wp4605-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4605 OF 2011 Sau. Sangeeta Kumbhar & Ors. .. Petitioners Versus Atmaram Balu Jadhav & Ors. .. Respondents Ms.Tejsweeta Kadam i/b. Rahul Kate for petitioners Mr.Vinod Jadhav for respondent No.1 Mr.R.M.Patne, AGP for respondent Nos.8 and 9 CORAM : S.C.DHARMADHIKARI, J. DATE : 26th July 2011. P.C.: 1] By this petition under Articles 226 and 227 of the Constitution of India, the petitioner who has been disqualified from continuing as a Member of the subject Panchayat has challenged the orders dated 9th may 2011 and 20th October 2010 made respectively by the Commissioner/ State Government and the Collector, Pune. 2] It is the case of the petitioner that she contested the wp4605-11.doc 2 elections for the post of Member of Gram Panchayat, Ainwadi. She was elected. Thereafter, she became Sarpanch. Respondent No.2 was elected as Upa-sarpanch and respondent No.3 was elected as Member. 3] Respondent Nos. 1 to 7 applied to the Collector stating that the petitioner is the wife of one Ravindra Pawar. The said Ravindra Pawar is serving as Water Supplier in the panchayat and he draws salary from the said employment. Thus, her husband being employed with the Panchayat, there is direct nexus and interest in the income of the husband and, therefore, the petitioner is disqualified. 4] It is then alleged that the petitioner has illegally constructed a house on Gat No.77-A which is a forest Mulkipad land through Indira Awas Yojana, thereby she has encroached on Government land. It is alleged that the house is numbered as 582 and is entered in the relevant 8A extract. It is also alleged that the petitioner fraudulently assisted her brother in wp4605-11.doc 3 law Mr.Hanuman Kumbhar to encroach on the land adjacent to Gat No.79A. The said houses have been entered in the 8A extract as Gat No.583 and 610 in the names of Hanuman Kumbhar and Rajendra Kumbhar. 5] The Collector upon receipt of this application invited the petitioner to give her version. Accordingly, the petitioner denied all the charges and allegations by filing her written reply. She has stated that as far as Gat No.79-A is concerned, she has not encroached on the same nor it is a forest Mulkipad land. In other words, by pointing out that even prior to the year 2001, Gat No.79-A was utilised for implementing Indira Awas Yojana for homeless persons. One of the plot holders Bhagwan Vaidande, presently residing at Yevalewadi, approached the petitioner and informed that he is going to reside permanently at Yevalewadi and, therefore, in the year 2001 he transferred an area of 33 x 33 sq.mtrs., in the name of petitioner. It has been pointed out that on the consent letter in that behalf, the original applicant No.1 (Respondent No.1 wp4605-11.doc 4 herein) Atmaram Jadhav has signed as witness. Thus, the forest Mulkipad land may be Government property, but there is no encroachment thereon by the petitioner. Long back this land was divided and plots have been created. Every plot admeasured about one guntha and on this one guntha houses were constructed by the allottees. Therefore, when the house was being constructed the Range Forest Officer, Khanapur indicated that there is an encroachment. The petitioner disputed the fact that there is any measurement or map of the Forest Land. Where the forest starts and ends and from which point the scheme for housing homeless was implemented and allotment of plot for which the permission to construct has been given, are all matters which are not within the domain of the Forest Authority. The Forest Authorities have not even supplied the site maps to her. She has denied all the contentions with regard to the encroachment and that is how her written reply and particularly paras 3 to 5 read. 6] She has on the other hand, very clearly stated that wp4605-11.doc 5 during her term of Sarpanch she has been abiding by the rule of law. Since she does not tolerate any illegal acts, the applicants are against her. They have even threatened her from time to time. Merely because she does not tolerate illegal acts of the applicants, that they have decided to remove her. In such circumstances, there is no substance in any of these allegations and she should not be disqualified. 7] The Collector, before whom the matter was placed came to a conclusion that in terms of Section 14(1)(g) of the Bombay Village Panchayat Act, 1958, the petitioner stands disqualified. Her husband Sanjay @ Ravindra is employed in the Gram Panchayat as Water Supplier. This fact was never disputed by the petitioner. Therefore, relying upon the judgment of this Court reported in 77 BLR 533 (Dattatraya Narhar v/s Vibhakar) and section 14(1)(g) of the Act, he proceeded to disqualify her. It is stated that explanation (4) below the said section will not be applicable because the person in employment is her husband. wp4605-11.doc 6 8] Insofar as the encroachment is concerned, the Collector has held that the house has been constructed by encroaching on Gat No.79-A. He has also relied upon a criminal case which has been filed against the husband of petitioner. 9] Aggrieved by the order of Collector, the matter was carried in appeal before the State Government and the Divisional Commissioner confirmed the said findings. A perusal of the order passed by the Commissioner reveals that he merely reiterated and reproduced the findings and conclusions of the Collector. 10] It is contended by Ms.Kadam, appearing for the petitioner, that the petitioner No.1 cannot be said to be disqualified. She submits that as far as the employment of her husband in Village Panchayat is concerned, the Commissioner and Collector both overlooked the explanation below the clause wp4605-11.doc 7 (g) of sub-section 1 of section 14 of the Act. She submits that the said explanation is clear inasmuch as what it seeks to clarify and state is that for the purpose of clause (g) a person shall not be deemed to have any share or interest in any employment by reason only of any relation of his being employed with or under a panchayat as an officer or servant thereof. Therefore, the disqualification which is incurred by being directly or indirectly by himself or by 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 is not disqualification in this case. She submits that reliance upon the Full Bench decision of this Court in Dattatray Narhar Vs. Vibhakar, reported in 77 BLR 533 is misplaced. There, the enactment involved therein was the Maharashtra Municipalities Act, 1965. It is nobody's case that there was any explanation in the said enactment which is on par with section 14(1)(g) explanation (iv) hereto. In these circumstances, reliance upon this judgment was clearly misplaced. As far as encroachment on the land is concerned, wp4605-11.doc 8 she submits that, that allegation also has not been proved. The disqualification is incurred by encroaching upon Government land or public property. Therefore, the pre-requisite is that there is a government land or public property involved. Then, it should be determined as to whether the member has encroached upon the same. Hence, whether the land is a Government land or public property and whether there is an encroachment thereon by the Member are essential pre- requisites and pre-conditions inviting and incurring disqualification. If they are not satisfied, then, there cannot be any disqualification. In the instant case, what has been alleged is that the land has been incurred upon by the husband of the petitioner by constructing house thereon and in the land records name of the petitioner is also appearing as owner of the house. However, what is overlooked is that the land is not a forest land but the land has been made available under Indira Niwas Yojana for construction of houses for weaker sections and homeless people. There was one allottee Shri Waidande under such scheme. That allottee has permitted the petitioner wp4605-11.doc 9 and her family to use and occupy a portion of the allotted land under the scheme. Since under the Indira Awas Yojana, a house could be constructed on the subject land, it has been so constructed and assessed in the records. Therefore, it is not as if the allotment in favour of the petitioner or her predecessor under such a scheme is that of a Government land. If the land is allotted and on which house has been constructed, then, there is no encroachment at all. For these reasons, therefore, the disqualification on both counts is unsustainable in law. 11] On the other hand, Mr.Jadhav, learned Advocate appearing for respondent Nos. 1, 2 and 4 to 6 supported the impugned orders by contending that on both counts petitioner stands disqualified. He further states that the reliance placed on the judgment of this Court was appropriate and in fact the explanation (iv) cannot be of any assistance to the petitioner. He, therefore, prays that the petition be dismissed. 12] With the assistance of the learned Advocates for both wp4605-11.doc 10 sides, I have perused the impugned orders. I have also carefully perused the provisions under which the petitioner is sought to be disqualified. It is clear that the petitioner is an elected member of the Gram Panchayat and the elections were held in the year 2007. Thereafter, she has been elected as Sarpanch. The petitioner is sought to be disqualified on two counts. On first count she is disqualified allegedly because she is directly or indirectly having a share or interest in the husband’s employment with or by a panchayat as an officer or servant thereof. Earlier part of this clause is inapplicable in this case. The explanation (4) states that a person shall not be deemed to have any share or interest in any employment by reason only of any relation of his being employed with or under a panchayat as an officer or servant thereof. The husband of the petitioner is employed as Water Supplier with the Ainwadi Gram Panchayat. It is, therefore, alleged that in her husband’s job she has a share or interest. Her husband receives salary from Panchayat funds in which she has a share or interest. They are both residing together. Therefore, she is disqualified. wp4605-11.doc 11 However, explanation (4) clarifies the position that a person shall not be deemed to have any share or interest in any employment by reason only of relation being employed with or under the Panchayat as officer or servant thereof. Therefore, if the allegation is that the petitioner has any share or interest in the husband’s employment with or under the Panchayat, then, according to the explanation, she shall not be deemed to have any share or interest therein because she is his wife and he was employed with or under the Panchayat. Therefore, if the share or interest in the employment of her husband is the only ground on which the petitioner is sought to be disqualified, then, the earning or income of the husband from such employment was not enough to disqualify her by virtue of this explanation (4). This explanation has been clearly overlooked. The Collector has gone as far as stating that this explanation has no application in the petitioner's case. He places reliance upon a Full Bench decision reported in 77 BLR 533 (supra). 13] A careful perusal of the Full Bench decision would wp4605-11.doc 12 reveal that it was rendered while construing section 16(1)(i) of the Maharashtra Municipalities Act. There is no reference to any provision or explanation as is found below sub-section 1 of section 14 of the Panchayat Act. Apart therefrom, the Court found that in that case, it was enough because the wife of the petitioner therein was employed as Head Mistress of the Municipal School conducted by Amravati Municipal Council. The word “employment” was missing from the said provision. What was found was that the word “Contract” would take within its import a contract of employment as well. In such circumstances, the petitioner before the Full Bench was held to be disqualified. Therefore, the employment with the Municipal Council constitutes a contract under which the Head Mistress, wife of the petitioner, is remunerated. In that remuneration, which is in the form of money, the petitioner had share or interest. In the instant case, once the word contract and the word employment are distinctly used in the clause and to cover different situations, then, the explanation should not have been overlooked. The reliance placed upon this decision was clearly wp4605-11.doc 13 misplaced as there was no such explanation nor the word “employment” was appearing in the provision under consideration of the Full Bench. 14] Having found that the only allegation is that the petitioner's husband is employed as a water supplier in the Panchayat and that in the salary and wages that he earns from the service or employment, the petitioner has a share or interest, then, the disqualification therefor is clearly ruled out, by virtue of the explanation and its wording. Once the sub- section and the clause (g) is read with this explanation, then, it is apparent that the Legislature did not intend to disqualify a member only because of employment of his/her relation in the panchayat. In these circumstances, disqualification of the petitioner on the first count cannot be sustained. 15] As far as allegations against the petitioner of having encroached on Government land is concerned, to my mind once again there is non application of mind. It is not clear as to wp4605-11.doc 14 whether the land can be termed as a forest land straight away in this case. The land is stated to be on the boundary of a certain plot or area on which Indira Niwas Yojana is being implemented. Under this scheme allottees are allotted specified and earmarked areas and portions for construction of house. If these allottees construct a house or if these allottees are allotted a portion of land for construction of such house and they transfer it allegedly to the family of the petitioner, would it mean that the petitioner has encroached upon Government land has not been clarified. Therefore, the essential pre- requisite whether the land is Government land or is public property has not been clearly established and proved. The second pre-requisite that the petitioner has encroached thereon has also not been demonstrated and proved. It is alleged that the Forest Officer has filed a criminal case alleging encroachment by petitioner and her family on forest land, which is a public property. Such criminal case is pending. It is now pleaded by the petitioner that from the criminal case all accused, including, petitioner's husband and petitioner are wp4605-11.doc 15 acquitted. The impact of all this on the disqualification proceedings is not for me to decide. First of all it must be decided clearly as to whether the petitioner has encroached on any Government land. The allegation that the petitioner's husband has encroached thereon and that her name is shown in the land records and record of rights as a holder along with her husband means she has also encroached upon the land, is difficult to accept straight away. It is for the original applicants to point out and for the Collector to determine the exact position. The portion which is stated to be in her possession and her family, is Government land or public property or whether there is substance in the contention of the petitioner that the allottee under the Indira Awas Yojana had handed over the portion or plot to her for construction, is a matter which will require in depth and thorough investigation. Ultimately, the charge of encroachment must be brought home in the sense, the legislature intends it. For these reasons, according to me, insofar as these allegations are concerned, it would be proper if one more opportunity is given to the original applicants to wp4605-11.doc 16 produce such material as is in his possession before the Collector and that the Collector to determine and decide the issue afresh. The petitioner as also the applicants can produce relevant materials in support of their versions and the Collector must decide as to whether the petitioner has incurred disqualification contemplated by clause 14(1)(j-iii) of the Act. That he must do by undertaking necessary enquiry and after summoning the persons concerned and calling for the required material from the Government departments. He must render a finding afresh on this aspect without being influenced by his earlier order and conclusion. He should not be influenced in any manner by the same but should determine this aspect in the light of the statutory provisions and observations made hereinabove. 16] In the result, the petition succeeds partially. The impugned orders are quashed and set aside. The matter is remitted back to the Collector for decision afresh on the issue as to whether the petitioner has encroached upon Government wp4605-11.doc 17 land or public property and that aspect/ issue should be decided as expeditiously as possible and within two months from the date of receipt of copy of this order. Needless to state that in terms of section 16(1) of the Act, the petitioner shall not be disabled from continuing as a member of the subject panchayat until the proceedings in terms of section 16(2) of the Act are concluded. Petition is partly allowed. No costs. (S.C.DHARMADHIKARI, J)