*1* wp.8381.10.912.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8381 OF 2010 Devidas Haribhau Patil. ..Petitioner -Versus- Lalita Ramkrishna Thakur and others. ..Respondents .......... Mr.C.G.Gavnekar, for the Petitioner. Mr.R.R.Salvi, for the Respondent No.1. Mr.R.M.Patne, AGP, for the Respondent Nos.2 to 4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 11th July, 2011. P.C.: 1 Rule. The Respondents waive service. By consent, Rule made returnable forthwith. 2 The Petitioner was elected as a Panch/member of Group Gram Panchayat, Dushmi, Thakurpada, Taluka : Pen, District : Raigad in the elections held in 2008 from Ward No.1. The Respondent No. 1 was also elected as such. During the term of office of the Petitioner, the Respondent No.1 filed an application seeking to disqualify the Petitioner on the ground that he has encroached upon the public property. The allegation is that having assumed his office as a member of the Group Gram Panchayat, the Petitioner got constructed “Samaj Mandir”. This construction was made from the funds of local Member of Legislative Assembly. These funds are made available to the members of the Legislative Assembly of the State Government. The said Samaj Mandir is not being used for the purpose for which the same has been constructed. The Petitioner has taken possession of the said Samaj Mandir *2* wp.8381.10.912.sxw and is using it for purely personal purposes. In these circumstances, the Petitioner has incurred disqualification because he has encroached on the government property which is also public property. For all these reasons, the Petitioner must be disqualified. This application was made on 18.06.2010. The Petitioner on receipt of this application filed his reply and pointed out that he cannot be said to be disqualified. All these allegations made against him are totally false. He cannot be said to have encroached on the government land or public property because the said Samaj Mandir has been used for the public purpose and public benefit. All that has been done therein is to establish and start a library. This is a public library. All residents are invited to contribute the books and other reading materials and even are participating in the affairs of library. The Petitioner pointed out that he has not been using this Samaj Mandir for any private purpose. The Petitioner has clarified in his reply that there is no encroachment by this act. For all these reasons, the Petitioner prayed that the application be dismissed. 3 The District Collector, however, held that the Petitioner stands disqualified under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958. The Petitioner has incurred disqualification because he has taken possession of the Samaj Mandir which is public property and he is using it as library. Once he is using this public property illegally, that means he has encroached on the public property. Therefore, the Petitioner stands disqualified. The Collector’s order is dated 11.08.2010. Aggrieved by this order, the Petitioner approached the Commissioner of Revenue Division who by order passed on 18.09.2010 confirmed the findings of the Collector. In these circumstances, the Petitioner has to approach this Court in writ jurisdiction. 4 Mr.Gavnekar, learned counsel appearing for the Petitioner, *3* wp.8381.10.912.sxw submitted that Section 14(1)(j-3) which has been inserted by the Bombay Village Panchayats (Amendment) Act, 2006 w.e.f. 21.12.2006 states that a member shall be disqualified to continue if he has encroached upon the government land or public property. Mr.Gavnekar submits that the act of the Petitioner cannot be termed as encroachment on the government land or public property. Sarvajanik Samaj Mandir remains a public property. Sarvajanik Samaj Mandir is open for public and it is nobody’s case that the same is encroachment. A part of the Samaj Mandir has been put to use as library by the Petitioner for public at large. It is not the case of the Respondent No.1 that this is a private library. A part of the premises/building being used as public library, it cannot be said that the Petitioner has encroached upon the government land or public property. Mr.Gavnekar submits that the disqualification is because of the encroachment. The act of the Petitioner in using a part of the building already constructed, which building is public property, as library, cannot be said to be encroachment on public property. It is not the case of the Respondent No.1 that the building is constructed by the Petitioner by encroaching on the government land. The building was already existing and it is the government land on which the building has been constructed from the public funds of the local M.L.A.. Therefore, if only part thereof is being used by the Petitioner as a public library, then, he cannot be said to be disqualified for having committed encroachment. For these reasons, both the orders are vitiated by error apparent on the face of record and deserve to be set aside. 5 On the other hand, Mr.Salvi, learned counsel appearing for the contesting Respondent No.1 and the learned AGP supported the impugned orders. They contended that the Petitioner has been putting a part of the building for use as library. Once he is using that without any *4* wp.8381.10.912.sxw permission, then, it is clear case of encroachment. For all these reasons, he has rightly been disqualified and there is no substance in the contentions of Mr.Gavnekar. Resultantly, the petition deserves to be dismissed. 6 It is clear from reading of Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958 that the disqualification is incurred by a member encroaching upon the government land or public property. Interestingly, in the affidavit in reply filed to this petition by Mr.Naresh Vasant Karnik, Tahasildar (General), Collector Office, Raigad-Alibag, it is stated that the Petitioner has encroached upon the public property as he is using the public property for conducting the public library. On this statement alone this petition deserves to succeed. The authorities, namely, both the Collector and the Commissioner do not dispute that the Samaj Mandir has been constructed from public funds made available to the local M.L.A.. The Samaj Mandir is a building constructed for public use by utilizing public funds. A portion of the said building has been utilized by the Petitioner for setting up a library. That library is open for public and that was the case throughout the proceedings. Rightly, therefore, it is termed as public library even by the Tahasildar. The only grievance against the Petitioner is that having set up such library and using it as such, he should have handed over the possession thereof to the Gram Panchayat. The Gram Panchayat would then manage and administer the said library. If this is the only act that the Petitioner is allegedly committing, then, as to how it could be termed as encroachment on the government land. In such factual scenario any larger issue need not to be decided. If the Petitioner is using the library where the public at large come and read the books, then, his act cannot be termed as encroachment on the government land or public property. The Collector and the Commissioner have reached an erroneous conclusion that the Petitioner is *5* wp.8381.10.912.sxw getting indirect advantage of this act politically. Whatever advantages the Petitioner gets politically because of such usage, has no relevance to the subject proceedings. The proceedings are to disqualify the Petitioner on the ground that he has encroached on the government land, therefore, the adjudication must be confined within the said limit only. It was not business of the Collector or the Commissioner to have gone into and inquired as to what political advantages the Petitioner gets because of such acts attributed to him. If the acts attributed cannot be termed as encroachment, then, it was clear duty of the authorities to dismiss the application. Having not done this, their orders are vitiated by total non application of mind and completely overlooking the statutory provisions. Not only the statutory provision has been overlooked, but has been misinterpreted completely by the authorities. In these circumstances, their orders cannot be sustained. 7 In these circumstances, Rule is made absolute in terms of prayer clause (a). Both impugned orders are quashed and set aside. The application to disqualify the Petitioner filed by the Respondent No.1 is dismissed. However, there will be no order as to costs. (S.C. Dharmadhikari, J)