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 :::
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42. Learned senior counsel for the respondent nos.5 and 6 could not dispute that there were no allegations of encroachment made against the petitioner nos.1 and 4 on the government land either in the complaint by his clients nor there was a finding rendered by the Additional Divisional Commissioner about such encroachment alleged to have been made by the petitioner nos.1 and 4 individually.
43. Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) has considered this aspect and has construed Section 14(1)(j-3) of the said Act. Supreme Court considered various judgments of this Court taking different view in the matter and has considered the Statement of Objects and Reasons and has held that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment.
44. It is held by the Supreme Court that there should not be a member in the Panchayat with conflicting interest. But once a person is ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 26 wp-14073.17 (j).doc elected by the people, he can be unseated only in the manner provided under law. When intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. The principles laid down by the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) squarely applies to the facts of this case in so far as the petitioner nos.1 and 4 are concerned.
45. Mr.Dani, learned senior counsel for the respondent nos.5 and 6 could not distinguish the judgment of the Supreme Court in so far as the petitioner nos.1 and 4 are concerned. The order of disqualification of the petitioner nos.1 and 4 passed by the learned Additional Divisional Commissioner is thus ex facie contrary and in violation of the principles laid down by the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) and thus deserves to be set aside. Though this Court in catena of decisions had taken a different view about the beneficiaries of an encroachment and also that if a family member of the members of the Village Panchayat had made encroachment on the government land, the member could not be ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 27 wp-14073.17 (j).doc considered as disqualified, however, in view of the judgment of the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra), the contrary view taken by this Court in number of judgments cannot be considered by this Court.
46. In so far as the petitioner nos.2 and 3 are concerned, it is not in dispute that the respondent nos.5 and 6 has alleged encroachment by them on the government land. The learned Additional Divisional Commissioner has considered individual documents produced by the parties and also two reports i.e. the report of the C.E.O. Zilla Parishad, Pune and the report submitted by the Village Development Officer recording that the encroachment on the government land was made by the petitioner nos.2 and 3. The findings rendered by the learned Additional Divisional Commissioner are not perverse and thus cannot be interferred with by this Court under Article 227 of the Constitution of India.
47. In so far as the submission of Mr.Godbole, learned counsel for the petitioners that since there was neither any order of punishment for encroachment nor a final order of eviction under Section 53(2) or 53(2A) of the said Code merely on the basis of the complaint made ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 28 wp-14073.17 (j).doc against a member alleging encroachment on the government land, Section 14(1)(j-3) of the said Act cannot be pressed in service is concerned, learned counsel strongly placed reliance on paragraph 15 of the judgment of the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra). In so far as the issue of measurement raised by the petitioners is concerned, the Additional Divisional Commissioner has rendered findings of facts on the issue of encroachment which are not perverse.
48. Section 53 of the Maharashtra Land Revenue Code, 1966 provides for Summary eviction of person unatuhorisedly occupying land vesting in government. The Collector has to give such person who is in unauthorised occupation on the government land, a reasonable opportunity of being heard. The Collector is empowered to make a summary enquiry, if necessary. If the Collector renders a finding of such encroachment, the Collector is empowered to issue a notice to vacate such person on the land or foreshore, as the case may be. If such notice is not obeyed by such person, the Collector is empowered to remove him from such land or foreshore. Such unauthorised occupant if still continues with possession, he shall be liable to pay penalty. The provisions of effecting service of such encroachment for making a ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 29 wp-14073.17 (j).doc summary enquiry was inserted in Section 53 by Amendment by Maharashtra 36 of 1971. Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 however was inserted by the Bombay Village Panchayats (Amendment) Act, 2006 dated 21st December 2006.
49. A perusal of Section 14(1)(c) provides that a member can be disqualified from Gram Panchayat, if he has been adjudged an insolvent and he has not obtained his discharge. Section 14(1)(a)(i) provides for disqualification of a member upon conviction of a member under the provisions of Untouchability (Offences) Act, 1955 or under the provisions of the Maharashtra Prohibition Act, 1949. It is thus clear that when Section 14 was inserted, Sections 53 and 53(2A) of the Maharashtra Land Revenue Code, 1966 were already in force. The legislature was fully aware of such existing provisions of the Maharashtra Land Revenue Code, 1966 when Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 was inserted. The Legislative intent is clear that whenever any adjudication/conviction of a member under a particular Act or if such a member is adjudged as unsound mind or insolvent and not having obtained his discharge, the Legislation has provided those provisions as condition precedent for the purpose of declaring a member as disqualified. There is however no such condition of prior adjudication/ ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 30 wp-14073.17 (j).doc conviction of a member under the provisions of the Maharashtra Land Revenue Code, 1966 or under any other provisions of law for a member to be disqualified on the ground that he had made encroachment on the government land.
50. A perusal of the judgment of the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) indicates that the issue before the Supreme Court was whether the family member of the original encroacher can be disqualified under the provisions of the Maharashtra Village Panchayats Act, 1958. There was no allegation before the Supreme Court that the appellants were encroachers themselves and had first encroached upon the government land and continued to occupy the same. The allegations before the Supreme Court in that matter were that father/grandfather of the members were encroachers and they were the beneficiaries of the encroachment. In that matter also, none of the members were declared as disqualified on the ground that there was any order of summary eviction or any order of penalty levied against them on the ground that they were found making encroachment on the government land. I am thus not inclined to accept the submission of Mr.Godbole, learned counsel for the petitioners that unless there would have been enquiry by the Collector under Section ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 31 wp-14073.17 (j).doc 53(2) of the said Code or under Section 20 of the said Code or unless there would have been an order of conviction or penalty against the members of the Gram Panchayat for making encroachment on the government land, the provisions of Section 14(1)(j-3) of the said Act would not be attracted.
51. The learned Collector at the first instance who hears a complaint by a person against the member of making encroachment on the government land himself conducts enquiry. It is not in dispute that both the parties were granted opportunity of being heard by the Collector. The learned Additional Divisional Commissioner has considered the reports made by two authorities and also the documents produced by both the parties while rendering findings of facts. The authority considering such complaint is not expected to render a full- fledged enquiry like in a civil suit or an enquiry in a criminal matter. The names of the petitioners were also admittedly recorded in the encroachment register prepared by the authority. The observations of the Supreme Court in the case of Sagar Pandurang Dhudare Vs. Keshav Aaba Patil (supra) and more particularly in paragraph 15 has to be read and construed in that context. I am thus not inclined to interfere with the findings of facts of the learned Additional Divisional ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 32 wp-14073.17 (j).doc Commissioner of encroachment on the government land in so far as the petitioner nos.2 and 3 are concerned.
52. In so far as the delay in filing writ petition or in moving an application for early hearing of the writ petition is concerned, it is not in dispute that this Court while admitting the petition on 19 th September 2017 had refused to grant any interim relief. This Court had made the rule returnable on 20th November 2017. However it was made clear in the said order that in case before 20th November 2017, there was proposal to hold fresh elections to fill up the seats, the petitioners would be at liberty to apply.
53. On 22nd January 2018, Election Programme was issued. On 9th February 2018, the Deputy Collector, Pune has issued a Circular to the Sub-Divisional Officer as well as the learned Tahasildar of Taluka Indapur informing that as per the directions of the state Election Commission, there will be fresh elections of all the Village Panchayats whose tenure will be expiring or about to expire between 7 th March 2018 to 31st May 2018 and also the fresh elections in respect of vacant seats of the concerned village Panchayats whose programme has been published in a notice issued by the Election Commission. As per the ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 33 wp-14073.17 (j).doc programme declared by the Election Commission, in so far as Gram Panchayat of village Kalamb is concerned, it was declared that there would be voting in respect of vacant seats on 27 th February 2018 and counting of votes would be held on 28th February 2018.
54. On 15th February 2018, the petitioners filed additional affidavit before this Court placing additional facts on record. The matter was mentioned on 14th February 2018 and was adjourned to 15th February 2018. In view of the request made by the learned counsel for the parties on 15th February 2018, the matter was adjourned to 16 th February 2018. This Court granted leave to amend to the petitioners so as to implead the parties who had filed nomination forms pursuant to the election programme issued by the learned Additional Divisional Commissioner. The petitioners accordingly carried out amendment to the petition. The matter was placed on supplementary board on 24th February 2018 for hearing and final disposal. Till 24th February 2018, the candidates who had filed nomination forms were already allotted symbols. I do not find any gross delay on the part of the petitioners in mentioning the matter quickly.
55. In so far as the judgment of the Supreme Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 34 wp-14073.17 (j).doc Dugdha Utpadak Sanstha & Anr. (2001) 8 SCC 509 relied upon by Mr.Dani, learned senior counsel for the respondent nos.5 and 6 is concerned, Supreme Court considered the election of Managing Committee Members of Co-operative Society under the provisions of Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971. It is held by the Supreme Court that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and once the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. Supreme Court in the said judgment adverted to the earlier judgment in the case of Bar Council of India Vs.Surjeet Singh (1980) 4 SCC 211 in which it was held that a writ petition under Article 226 of the Constitution of India should not be rejected on account of an alternative remedy of filing an election petition where, firstly, the challenge is not a ground under the Act or Rules for filing an election petition and, secondly, where the validity of a rule is challenged being ultra vires and invalid.
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56. I am thus not inclined to accept the submission of Mr.Dani, learned senior counsel for the respondent nos.5 and 6 that in these circumstances, the election programme having been already declared and substantial part of the steps having been already taken as per such election programme, the remedy of the petitioners would be by way of an election petition and not this writ petition. Section 15 of the Maharashtra Village Panchayats Act provides for remedy by way of election petition before Civil Judge (Junior Division) or Civil Judge (Senior Division), as the case may be. There are no specific grounds provided in the said provision on which the election petition can be filed challenging the validity of elections of a member of Gram Panchayat. The judgment of the Supreme Court would assist the case of the petitioners and not the respondent nos.5 and 6.
57. Be that as it may, Civil Court who is empowered to decide an Election Petition under Section 15 of the Maharashtra Village Panchayats Act, 1958 has no jurisdiction to decide the validity of an order passed by the Collector or the Additional Divisional Commissioner declaring a member of the Gram Panchayat as disqualified under Section 14 of the said Act. The members of the Gram Panchayat who are declared as disqualified because of any of the conditions prescribed ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 36 wp-14073.17 (j).doc under Section 14(1)(a) to 14(1)(k) cannot challenge the validity of such order passed by the learned Collector or the Additional Divisional Commissioner in election petition under Section 15 of the said Act. The remedy of such member whose membership is disqualified under Section 14 of the said Act would not be by way of election petition but by invoking extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. I am thus not inclined to dismiss this writ petition on the ground of maintainability of this petition.
58. In so far as the submission of the learned counsel for the petitioners that if this Court comes to the conclusion that the order passed by the learned Additional Divisional Commissioner declaring the membership of any of the petitioners disqualified is required to be set aside, membership of such petitioner shall stand restored with immediate effect and post, if any, held by them also shall be restored and more particularly the petitioner no.1 who was elected as a Sarpanch of the Gram Panchayat, Kalamb is concerned, in so far as the post of Sarpanch held by the petitioner no.1 is concerned, it is not in dispute that in view of the order of disqualification of the petitioner no.1 passed by the learned Additional Divisional Commissioner, the Gram Panchayat has already held fresh election for the post of Sarpanch and has already ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 37 wp-14073.17 (j).doc appointed Smt. Ujjwala Uttam Phadtare. The petitioners have though impleaded the said Smt.Ujjwala Uttam Phadtare as the respondent no.14, the petitioners have already deleted her name from the cause title of the petition subsequently. The appointment of the said Sarpanch has not been challenged by the petitioners. By virtue of the order passed by the learned Additional Divisional Commissioner, the petitioner no.1 was disqualified as a member of the Gram Panchayat. On 13th September 2017, itself the learned Tehsildar, Indapur had directed to hold election for the post of Sarpanch of Village Panchayat, Kalamb. The writ petition was admitted by this Court on 19 th September 2017. The new Sarpanch was elected on 20th September 2017.
59. In so far as the candidates who have filed nomination forms, they have adopted the submissions made by Mr.Dani, learned senior counsel for the respondent nos.5 and 6. In so far as the submission of the learned counsel for the respondent nos.7, 9, 10 and 13 that two of the candidates who had filed nomination forms in the seats reserved for Scheduled Casts category, their elections cannot be set aside by this Court is concerned, the result of those two candidates are not declared so far. I am thus not inclined to accept the submission of the learned senior counsel for the respondent nos.5 and 6 that the respondent nos.9 and 10 ::: Uploaded on - 05/03/2018 ::: Downloaded on - 06/03/2018 00:24:54 ::: ppn 38 wp-14073.17 (j).doc having been elected unopposed and thus their appointments cannot be set aside by this Court even if those two candidates who were from the reserved category out of the four petitioners and the order of disqualification, in so far as those candidates are concerned, are set aside by this Court. The authority would consider the effect of this order setting aside the disqualification order of the petitioner nos.1 and 4.
60. I therefore pass the following order :-
(i) The impugned order passed by the learned Additional Divisional Commissioner, Pune on 5th August 2017 in Appeal No.2 of 2017 is set aside in so far as the petitioner nos.1 and 4 are concerned.
Petition is partly allowed to this extent.
(ii) In so far as the petitioner nos.2 and 3 are concerned, the order passed by the learned Additional Divisional Commissioner, Pune in appeal filed by the petitioner nos.2 and 3 is upheld and the petition is dismissed.
(iii) Rule is made partly absolute in aforesaid terms.
(iv) Parties to act on the authenticated copy of this judgment.
R.D. DHANUKA, J.
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