(Ranjan Gogoi and R. Banumathi, JJ.)
Rekha Sandip Sakhare ______________________________ Appellant;
v.
Additional Commissioner, Pune Division and Others ___ Respondent(s).
Civil Appeal No(s). 1864-1865 of 2018 [Arising out of SLP (C) No(s). 369-370/2018], decided on February 13, 2018
The Order of the court was delivered by
Order
1. Leave granted.
2. We have heard the learned counsels for the parties and perused the relevant material.
3. The appellant who was elected as a member of a Village Panchayat has been disqualified on a complaint made by the third respondent. Such disqualification ordered by the Collector under the provisions of the Maharashtra Village Panchayat Act, 1959 was on the ground that family members of the appellant is in illegal occupation/has encroached on government land. The said order has been confirmed in appeal by the learned Commissioner against which the writ petition filed by the appellant has also been dismissed by the High Court. Aggrieved, this appeal has been filed.
4. There is no dispute that the encroachment of government land is not by the appellant herself but by her father-in-law and her husband. If that is so, the issue would be squarely covered by a recent pronouncement by this Court in ‘Sagar Pandurang Dhundare v. Keshav Aaba Patil’ reported in (2018) 1 SCC 340. Paragraphs 11, 15 and 16 of the said judgment, which may be relevant to the present context are extracted herein below:
“11. Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever the law-makers wanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwise discernible.
15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was “to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such”. The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.
16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify.”
5. From the above extract of the judgment in Sagar Pandurang Dhundare (supra) it is clear that this Court has held that unless the encroachment is by the elected member, himself or herself, disqualification will not automatically follow.
6. Following the aforesaid decision, we set aside the order of the High Court as well as the order of disqualification made by the authorities under the Act, namely, the Collector and the Commissioner.
7. The appellant be treated as to have been a member of the concerned village panchayat at all points of time and for all effective purposes.
8. The appeals consequently are allowed in the above terms.
Petition(s) for Special Leave to Appeal (C) No(s). 369-370/2018
Sou Rekha Sandip Sakhare ____________________________ Petitioner
v.
The Additional Commissioner Pune Division & Ors _____ Respondent(s)
(IA No. 11922/2018-STAY APPLICATION and FOR ADMISSION and I.R. IA No. 134896/2017-CONDONATION OF DELAY IN FILING IA No. 134897/2017-EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 134899/2017-EXEMPTION FROM FILING O.T. and IA No. 11923/2018-EXEMPTION FROM FILING O.T.)
WITH
SLP(C) No. 4273-4274/2018 (IX)
SLP(C) No. 4261-4262/2018 (IX)
Date: 13-02-2018 These matters were called on for hearing today.
(Before Ranjan Gogoi and R. Banumathi, JJ.)
For Petitioner(s) Dr. R. R. Deshpande, AOR
Ms. Prachiti R. Deshpande, Adv.
Mr. Abhay Anturkar, Adv.
Mr. Ajinkya Udane, Adv.
For M/s. Abhay Anturkar & Associates, AOR
For Respondent(s) Mr. Arvind S. Avhad, AOR
Mr. Nishant Ramakantrao Katneshwarkar, AOR
UPON hearing the counsel the Court made the following
ORDER
SLP(C) No. 369-370/2018
9. Leave granted.
10. The appeals are allowed in terms of the signed order.
11. In view of the above, all pending applications shall stand disposed of.
SLP(C) Nos. 4273-4274/2018 and 4261-4262/2018
12. Learned counsel for the petitioner(s) submits that insofar as affidavit of dasti service is concerned, there are some inaccuracies. Without going into the details, we grant liberty to the petitioner(s) to serve the respondent No. 3 in both the cases by dasti afresh and thereafter file an affidavit of service before the Registry.
13. Liberty is also granted to the learned counsel for the petitioner(s) to mention the matter(s) before the Court once the service is complete.
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