Oral Judgment:
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
4. The petitioner is elected as Member of Walwadi Gram Panchayat in the elections held in 2010. The term, as a Member, is to last for five years. The petitioner, thereafter, contested the elections for the position of Sarpanch of Gram Panchayat and was elected as such.
5. Respondents 5 and 6, defeated candidates, lodged a complaint against the petitioner on 20.7.2012 alleging encroachment. It was numbered as Gram panchayat Dispute No.13 of 2012. The said complaint was heard by the Additional Collector. By an order dated 8.10.2012, the Additional Collector was pleased to hold that the complaint had no merits. It was concluded that the petitioner had not encroached upon the public premises or the Government land and had, therefore, not incurred a disqualification, as a Member of the Gram Panchayat, as contemplated under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958 ("the Act of 1958").
6. The order of rejection of the complaint was carried by respondents 5 and 6 to the Divisional Commissioner, Nasik by filing Appeal No.158 of 2012. The Additional Commissioner, under the delegated powers, has decided the said appeal on 12.3.2012, which was partly allowed. The order of the Additional Collector, Dhule was quashed and set aside and the matter / complaint was remitted back to the Additional Collector for being decided afresh.
7. The said complaint having been remitted back to the Additional Collector, was decided by the judgment dated 12.6.2013. The said dispute was renumbered as Gram Panchayat Dispute No.2 of 2013.
8. The Additional Collector while deciding the Gram Panchayat Dispute No.2 of 2013 had concluded that the Sub Divisional Officer had not recoded the statements of the localites in surrounding areas as regards the alleged encroachment. There was no measurement of the encroachment. The house, adjacent to the open space, belongs to Sau. Sindhubai, who was owner of the property and had a title to the said property. Sau. Sindhubai is mother-in-law of the petitioner. The panchanama was carried out and it has been reported that there is no encroachment / construction in that area.
9. The property bearing S.No.139/2A belonged to said Sau. Sindhubai in the Gram Panchayat Walwadi. Taking into consideration the explanation submitted and the panchanama carried out, it was concluded that there was no encroachment and as such by adducing reasons, the Additional Collector had rejected the complaint. He had also taken into account the ration card of said Sau. Sindhubai as well as ration card of the husband of the petitioner. The petitioner in her individual capacity does not have a ration card. It was also observed that the report submitted by the Sub Divisional Officer was without hearing either the petitioner or Sau. Sindhubai.
10. Being aggrieved by the said judgment of the Additional Collector, respondents 5 and 6 carried the matter in appeal before the Divisional Commissioner, being Gram Panchayat Appeal No.51 of 2013. Under delegated powers, the Additional Commissioner, Nasik decided the said matter, by its judgment and order dated 15.11.2013, which is impugned in this petition.
11. The said authority has drawn its conclusions which are from page No.26 of the petition paper book. Said conclusions can be summarized as follows:-
(a) The wall erected as a compound to cover the open space has been constructed by Shri Salunke.
(b) By the construction of the said compound wall, Shri Salunke has an intention of keeping the open space under his possession.
(c) By covering the open space with the compound wall, intention is to use the house and the open space for personal use (though it is not mentioned as to who desires to use it as a "personal property").
(d) The gate was installed in the said compound wall and the father of Shri Hemant Salunke had handed over the keys for opening the said compound wall. This indicates that the petitioner and her family intends to use the said area.
(e) The lawn and the plants in the compound wall are nourished with water using drip irrigation system, which was not installed by the Gram Panchayat.
(f) The Sub Divisional Officer has submitted a report to favour Shri and Sau. Salunke and therefore, he needs to be subjected to disciplinary proceedings.
(g) It is, therefore, clear that Sau. Salunke and her family intended to keep the land in their possession.
(h) The title and ownership of the property is recorded in the name of Sau. Sindhubai. Sau. Sindhubai has a separate ration card and so does Shri Hemant Salunke, one for his family members.
(i) The documents pertaining to the Survey Number of the said plot and ownership are available in the official record and 7/12 extract which indicate that they are in the name of Sau. Sindhubai.
(j) Shri Hemant Salunke has taken a loan from Hasti Cooperative Bank Ltd. Dondaicha Branch, Sindhkheda, for an amount of Rs.20,00,000/- and for which the said house has been mortgaged.
12. It is on the basis of the above mentioned conclusions that the Additional Commissioner has concluded that the encroachment has been carried out by the petitioner alone and she alone needs to be held responsible for the said encroachment. Based on these conclusions, the appeal was allowed, the judgment of the Additional Collector was set aside and it was held that the petitioner has incurred disqualification as a Member of the Gram Panchayat. It may be noted that during the pendency of this litigation, the petitioner, in the submissions of Shri Hon, learned Advocate, resigned out of frustration as a Sarpanch and she claimed to be fed up with this litigation.
13. Shri Hon, learned Advocate has relied on the judgment of this Court in the case of Shantaram Narayan Raut Vs. Additional Collector, Nashik [2012(6) Mh.L.J. 790]. He has drawn my attention to the conclusions of this Court, which are from paragraph Nos.24 to 27. The said paragraphs reads thus:-
"24. In the instant case, what one finds is that the allegation is that Survey No.626 is a private land. That certain portion therein has been earmarked as open space. Pertinently such earmarking is in a layout which is stated to be either prepared or submitted for sanction or approval or approved or sanctioned. Nonetheless it relates to a private property. It is equally true that the planning laws relied upon in this case or otherwise, mandate the keeping of certain spaces as open and unbuilt so as to ensure free and smooth flow of air and ventilation. That by itself does not mean that such spaces, which may be also utilized for recreation purposes, can be termed as belonging to the Government or local authority or are public properties straightway.
25. The public property is one to which the members of public have free and unrestricted access. That place or land or property may not be owned by the Government or local authority, but if it belongs to or is donated or granted or allotted for use of the members of public, then, it is broadly understood as public property. The open space in the village meant for use by the public or members of public or villagers is certainly a public property, but if that concept is to be extended to spaces which are earmarked as open but in a private land that would mean that the earmarking or designation makes it a public property. It is a public property and can be termed as such without any acquisition by the Government or the local authority. That would mean that by mere earmarking or designation such properties vest straightway in the State.
26. Way back in 1994 and to be precise while dealing with Civil Appeal No.319/1976 decided on 26.10.1994 (Pt. Chet Ram Vashist (dead) by L.Rs. v/s Municipal Corporation of Delhi reported in AIR 1995 SC 430), a Two Judge Bench of the Hon'ble Supreme Court held that designation, earmarking, reservation of spaces for public purposes is permissible in cases of lands and layouts, which are private. What the Hon'ble Supreme Court holds is that "reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in the nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But, the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law. Thus, by a mere resolution these lands could not be transferred and there has to be sanction for the same in law.
27. If the concept is understood thus, it would become at once clear that any open spaces, being carved out in a private layout, are meant to be kept open by the owners and that cannot be built upon. It has to be kept open and may be utilised for recreational or such other activities. For such spaces to be termed as public properties, something more needs to be done in law so as to vest them in State for the use and benefit of public. That requires a sanction in law. If one were to straightway assume based on the contents of the report of the Circle Officer or the Town Planner that even such spaces in a private layout are not meant to be utilized by the private owners and therefore, are capable of being taken over by the local authority or local body, then, that would introduce an element of uncertainty and in a given case, disqualify persons who are duly elected members not for any unlawful act on their part. In these circumstances to hold on the basis of the reports submitted by the officers in this case that there is encroachment on the Government land or public property, would be extremely risky and hazardous. That is certainly not the intention of the Legislature in providing for disqualification of persons for being elected as members of the Village Panchayat or to continue as members upon election. If that had been the intent, that would have been specified clearly and unequivocally. If the term Government land or public property is understood in common parlance and in the context referred to above, then, it is clear that the Petitioner who is allegedly guilty of having encroached on open space in a private layout by permitting construction of tin sheds thereon, cannot be disqualified for having encroached on a Government land or public property. The wrongful acts committed by the Petitioner on his private land and property can be dealt with under other laws. The wrongful acts, if any, committed can be sternly and strictly dealt with in accordance with law. All that is meant is that even an elected member is answerable to law and if he has committed any unauthorised or illegal act even in a private property, he can be either prosecuted or penalised."
14. Shri Hon, learned Advocate, therefore, submits that it has to be a clear and undisputed conclusion that an encroachment has been carried out by the elected person. The land ought to be either a public property or a Government land. Paragraph No.25 of the judgment in the case of Shantaram (supra) clearly lays down, as to which area of land / property can be said to be a public property. Members of the public need be given a free and unrestricted access to such property so as to term it to mean a "public property". The Government lands or property or land owned by the local authority has also been considered and defined in the said paragraph. Shri Hon, therefore, contends that there has been no such conclusion drawn which could unequivocally prove that the petitioner herein has carried out the encroachment and is individually held accountable for the said encroachment.
15. Shri Hon, learned Advocate has then relied upon the judgment of this Court in the case of Kanchan Shivaji Atigre Vs. Mahadev Baban Ranjagane [2013(1) Mh.L.J.455]. He has drawn my attention to paragraph Nos.14 and 15 of the said judgment, which read as under:-
"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 and 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)(j3) 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)(j3).
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 IA 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)(j3), 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 unauthorized 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. It is, therefore, canvassed that in order to attract a disqualification under Section 14(1)(j3) of the Act of 1958 any encroachment which is not conclusively attributed to the conduct and actions of an elected individual and which could be at the behest of certain family members, can not, therefore, be attributed to the elected individual.
17. He, therefore, states that even in this case, it is undisputed that the property is owned by Sau. Sindhubai and the Government record clearly indicates her title and ownership in the said property. Even if it is assumed that the family of Sau. Sindhubai and family of the petitioner reside together in the same house, there are other adult male members in the family. The husband of the petitioner has also obtained loan and the said house property has been mortgaged. In this situation, there is no evidence on record to suggest that the petitioner alone could be held liable and responsible for the said encroachment.
18. Shri Hon, therefore, submits that only because the petitioner is an elected member of the Gram Panchayat and her election has resulted in the defeat of respondents 5 and 6 that they are hounding her. In these circumstances, allegations by respondents 5 and 6 and the nature of the evidence on record cannot be taken to be a conclusive proof that the encroachment, if any, is attributable only to the conduct and actions of the petitioner, who is otherwise a housewife, notwithstanding the fact that there are other adult members in the family. He has, therefore, prayed that the impugned judgment and order deserves to be quashed and set aside.
19. Shri Hon, learned Advocate has further contended that in the event this Court is inclined to remand the matter for a fresh adjudication, having suffered two adverse orders of the Additional Commissioner, who has acted under the delegated powers, he submits that the matter be relegated to any other Divisional Commissioner, either at Nasik or at Aurangabad or at any other place. I would advert to and deal with this contention in the later part of this judgment.
20. Learned AGP appearing for the State authorities submits that the impugned judgment is well reasoned. The available record before the competent authority has been duly considered. Contentions of both the sides have been heard and considered in proper perspective. The conclusions are based on the oral and documentary evidence before the concerned authority and is supported with cogent reasons. He, therefore, contends that the impugned judgment does not deserve to be interfered with. He has drawn my attention to the affidavit in reply filed on behalf of respondents 2 and 3 to support his contentions.
21. Shri Sawant, learned Advocate for respondents 5 and 6 has strenuously contended that the impugned order can neither be said to be perverse nor unsustainable. He submits that, in fact, the judgment of the Additional Collector was unsustainable and which has rightly been set aside. He has drawn my attention to the conclusions drawn by the appellate authority on page No.24, wherein the said authority has set out the conclusions based on the record.
22. Shri Sawant, learned Advocate, therefore, submits that it was proved that the said open space bearing S.No. 130-2A was an open space and was meant for the utilization of the public at large. The free and unrestricted access to the said land has to be by the public and for the public. They were prevented from using it by the encroachment caused by the petitioner herein. He has also drawn my attention to the attending circumstances, which have been considered by the appellate authority. He, therefore, strenuously submits that the impugned judgment does not require any interference. The petitioner, solely has to be held responsible for the encroachment, which has been conclusively proved to be on the open space.
23. He, therefore, states that the petition is devoid of merits. A person like the petitioner elected by the people has to be a role model and should not be allowed to resort to illegality which would send a wrong signal to the public at large, inasmuch as would result in violation of the laws applicable. However, he has fairly stated that in the conclusions on page Nos.26 till 28, the name of the petitioner has not been mentioned. Reference has been made to Shri and Sau. Salunke without identifying who that "Sau. Salunke" could be. Attributes have been made to Shri Hemant Salunke, who happens to be the husband of the petitioner and that the loan has been obtained by Hemant Salunke and not by the petitioner. However, he clarifies that even if this ambiguity may appear in the said reasoning, the meaning necessarily can be gathered to identify the petitioner as being solely responsible for the encroachment.
24. Having considered the submissions of the learned Advocates and having gone through the petition paper book with their able assistance, I am unable to accept the submissions of learned AGP and Shri Sawant, learned Advocate. The appellate authority was expected to support its judgment with a conclusive findings, if it was to set aside the judgment of the Additional Collector, (from page No.26 onwards), which according to the appellate authority are his conclusions based on the record and submissions of the rival sides. The least that was to be expected is that he should have adduced reasons and should have identified the petitioner to be held exclusively and solely responsible for the misdeeds alleged against her.
25. Point Nos.1 to 7 on page Nos.26 to 28 of the petition paper book, which happen to be the conclusions drawn by the appellate authority, in my view, are vague in nature since this is a case wherein an elected representative, elected by following the rule of democracy, is sought to be unseated and disqualified for certain acts which even the appellate authority has not been able to clearly identify.
26. The view taken by this Court in the cases of Kanchan (supra) and Shantaram (supra) are squarely applicable. An encroachment, at the behest of certain family members and not having been identified to be at the behest of the elected representative, cannot be attributed to her conduct. This Court has, therefore, taken a view that even if the father of the concerned person as like in the case of Kanchan (supra) has resorted to encroachment, the same cannot be attributed to the elected representative, who happened to be a member of the family only because she is related to the family and resides in the said premises. Same has been the view in the case of Shantaram (supra).
27. However, I am in agreement with the submissions of Shri Sawant, learned Advocate for respondents 5 and 6 that paragraph No.25 of the Shantaram's judgment (supra) clearly defines as to what is what is public property and Government land.
28. In this view of the matter, I find that the impugned judgment suffers from deficiencies and ambiguities. An elected member is sought to be disqualified on the basis of presumptions, surmises and conjectures. The view taken by this Court in the cases of Shantaram and Kanchan (supra) do not permit such an approach. In this view of the matter, the impugned judgment deserves to be quashed and set aside.
29. However, I find from the record that it needs to be identified as to whether the encroachment is at the behest of the petitioner herself in her individual capacity. It also needs to be identified as to whether she and her husband Shri Hemant Salunke reside in the same property or reside separately. The rival submissions are before this Court as they were before the appellate authority. The appellate authority needs to consider all these issues and decide the matter. I am, therefore, inclined to remand the matter back to the appellate authority for fresh hearing and for a proper conclusion.
30. In this situation and in the light of the submissions of Shri Hon, learned Advocate that the matter be relegated to any other authority or to any other Divisional Commissioner, Shri Sawant, learned Advocate submits that instead of remanding this matter to any other Divisional Commissioner, which is likely to consume time and cause delay in hearing of the matter, the Divisional Commissioner of Nasik himself may be requested to decide the matter. The learned AGP submits that if this Court so directs, there shall be no impediment for the Divisional Commissioner to decide the matter.
31. In the light of the above, the Writ Petition is allowed with the following directions:-
(A) The impugned judgment of the appellate authority, dated 15.11.2013, is quashed and set aside.
(B) The Gram Panchayat Appeal No.51 of 2013 is relegated back to the Divisional Commissioner, Nasik Division, Nasik who shall himself decide the matter without delegating authority to the Additional Commissioner, Nasik.
(C) It is expected that the Divisional Commissioner, Nasik will decide the Gram Panchayat Appeal No.51 of 2013 by resorting to such exercise as is permissible in law in order to arrive at a conclusive findings based on the record before it.
(D) In view of the pendency of this litigation, which has originated in 2012, the Divisional Commissioner, Nasik is expected to decide this matter as expeditiously as possible and preferably within a period of four months from today.
(E) Both the parties shall appear before the Divisional Commissioner, Nasik in the said appeal proceedings on 2.6.2014. Separate notice, therefore, need not be issued to the litigating parties by the Divisional Commissioner, Nasik.
(F) All contentions of the parties are kept open.
32. Rule is made absolute accordingly. Needless to state, interim relief granted earlier merges in this order. No order as to costs.