1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. The petitioner who stands disqualified from continuing as member of the Gram Panchayat under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 (for short, the said Act) lays challenge to said adjudication.
3. The petitioner was elected as member of the Gram Panchayat in the elections that were held in October, 2012. It is her case that she was residing along with her father and other family members at house property bearing House No.134, situated at Dudhala which property stands in the name of her father. The respondent No.6 filed an application under provisions of Section 14(1)(j-3) of the said Act praying that the petitioner be disqualified on the ground that encroachment on public land had been made with regard to construction of property bearing House No.134. The petitioner filed a reply stating that the house in question was owned by her father and that she was residing as a member of the family therein. It was stated that as the petitioner was not responsible for said encroachment, she was not liable to be disqualified
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4. The Additional Collector, Nagpur came to the conclusion that there was an encroachment committed in respect of property bearing House No.134 and though it was the case of the petitioner that the house property belonged to her father, in view of the judgment of the Division Bench in L.P.A. No.305/2012 – Devidas M. Surwade Vs. Additional Commissioner, Amravati and others dated 31-7-2012, the petitioner was liable to be disqualified under provisions of Section 14(1) (j-3) of the said Act. Being aggrieved, the petitioner filed an appeal before the Additional Commissioner. By judgment dated 22-9-2014, the Additional Commissioner recorded a finding that though the encroachment in question was committed by the petitioner's father, as the petitioner was residing along with her father at House No.134, she was also liable to be disqualified. Hence, the appeal came to be dismissed and the order passed by the Additional Collector was maintained.
5. Shri B. S. Dhandale, learned Counsel appearing for the petitioner submitted that having regard to the finding recorded by both the Authorities that the house in question was standing in the name of the father of the petitioner, she could not have been disqualified under provisions of Section 14(1) (j-3) of the said Act. It was vehemently urged by the learned Counsel that only if the person elected as a member commits encroachment that such member is liable to be disqualified and if such encroachment is found to be committed by a member of the family, such member cannot be disqualified. In that regard, the learned Counsel placed heavy reliance on the decision in Writ Petition No.8497/2012 Yallubai Kamble Vs. State of Maharashtra decided on 5-10-2012 wherein it was held by learned Single Judge that the expression 'person' would not include members of the family. He also relied upon judgments in Kanchan Shivaji Atigre vs. Mahadeo Baban Ranjagane & Ors. 2013(1) Mh.L.J. 455 and Ganesh Arun Chavan vs. State of Maharashtra & Ors. 2013(2) Mh.L.J. 955. He, therefore, submitted that it was a settled position that if the encroachment is committed by a person who is not elected as a member of the Gram Panchayat, the disqualification would not be attracted. He also relied on the decision in Sandhya Hemant Salunke vs. State of Maharashtra and others 2014(5) Mh.L.J. 946 in that regard. He then submitted that the judgment of learned Single Judge which was rendered after considering the decision of the Supreme Court in Gulam Yasin Khan Vs. Sahebrao Yeshwantrao Walaskar, 1966 Mh.L.J. 269(SC) should be preferred to the judgment of the Division Bench in Devidas Surwade (supra) as said judgment of the Division Bench has construed the expression 'person' in wide terms. Therefore, according to the learned Counsel, the judgment of the Division Bench in Devidas Surwade (supra) would not be a binding precedent and for said proposition the reliance was placed on the judgment of the Special Bench in the case of State of Maharashtra and others Vs. Murarao Malojirao Ghorpade & ors. 2009(6) Mh.L.J. 788. He, therefore, submitted that the impugned orders deserve to be set aside and the disqualification be held to be illegal.
6. Shri Sudhir Malode, learned Counsel appearing for the respondent No.6 supported the impugned judgments by relying on the judgment of the Division Bench in Devidas Surwade (supra). According to him, the disqualification as ordered did not call for any interference. Shri S. M. Bhagde, learned Assistant Government Pleader also relied on the judgment of the Division Bench referred to herein above and supported the impugned orders.
7. I have carefully considered the respective submissions and I have gone through the documents filed on record. Perusal of the impugned orders indicate that a finding has been recorded that House No.134 stands in the name of the petitioner's father and that the petitioner was residing along with him. The finding that House No.134 stands in the name of the petitioner's father is not under challenge. The challenge is based on very same finding that as the encroachment was at the behest of the petitioner's father, the daughter could not be disqualified under provisions of Section 14(1)(j-3) of the said Act.
8. The learned Single Judge in Ganesh Chavan (supra) found that the encroachment therein was by the father of the elected member. It was held that by interpretative process it would not be possible to include in the provisions of Section 14(1)(j-3) of the said Act disqualification of an elected member on account of encroachment by his family members. Said view has been reiterated in Yallubai Kamble (supra) and it has been held that the elected member therein could not be disqualified on account of encroachment committed by her husband. Reference was also made to the decision of the Supreme Court in Gulam Yasin Khan (supra) which considered the expression 'own such share and interest' and after considering the definition of the term 'person' in The Law Lexicon it was observed that the definition of the term 'person' was not decisive and therefore as per provisions of Section 14(1)(j-3) of the Act it was only if the elected member was guilty of encroachment that the disqualification would be attracted. Similar view has been taken in Kanchan Atigre (supra) where the encroachment was allegedly by a member of the family. These decisions have been referred to in Sandhya Salunke (supra) and following said ratio it has been observed that encroachment at the behest of family members but not identified to be at the behest of the elected representative cannot be attributed to her conduct.
9. The Division Bench in Devidas Surwade (supra) was considering the case of an elected member who was disqualified on the ground that he was residing in House No.168 which was constructed by his father which resulted in some encroachment. The disqualification was challenged on the ground that it was not the elected member who had committed the encroachment, but the same was by his father. The Division Bench while considering the aforesaid challenge has observed in paras 4 & 5 as under;
'4. We have heard the learned counsel for the appellant. On the facts described by the learned counsel for the appellant, we find that the State Legislature while enacting the said provision fully accepted the Statement of Objects and Reasons in respect of the said particular provision regarding encroachment on the Government properties. The Statement of Objects and Reasons states that the person, who has encroached on the Government property, shall not only be disqualified to be a member of Gram Panchayat, but also the disqualification shall be attached to such person till his tenure. In other words, on such disqualification the member can be disqualified and thus removed.
5. We find that there is a definite object in making the said amendment to the provisions of disqualification and the object is that one, who encroaches upon the Government land or the Government property, cannot make any claim to represent the people by becoming an elected member of the Gram Panchayat. The term person in the said amended provision has to be interpreted to mean the legal heirs of such person, who has encroached and continues to occupy the Government land or the Government property, his agent, assignee or transferee or as the case may be. If such an interpretation is not made in the said provision, the result would be absurd in the sense that the Government land would continue to remain encroached and the legal heirs or the assignees or the transferees remaining on such encroached Government land shall claim the right to get elected as a member of democratically elected body. In no case our conscious permits such type of interpretation to defeat the very object of the Bombay Village Panchayats (Amendment) Act, 2006.'
The submission that the encroachment should be by the elected member himself to attract the disqualification was not accepted and encroachment at the behest of a family member was also treated as sufficient to attract disqualification.
10. The judgment of the Division Bench in Devidas Surwade (supra) was delivered on 31-7-2012 and prior to the judgments of learned Single Judge in Ganesh Chavan (supra) dated 24-9-2012, Yallubai Kamble (supra) dated 5-10-2012, Kanchan Atigre (supra) dated 12-10-2012. The judgment of the Division Bench was not brought to the notice of learned Single Judge when said decisions were rendered. Moreover, the judgment of the Division Bench in Devidas Surwade (supra) on which reliance has been placed by the learned Counsel for the respondents indicates that the Statement of Objects and Reasons have been taken into consideration after which it has been observed that the term 'person' in the amended provisions would have to be interpreted to bring legal heirs of a person who has encroached and continues to occupy Government land within its purview. The reasons for interpreting said provisions have thereafter been stated in para 5. The contention raised on behalf of the petitioner that instead of the judgment of the Division Bench in Devidas Surwade (supra), the view as taken by the learned Single Judge In Yallubai Kamble and Kanchan Atigre (supra) which interprets the expression 'person' in an narrow sense should be preferred cannot be accepted. The judgment of the Division Bench binds this Court the same will have to be followed. The reliance sought to be placed on the ratio of judgment of the Special Bench is misplaced. The decision in Devidas Surwade (supra) being that of the Division Bench and the expression 'person' having been duly considered, it is not permissible for this Court to go into the question as to whether the ratio of judgments of learned Single Judge should be followed instead of the view taken by the Division Bench. The ratio of the judgment of the Division Bench will have to be respectfully followed. Hence, for aforesaid reasons, the submissions made on behalf of the petitioner cannot be accepted.
11. As the impugned orders have been passed on the basis of judgment of the Division Bench in Devidas Surwade (supra), no fault can be found with the impugned orders. The writ petition is, therefore, dismissed. Rule stands discharged with no order as to costs.
12. At this stage learned Counsel for the petitioner prays for continuing the interim relief that has been operating. In the facts of the present case, the ad interim relief granted on 19-11-2014 shall continue to be in operation for a period of eight weeks from today. Order accordingly.