Saturday, November 10, 2012

HC: Panchayat member can’t be disqualified if spouse at fault

Press Trust of India : Mumbai, Mon Oct 22 2012, 03:55 hrs

The Bombay High Court has held that a member of a village panchayat cannot be disqualified just because her spouse had encroached upon a government land or public property.

To incur disqualification under the law, such encroachment should have been done by the member alone and not by his or her spouse, the court ruled.

Accordingly, the court quashed an order of the Pune Divisional Commissioner, which had disqualified Yallubai Kamble, sarpanch of Phaye village in Kolhapur district, from being a member of the Gram Panchayat on the ground that she was living with her husband who had encroached upon government land.

“It will not be possible to hold that if an act complained of has been committed, in this case by the husband of the petitioner, then, the petitioner is disqualified,” observed Justice S C Dharmadhikari recently.

“If the petitioner had encroached upon the government land, it was a different matter. That her husband has encroached upon a government land is an admitted position and obviously the petitioner resides with her husband. For that she should be disqualified is really reading something in the provision which is not there,” the judge said. “By reading in the provision that the petitioner is the wife and therefore party to encroachment or having a nexus therewith, she is held to be disqualified and disabled. That is not what is provided by the statute,” said the judge.

“If the act is committed by somebody other than the elected person and therefore, he or she incurs or invites disqualification, is not a conclusion, which can be drawn or arrived at on a plain reading of section 14(1)(j3) of Bombay Village Panchayats Act,” the judge noted.

Related News
Six gram panchayat members disqualified in 1 yr for misuse of power

Nisha Nambiar : Tue Oct 23 2012, 04:59 hrs

Six members of gram panchayat in the Pune division have been disqualified in the last one year. While one of them is from Pune, the others are from Kolhapur and Satara. These members were found misusing powers under the Maharashtra Gram Panchayat Act, 1958.

“These persons have been found violating the rules mentioned in Section 39 (1) of Panchayat Act. Action against the members was taken after all the gram panchayat members agreed for it,’’ said a senior official from the divisional commissionerate.

But recently, the Bombay High Court had held that a member of the village panchayat cannot be disqualified just because her spouse had encroached upon a government land or public property. Officials said such decisions would hinder their effort to make gram panchayat transparent.

The court has stated that to incur disqualification under the law such encroachment should have been done by the member and not by his or her spouse. Thus, the court quashed the order of the Pune Divisional Commissioner which had disqualified Yallubai Kamble, sarpanch of Phaye village in Kolhapur district. Divisional Commissionerate officials said gram panchayat members themselves had agreed to disqualify him.

“There were complaints and the decision was taken after the hearing,’’ said the official. Now with the court observing in her favour by stating that it is not the petitioner who has committed the crime, divisional commissionerate officials said “such favours are rampant at village levels”.

Officials said the disqualification is done after a thorough assessment and in agreement with gram sabha members. In the last one year, members from Wadanage, Daryache Wadgaon, Kasarwadi, Chokak in Kolhapur and Deogaon in Satara and Keshavnagar grampanchayat in Pune were disqualified under the same section. “There is definitely irregularity found in their functioning. It could also amount to misuse of power and some of them do pass on the favours. This is serious and a member is disqualified after a decision by the gram panchayat and a hearing before the additional commissioner,’’ said the member.

There are also cases of misappropriation of funds for several festivals or syphoning of funds or giving out of turn sanctions to relatives or acquaintances. “These are very common reasons and several such cases come up in hearings. But this ruling opens up a doorway for the relatives of the members,’’ said another official.

While the rule strictly mentions - misuse of power for the person or for their own interest, the ruling comes as a blow for the officials taking action against these members. “Most of the members have their relatives elected to the gram panchayat and unless such favours are checked, gram panchayat cannot function transparently,’’ said a gram panchayat member from Pune’s Paud village.

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