Tuesday, December 26, 2017

Member Of Panchayat Can’t Claim Immunity From Disqualification While Insisting To Encroach Upon Govt Land: Bombay HC

Nitish Kashyap|LiveLaw| December 20, 2017

The Bombay High Court has held that no member of a village Panchayat can insist upon encroaching on government land and have immunity from disqualification under the Maharasthra Village Panchayat Act, 1958.
Justice MS Sonak set aside an order of the Additional Commissioner, Pune Division and allowed the writ petition.

Case Background:
The writ petition was filed b one Satish Deshmukh who challenged an order by the Additional Commissioner, Pune Division, dated August 21, 2013. By this order, an order of the Assistant Collector dated February 28, 2013, disqualifying the respondent as a member of the village Panchayat at Karkamb, was set aside.
The respondent was disqualified by the Assistant Collector in exercise of powers under Section 14 (1) of the Village Panchayat Act, 1958.

Submissions and Judgment:
Petitioner’s counsel SS Aradhye submitted that both adjudicating authorities in this case, the Additional Commissioner as well as the Assistant Collector, concurrently held that the respondent member had indeed encroached upon the government land.

However, the Additional Commissioner, by observing that this encroachment had taken place so man years ago in 1996 has unjustifiably absolved respondent No. 3 from the taint of disqualification, Aradhye submitted.

Aradhye also argued that as long as encroachment on the government property continues, respondent No. 3, would be liable to be disqualified under the provisions of Section 14 (l)(j3) of the said Act.
On the other hand, respondent member’s lawyer AR Metkari argued that his client’s term as member of Panchayat had come to an end in October this year which makes the petition infructuous.
He further submitted that in Narayan A Borsae vs State of Maharasthra, it was held that the section of Panchayats Act does not provide for disqualification spading beyond the term of Sarpanch or a member found guilty of misconduct. He submitted that since, the alleged encroachment, was made in the year 1996, it is irrelevant for determining disqualification of his client who was elected as a member of the Panchayat for the term 2012-17.
The court referred to the judgement of the apex court in Sagar P Dhundare vs Keshav Aaba Patil and Ors, wherein it was held that encroachment on public property or government property is certainly to be condemned, encroacher evicted and punished.
After hearing both parties, the court agreed with the submissions by the petitioner’s counsel and noted: “Section 14 (l) (j3) of the said Act inter alia provides that not person shall be a member of a Panchayat or continue as such, ho, has encroached upon Government land or pubic property. This means that disqualification attaches to a person from being a member of the Panchayat as well as from continuing as a member of Pnachayat. The Statement of Objects and Reasons for the amendment by which this provision was introduced in the said Act indicates that the purpose was to disqualify the person, who has encroached upon Government land or public property from becoming a member of the Panchayat or too continue as such.”
Thus, the court set aside the order of the Additional Commissioner in order to avoid a situation where the respondent continues to encroach on government land and get re-elected as a member of Panchayat.

The judgement can be read at:


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