Case Note & Summary
The petitioner, Santosh Maruti Walanj, was elected as a member of Gram Panchayat Shelar, Taluka Bhivandi, District Thane, from a ward reserved for Scheduled Caste in elections held on 24 October 2010. His term commenced on 14 November 2010. On 15 October 2011, an application was filed before the Collector, Thane, alleging that the petitioner had encroached upon government land bearing CTS No. 1448/1 at Mouje Shelar by constructing a cattle shed measuring 609 square feet, and that he was disqualified under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958. The petitioner filed a reply contending that the construction was made in 1996, as per the Tahsildar's report dated 19 January 2011, and that the Gram Panchayat had assessed the property from the year 2000. He argued that there was no allegation that the encroachment was made after his election. The Collector, by order dated 25 July 2011, disqualified the petitioner under Section 14(1)(j-3) of the Act. The petitioner appealed to the Additional Commissioner, Konkan Division, who dismissed the appeal on 31 December 2011. The petitioner then filed a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court. The High Court examined the provisions of Section 14(1)(j-3) of the Act, which disqualifies a member who encroaches upon any property belonging to the Gram Panchayat or any other public property. The court noted that the provision must be interpreted to apply to encroachments made after the member's election or during his tenure. Since the construction was made in 1996, long before the petitioner's election in 2010, and the Gram Panchayat itself had assessed the property from 2000, the disqualification was not attracted. The court held that the Collector and the Additional Commissioner had erred in disqualifying the petitioner without considering the material on record. The High Court quashed the orders of the Collector and the Additional Commissioner and allowed the writ petition.
Headnote
A) Gram Panchayat - Disqualification of Member - Section 14(1)(j-3) Bombay Village Panchayats Act, 1958 - Encroachment prior to election - The petitioner was elected as a member of Gram Panchayat Shelar in October 2010. An application was filed alleging that he had encroached upon government land by constructing a cattle shed. The Tahsildar's report showed the construction was made in 1996 and assessed by the Gram Panchayat from 2000. The Collector disqualified the petitioner under Section 14(1)(j-3) of the Act, and the Additional Commissioner upheld the order. The High Court held that the disqualification provision applies only to encroachments made after the member's election or during his tenure. Since the encroachment was prior to the election and the Gram Panchayat had assessed the property, the disqualification was not attracted. The court quashed the orders of the Collector and Commissioner. (Paras 1-10)
Issue of Consideration
Whether a member of a Gram Panchayat can be disqualified under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958 for an encroachment that was made prior to his election and was assessed by the Gram Panchayat itself.
Final Decision
The High Court allowed the writ petition and quashed the order dated 31 December 2011 passed by the Additional Commissioner, Konkan Division, in Gram Panchayat Appeal No.441 of 2011, and the order dated 25 July 2011 passed by the Collector, Thane, in Gram Panchayat Appeal No.14/10/11. Rule made absolute.
Law Points
- Disqualification under Section 14(1)(j-3) of Bombay Village Panchayats Act
- 1958 requires encroachment to be made after election or during tenure
- Gram Panchayat's assessment of property is relevant to determine date of construction
- Collector and Commissioner must consider material on record before disqualifying a member
Case Details
2012 LawText (BOM) (11) 25
WRIT PETITION NO. 4490 OF 2012
Shri S. M. Oak i/by Shri Mandar Limaye for the Petitioner, Shri Ritesh Ratnam for the respondent no.1, Shri R. M. Patne for the Respondent Nos. 3 to 5
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ Petition under Articles 226 and 227 of the Constitution of India challenging the order of the Additional Commissioner, Konkan Division, which upheld the Collector's order disqualifying the petitioner as a member of Gram Panchayat Shelar under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958.
Remedy Sought
The petitioner sought quashing of the order dated 31 December 2011 passed by the Additional Commissioner, Konkan Division, in Gram Panchayat Appeal No.441 of 2011, and the order dated 25 July 2011 passed by the Collector, Thane, in Gram Panchayat Appeal No.14/10/11.
Filing Reason
The petitioner was disqualified as a member of Gram Panchayat Shelar on the ground of encroachment upon government land, but the encroachment was made prior to his election and the Gram Panchayat had assessed the property.
Previous Decisions
The Collector, Thane, by order dated 25 July 2011, disqualified the petitioner under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958. The Additional Commissioner, Konkan Division, by order dated 31 December 2011, dismissed the appeal and upheld the Collector's order.
Issues
Whether the petitioner can be disqualified under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958 for an encroachment that was made prior to his election and was assessed by the Gram Panchayat itself.
Whether the Collector and the Additional Commissioner erred in disqualifying the petitioner without considering the material on record, including the Tahsildar's report showing the construction was made in 1996.
Submissions/Arguments
The petitioner argued that the construction was made in 1996, as per the Tahsildar's report, and the Gram Panchayat had assessed the property from 2000. There was no allegation that the encroachment was made after his election. Therefore, Section 14(1)(j-3) was not attracted.
The respondents contended that the petitioner had encroached upon government land and was liable to be disqualified under Section 14(1)(j-3) of the Act.
Ratio Decidendi
The disqualification under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958 applies only to encroachments made after the member's election or during his tenure. An encroachment made prior to the election, which was assessed by the Gram Panchayat itself, does not attract disqualification under this provision.
Judgment Excerpts
The petitioner is a member of the Gram Panchayat Shelar Taluka Bhivandi, District Thane. The elections of the said Gram Panchayat were held on 24th October, 2010.
An application dated 15th October, 2011 was filed before the Collector Thane, complaining that the petitioner had encroached upon the Government land bearing CTS No. 1448/1 at Mouje Shelar Taluka Bhivandi Dist. Thane.
The petitioner filed a reply to this application and urged that to support the above allegations, reliance is placed on the report of the Tahsildar, Bhivandi dated 19th January, 2011. This report shows that the construction of a cattle shed has been made in 1996.
Procedural History
The petitioner was elected as a member of Gram Panchayat Shelar on 24 October 2010. On 15 October 2011, an application was filed before the Collector, Thane, alleging encroachment and seeking disqualification. The Collector, by order dated 25 July 2011, disqualified the petitioner under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958. The petitioner appealed to the Additional Commissioner, Konkan Division, who dismissed the appeal on 31 December 2011. The petitioner then filed a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, which was allowed on 5 November 2012.
Acts & Sections
- Bombay Village Panchayats Act, 1958: Section 14(1)(j-3), Section 28(1)
- Constitution of India: Articles 226, 227
