But, the question is, does it entitle the
Corporation to claim that the land so specified should be transferred to
the authority free of cost. That is not made out from any provision in the
Act or on any principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to manage
as a local body is not the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the transferor ceases to
be owner of it and the ownership stands transferred in the person in
whose favour it is transferred. The resolution of the Committee to transfer
land in the colony for parks and school was an order for transfer without
there being any sanction for the same in law. Thus, by a mere resolution
these lands could not be transferred and there has to be sanction for the
same in law.” (see para 6 on page 435).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3241 OF 2012
Shantaram Narayan Raut,
versus
The Additional Collector, Nashik.
Citation: 2012(6)ALLMR527, 2013(2)BomCR341, 2012(6)MhLj790
CORAM : S.C.DHARMADHIKARI, J.
Date : 04th September, 2012.
1 Rule. Respondents waive service. By consent of parties, heard
finally.
2 By this Writ Petition under Articles 226 and 227 of the
Constitution of India, the Petitioner is challenging the order passed by the
Additional Collector, Nashik District, Nashik dated 05.03.2012 on the
Dispute Application No.2/2012 which order is confirmed by the
Additional Divisional Commissioner, Nashik Division, Nashik by his order
28.03.2012 in Appeal No.44/2012.
3 The Respondent Nos.2 and 3 to this Writ Petition filed an
application bearing Dispute Application No.2/2012 against the Petitioner
invoking the jurisdiction and authority of the Additional Collector, Nashik
under Section 16(1) and (2) of the Bombay Village Panchayats Act, 1958
(for short “the Act”).
4 The allegation contained in this application briefly is that by
virtue of Section 16 of the Act, the elected member can be held to be
disabled from continuing as such if at the time of his election or
appointment he was subjected to any of the disqualifications mentioned in
Section 14 of the Act or during the term for which he has been elected or
appointed he has incurred any disqualification mentioned in Section 14.
Once he is so disabled, there is vacancy in the office as it is held to be
vacant after disability. Whether, any vacancy has occurred or not is the
question which has been raised and which in terms of the statutory
provision is required to be answered by the Collector. The allegation was
that the Petitioner was disqualified in terms of Section 14(1)(j3)
as he
has encroached upon the Government land or public property.
5 The case of the Respondent Nos.3 and 4 in that application is
that the Gram Panchayat, Vinchur, Taluka Niphad, District : Nashik is the
Gram Panchayat for which elections were held in the year 2010. There are
17 members of this Gram Panchayat. The election results were declared
on 27.06.2010. One of the persons who has been elected is the Petitioner.
Thereafter, on 14.09.2011 the Petitioner came to be elected as Sarpanch.
However, it was expected of the Petitioner to carry on affairs of the Gram
Panchayat by taking everybody into confidence and carry out welfare
works. To the disappointment of the Respondent Nos.3 and 4, it was
discovered that there is property belonging to the Petitioner bearing Gat
No.626/2. There is a layout which was presented to the Planning
Authority and which has approved the same. The total area is 2700
sq.mtrs.. However, there is open space in this layout in which the
Petitioner has unauthorizedly and illegally constructed tinsheds.
There is
unauthorized Mutton Market which has been put up in these sheds and
the Petitioner has gone to the extent of carving out Galas and Tenaments
therein and such Galas have been let out by him and once such
construction has been found in the open space on the Government land or
public property, then, it attracts disqualification as per the aforementioned
statutory provision.
6 Taking cognizance of such complaint, what appears to have
been done thereafter is to seek a report from the Circle Officer, Lasalgaon
after spot inspection. The Circle Officer after the spot inspection has
reported that the encroachment is on private open space. However, the
encroachment is in a open space which open space belongs to the Gram
Panchayat, therefore, the encroachment is liable to be removed and that
responsibility is of the Gram Panchayat.
7 There is also letter of the Tahasildar, Niphad dated
16.11.2010 to the Sarpanch of Gram Panchayat wherein it was intimated
that in Gat No.626 there is an illegal and unauthorized encroachment and
that is by the Petitioner. Therefore, Section 14(1)(j3)
is applicable.
8 Then reliance was placed on the report of the Director of
Town Planning in which it has been clarified that the open spaces in
approved layout and within the Gram Panchayat limits are not permitted
to be utilized or used by the owners or residents of the village. Therefore,
the construction of Mutton Market made by the Petitioner thereon could
not have been permitted by the Gram Panchayat. What has been then
relied upon is a further report/ letter dated 18.06.2010 of the Assistant
Director, Town Planning, Nashik which states that the open spaces in such
layout can be handed over for management and safeguarding by the Gram
Panchayat. No person can give such portions to anybody for commercial
use. In open spaces 10% area is capable of being used and permitted to be
used as Balak Mandir, Library, Club House, etc.. In such circumstances
what the Petitioner has done is to make or permit a construction in such
open space and which construction has been occupied by several persons.
The Petitioner recommended that the occupation of the Gala occupiers be
regularized and that is the request made by him in writing. For all these
reasons, the Petitioner invites and incurs disqualification.
9 On such application, the Petitioner was called upon to submit
his explanation and in the reply, the Petitioner has denied that he has
committed any encroachment on the Government land or public property.
The Petitioner has stated that the portion admeasuring 2700 sq.mtrs.
belongs to him whereas the balance is owned by Suvarna Kailas Sonwane
and others. In the revenue record, there is no entry that this land is owned
by the Government or is public property. The open space is not the
Government land or public property. The application is, thus, not
maintainable. There are various contentions raised and particularly with
regard to the pendency of some civil suit and what has been then stated is
that the Petitioner has not carried out any construction and the Mutton
Market is existing from 15 to 20 years. The persons who are carrying on
business in the Galas have no privity of contract with the Petitioner. On
the strength of the letter dated 26.04.2010 addressed to the Sarpanch/
Gramsevak, it cannot be held that the Petitioner has encroached on the
Government land or public property. For all these reasons, it was
submitted that the application filed by the Respondent Nos.3 and 4 be
dismissed.
10 On such material, the Additional Collector heard both sides
and even considered the contents of the documents produced which
included the reports of the statutory authorities. What the Additional
Collector has, in the order passed on 05.03.2012, concluded is that Gat
No.626/2 is owned by the Petitioner and others. Their names are entered
in the revenue record dated 14.12.2011. This land is non agriculture in
nature. The Petitioner owns the portion of 2700 sq.mtrs.. The plan would
denote that a portion of the land held by the Petitioner has been shown as
open space. In the letter dated 26.04.2010 addressed to the Sarpanch of
the Gram Panchayat, the Petitioner has stated that in Gat Nos.626/2 and
626/3 in the open space there is Mutton Market and the Petitioner has no
objection if the names of the Gala holders are entered in the record of
rights. Equally, what the Additional Collector refers to is a notice dated
12.05.2010 of the Gramvikas Adhikari of Gram Panchayat and Sarpanch
that Gat No.626/2 and 626/3 has open space and in that open space there
are Tin Sheds and this amounts to encroachment on the public property.
That notice has been forwarded to the Block Development Officer and
equally the complaint which was made by the Respondent No.3 to the
Tahasildar on 22.09.2010.
11 It appears that the Additional Collector has heavily relied
upon the report of the Circle Officer dated 30.10.2010 and in which it is
indicated that the open space belongs to the Gram Panchayat and any
encroachment therein can be removed by the Gram Panchayat. Equally,
there is reliance placed on the report of the Director of Town Planning. On
the basis of all this and by relying on certain provisions of the
Maharashtra Regional Town Planning Act, 1966 what has been held by
the Additional Collector is that the complaint alleges that the Petitioner
has not got a layout sanctioned in respect of Gat No.626/2 admeasuring
2700 sq.mtrs. from the competent officer. That layout has been approved
by the Architect of the Petitioner himself. The Petitioner in his reply
controverted this position and has contended that he has got the layout
approved in terms of the provisions of the Maharashtra Regional Town
Planning Act, 1966. However, the Additional Collector holds that the
Petitioner failed to produce any document from the competent authority
approving such layout. All that the Additional Collector then relies upon
are the contents of the reports which have been forwarded by the
statutory authorities and concluded that in Vinchur village there is Mutton
& Chicken Market. These are nothing but Galas constructed in open space
in Gat No.626. If such is the position with regard to the open space and as
clarified in the reports of the statutory bodies, then, there is no substance
in the contentions raised on behalf of the Petitioner. The Petitioner is,
therefore, clearly disqualified and when he has permitted the persons to
set up the tin sheds in the open space and carry on business as Mutton
Market. The Petitioner is, therefore, liable to be disqualified.
12 The Additional Collector has relied upon some payments
which have been made for usage of the open space/ tin sheds by one
Pandurang Shirsath and the litigation between the Petitiioner and the said
Pandurang Shirsath. However, that is not material for the purpose of the
present Writ Petition. It is on these findings that the final order was
passed by the Additional Collector which has been confirmed by the
Additional Commissioner by identical conclusions. The whole emphasis is
on the letter dated 26.04.2010 addressed by the Petitioner to the
Sarpanch/ Gramsevak setting out his no objection to the names of Gala
owners or users being recorded or entered in the record of rights of the
Gram Panchayat record. Based on this letter and the Circle Officer's report
that the Additional Commissioner agrees with the Additional Collector in
disqualifying the Petitioner.
13 These concurrent orders are under challenge before me.
14 Mr.Sabrad, learned counsel appearing for the Petitioner,
submits that the proceedings were not maintainable inasmuch as the
Petitioner could not have been disqualified. The Petitioner was not
subjected to any disqualification mentioned in Section 14 at the time of
his election or during the term for which he has been elected, either.
Reliance placed on Section 14(1)(j3)
is misplaced because that is a
disqualification on account of encroachment on the Government land or
public property. Survey No.626/2 or 626 as a whole is a private property.
That certain portion therein has been earmarked or kept aside as open
space, cannot mean that same is the Government land or public property.
For the Petitioner to be disqualified there has to be encroachment on the
Government land or public property. If the encroachment is on portion of
the private land, then, such portion being earmarked or designated as
open space and therefore, capable of being acquired or utilized for the
public, does not make it either the Government land or public property.
That would mean stretching the language of Section 14(1)(j3)
too far.
The words therein are “has encroached upon the Government land or
public property”. There ought not be any dispute about the encroachment
on the Government land or public property. If there is encroachment, but
which is not on the Government land or public property, then, there is no
disqualification. On this short ground alone the petition deserves to
succeed, is the submission of Mr.Sabrad.
15 Mr.Sabrad has invited my attention to the orders passed by
the Additional Commissioner and the Additional Collector and contents of
the letter dated 26.04.2010. Equally he has also invited my attention to
the Map of the layout, copy of which is annexed to the Writ Petition at
AnnexureH.
He has submitted that none of the reports including that of
the Circle Officer can be said to be conclusive. In such circumstances the
Writ Petition should be allowed. Mr.Sabrad has also submitted that there
are affidavits filed in support of the Petitioner's case by two individuals
who are carrying on business in tin sheds (kiosks/taparis) on Survey
No.626/3 which would indicate that the tin sheds have not been
constructed by the Petitioner. For all these reasons, he submits that the
impugned orders be set aside.
16 On the other hand, Mr.Cardozo, the learned AGP for the State
and Mr.Joshi, learned counsel appearing for the Respondent Nos.3 and 4,
would submit that the concurrent orders require no interference in writ
jurisdiction. Mr.Joshi submits that this is a clear case where the Court
should construe the words “has encroached upon the Government land or
public property” liberally so as to include the act which has been
committed in the present case. If elected members allow construction in
open spaces and which spaces are required to keep open to sky, then, they
would escape the consequences and will hold public office without any
interruption or objection. If the intent of the legislature is to prevent a
person guilty of a wrongful act or whose character is doubtful, from
holding a public office, then, this Court should construe the provision not
strictly but liberally so as to subserve
this object or purpose. Mr.Joshi
submits that in this case what the reports on record have indicated is that
such open spaces are held by the persons like the Petitioner who are
owners of the private lands and properties as trustees for public. Mr.Joshi
submits that the encroachment on the Government land or public
property would take within its fold any land or property which is capable
of being utilized by public. It may not be owned by the Government, but if
the lands or properties are to be utilized by public and the members of
public have free access thereto and can claim so, then, any encroachment
thereon must come within the ambit and scope of this legal provision or
else its object and purpose would be defeated completely. He, therefore,
submits that based on the reports that were forwarded to the authorities,
their conclusion that there is encroachment in open space. It is justified
and requires no interference in writ jurisdiction. Consequently, the Writ
Petition be dismissed.
17 It is a common ground that in this case the application was
made under Section 16 of the Act that deals with disability from
continuing as a member. That enables the Collector to suo motu or on an
application made to him by any person, to decide whether any vacancy
has occurred. That vacancy may occur if any member of the Village
Panchayat was subject to any of the disqualifications mentioned in Section
14 at the time of his election or appointment or during the term for which
he has been elected or appointed, he incurs any of the disqualifications
mentioned in Section 14. In that event he shall be disabled from
continuing as a member and his office shall become vacant.
18 In the instant case, disability is on account of Section 14(1)(j3)
which states that no person shall be a member of the Village Panchayat
or continue as such who has encroached upon the Government land or
public property.
19 While it is true that both these terms are not defined in the
Act and they take their colour from ordinary and common parlance, yet
these have legal connotations. They have some purpose and meaning.
Their definite legal impact has always been understood and if one is
required to refer to their meaning in a Statute or law, a reference can
usefully be made to the Advanced Law Lexicon by P. Ramanatha Aiyar,
3 rd Edition Reprint 2007 , in which the term “Government land” has been
defined to mean the land belonging to the Government i.e. the land of
which the Government is the proprietor and does not include the land in
which the proprietary rights in the soil vest in a private individual,
whether or not it be subject to payment of assessment to the Government.
20 The term “public land” has also been defined in this very
work to mean such lands vesting in the Government and which are subject
to sale or other disposal under the general laws. The terms “public lands”
or “public domain” are habitually used to describe such as are vested in
the State and which are subject to sale or other disposal under the general
laws. There is no statutory definition of the words “public land” and their
meaning may vary for different purposes and they should be given such
meaning in each case as comforts with the intention of the parties using
the lands. However, the work also clarifies the land or land interest held
by the Government without regard to how the Government acquired
ownership; unappropriated land belonging to the federal or State
Government is also termed as public land and its other meaning is the
Government land and public ground.
21 Equally, the term “public property” has been always
understood to mean the property owned by the Government or local
bodies on behalf of the community in general. The “public property”
means any property belonging to the Government or any local authority.
The Prevention of Damage to Public Property Act, 1984 defines the term
“public property” as under:“
Section 2. Definitions:
(b) “public property” means any property, whether
immovable or movable (including any machinery)
which is owned by, or in the possession of, or under the
control of(
i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a
Central, Provincial or State Act; or
(v) any company as defined in Sec.617 of the
Companies Act, 1956; or
(vi) any institution, concern or undertaking which the
Central Government may, by notification in the Official
Gazette, specify in this behalf:
Provided that the Central Government shall not
specify any institution, concern or undertaking under
this subclause
unless such institution, concern or
undertaking is financed wholly or substantially by funds
provided directly or indirectly by the Central
Government or by one or more State Governments, or
partly by the Central Government and partly by one or
more State Governments.”
22 It is clear that the Bombay Village Panchayats Act, 1958,
specifies encroachment on Government land or public property.
Encroachment means an act which is wrongful and illegal or not
permissible in law. That is how encroachment upon Government land or
public property is understood. The term “public property” is also used in
the provision, so also, “Government land”. The encroachment on the
Government land or public property which includes public land, is an act
which invites disqualification. However, when there is disqualification
from being elected or continuing as a member for having committed
encroachment on the Government land or public property, then, the
concept has to be understood in the context of what can be described as
Government land or public property. The words have not been used in the
sense that a land or property capable of being used by the Government or
public will come within the legal provision in question. The land or
property must be a Government land or public property and that can only
be as set out above. It cannot be a vague or indefinite concept or else that
would create confusion and chaos. Ultimately, the words find their place
in the Bombay Village Panchayats Act, 1958 which is an Act to provide for
constitution and administration of the Village Panchayats.
23 That Act is to amend and consolidate the law relating to the
constitution and administration of the Village Panchayats and for certain
other matters. What the Act seeks to achieve is establishment of a Village
Panchayat for every village or group of villages and invest them with such
powers and authority as may be necessary to enable them to function as
units of local selfgovernment
and to carry out development activities in
rural areas. It is no doubt true that persons manning such institutions or
incharge of such affairs, need to possess high moral character and they
should not have indulged in acts which can be termed as illegal,
unauthorized or immoral. What the Legislature intends to achieve while
providing for disqualification not only at the time of election, but post
election as well, is to ensure clean, smooth, proper and efficient
administration of the Panchayat. These are institutions which are invested
with powers and authority so as to enable them to function as units of
local selfgovernment.
There should not be uncertainty even after
elections and if the authorities are to deal with a complaint or application
of the present nature, then, the least that is expected is that there are
specific allegations of wrongful acts and that there is adequate and
complete material in that behalf. In other words, after the Panchayat is
constituted and becomes functional, there should not be any unnecessary
hurdles and obstacles. In order to undertake development activities at the
rural level, the Panchayat must work and just as disqualified members
should not continue and complete their term, equally, frequent and
unending disputes must not disturb or disrupt its working. This can be
achieved only if genuine grievances and complaints are entertained.
24 In the instant case, what one finds is that the allegation is
that Survey No.626 is a private land. That certain portion therein has been
earmarked as open space. Pertinently such earmarking is in a layout
which is stated to be either prepared or submitted for sanction or approval
or approved or sanctioned. Nonetheless it relates to a private property. It
is equally true that the planning laws relied upon in this case or
otherwise, mandate the keeping of certain spaces as open and unbuilt so
as to ensure free and smooth flow of air and ventilation. That by itself
does not mean that such spaces, which may be also utilized for recreation
purposes, can be termed as belonging to the Government or local
authority or are public properties straightway.
25 The public property is one to which the members of public
have free and unrestricted access. That place or land or property may not
be owned by the Government or local authority, but if it belongs to or is
donated or granted or allotted for use of the members of public, then, it is
broadly understood as public property. The open space in the village
meant for use by the public or members of public or villagers is certainly a
public property, but if that concept is to be extended to spaces which are
earmarked as open but in a private land that would mean that the
earmarking or designation makes it a public property. It is a public
property and can be termed as such without any acquisition by the
Government or the local authority. That would mean that by mere
earmarking or designation such properties vest straightway in the State.
26 Way back in 1994 and to be precise while dealing with Civil
Appeal No.319/1976 decided on 26.10.1994 (Pt. Chet Ram Vashist (dead)
by L.Rs. v/s Municipal Corporation of Delhi reported in AIR 1995 SC 430),
a Two Judge Bench of the Hon'ble Supreme Court held that designation,
earmarking, reservation of spaces for public purposes is permissible in
cases of lands and layouts, which are private. What the Hon'ble Supreme
Court holds is that “reserving any site for any street, open space, park,
school etc. in a layout plan is normally a public purpose as it is inherent in
such reservation that it shall be used by the public in general. The effect of
such reservation is that the owner ceases to be a legal owner of the land
in dispute and he holds the land for the benefit of the society or the public
in general. It may result in creating an obligation in the nature of trust
and may preclude the owner from transferring or selling his interest in it.
It may be true as held by the High Court that the interest which is left in
the owner is a residuary interest which may be nothing more than a right
to hold this land in trust for the specific purpose specified by the coloniser
in the sanctioned layout plan. But, the question is, does it entitle the
Corporation to claim that the land so specified should be transferred to
the authority free of cost. That is not made out from any provision in the
Act or on any principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to manage
as a local body is not the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the transferor ceases to
be owner of it and the ownership stands transferred in the person in
whose favour it is transferred. The resolution of the Committee to transfer
land in the colony for parks and school was an order for transfer without
there being any sanction for the same in law. Thus, by a mere resolution
these lands could not be transferred and there has to be sanction for the
same in law.” (see para 6 on page 435).
27 If the concept is understood thus, it would become at once
clear that any open spaces, being carved out in a private layout, are meant
to be kept open by the owners and that cannot be built upon. It has to be
kept open and may be utilised for recreational or such other activities. For
such spaces to be termed as public properties, something more needs to
be done in law so as to vest them in State for the use and benefit of
public. That requires a sanction in law. If one were to straightway assume
based on the contents of the report of the Circle Officer or the Town
Planner that even such spaces in a private layout are not meant to be
utilized by the private owners and therefore, are capable of being taken
over by the local authority or local body, then, that would introduce an
element of uncertainty and in a given case, disqualify persons who are
duly elected members not for any unlawful act on their part. In these
circumstances to hold on the basis of the reports submitted by the officers
in this case that there is encroachment on the Government land or public
property, would be extremely risky and hazardous. That is certainly not
the intention of the Legislature in providing for disqualification of persons
for being elected as members of the Village Panchayat or to continue as
members upon election. If that had been the intent, that would have been
specified clearly and unequivocally. If the term Government land or public
property is understood in common parlance and in the context referred to
above, then, it is clear that the Petitioner who is allegedly guilty of having
encroached on open space in a private layout by permitting construction
of tin sheds thereon, cannot be disqualified for having encroached on a
Government land or public property. The wrongful acts committed by the
Petitioner on his private land and property can be dealt with under other
laws. The wrongful acts, if any, committed can be sternly and strictly dealt
with in accordance with law. All that is meant is that even an elected
member is answerable to law and if he has committed any unauthorised
or illegal act even in a private property, he can be either prosecuted or
penalised.
28 In the circumstances afore stated, the orders under challenge
cannot be upheld and deserve to be quashed and set aside on the ground
that the authorities had no power to disqualify the Petitioner for the acts
attributed to him. If he could not have been proceeded on the complaint
as it stands and on undisputed facts, then, the authorities have exceeded
their power in disqualifying the Petitioner. Their orders are exfacie
illegal,
erroneous and deserve to be quashed and set aside. They are, accordingly,
quashed and set aside. Rule is made absolute in the above terms, but
without any orders as to costs.
(S.C. Dharmadhikari, J)
Corporation to claim that the land so specified should be transferred to
the authority free of cost. That is not made out from any provision in the
Act or on any principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to manage
as a local body is not the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the transferor ceases to
be owner of it and the ownership stands transferred in the person in
whose favour it is transferred. The resolution of the Committee to transfer
land in the colony for parks and school was an order for transfer without
there being any sanction for the same in law. Thus, by a mere resolution
these lands could not be transferred and there has to be sanction for the
same in law.” (see para 6 on page 435).
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3241 OF 2012
Shantaram Narayan Raut,
versus
The Additional Collector, Nashik.
Citation: 2012(6)ALLMR527, 2013(2)BomCR341, 2012(6)MhLj790
CORAM : S.C.DHARMADHIKARI, J.
Date : 04th September, 2012.
1 Rule. Respondents waive service. By consent of parties, heard
finally.
2 By this Writ Petition under Articles 226 and 227 of the
Constitution of India, the Petitioner is challenging the order passed by the
Additional Collector, Nashik District, Nashik dated 05.03.2012 on the
Dispute Application No.2/2012 which order is confirmed by the
Additional Divisional Commissioner, Nashik Division, Nashik by his order
28.03.2012 in Appeal No.44/2012.
3 The Respondent Nos.2 and 3 to this Writ Petition filed an
application bearing Dispute Application No.2/2012 against the Petitioner
invoking the jurisdiction and authority of the Additional Collector, Nashik
under Section 16(1) and (2) of the Bombay Village Panchayats Act, 1958
(for short “the Act”).
4 The allegation contained in this application briefly is that by
virtue of Section 16 of the Act, the elected member can be held to be
disabled from continuing as such if at the time of his election or
appointment he was subjected to any of the disqualifications mentioned in
Section 14 of the Act or during the term for which he has been elected or
appointed he has incurred any disqualification mentioned in Section 14.
Once he is so disabled, there is vacancy in the office as it is held to be
vacant after disability. Whether, any vacancy has occurred or not is the
question which has been raised and which in terms of the statutory
provision is required to be answered by the Collector. The allegation was
that the Petitioner was disqualified in terms of Section 14(1)(j3)
as he
has encroached upon the Government land or public property.
5 The case of the Respondent Nos.3 and 4 in that application is
that the Gram Panchayat, Vinchur, Taluka Niphad, District : Nashik is the
Gram Panchayat for which elections were held in the year 2010. There are
17 members of this Gram Panchayat. The election results were declared
on 27.06.2010. One of the persons who has been elected is the Petitioner.
Thereafter, on 14.09.2011 the Petitioner came to be elected as Sarpanch.
However, it was expected of the Petitioner to carry on affairs of the Gram
Panchayat by taking everybody into confidence and carry out welfare
works. To the disappointment of the Respondent Nos.3 and 4, it was
discovered that there is property belonging to the Petitioner bearing Gat
No.626/2. There is a layout which was presented to the Planning
Authority and which has approved the same. The total area is 2700
sq.mtrs.. However, there is open space in this layout in which the
Petitioner has unauthorizedly and illegally constructed tinsheds.
There is
unauthorized Mutton Market which has been put up in these sheds and
the Petitioner has gone to the extent of carving out Galas and Tenaments
therein and such Galas have been let out by him and once such
construction has been found in the open space on the Government land or
public property, then, it attracts disqualification as per the aforementioned
statutory provision.
6 Taking cognizance of such complaint, what appears to have
been done thereafter is to seek a report from the Circle Officer, Lasalgaon
after spot inspection. The Circle Officer after the spot inspection has
reported that the encroachment is on private open space. However, the
encroachment is in a open space which open space belongs to the Gram
Panchayat, therefore, the encroachment is liable to be removed and that
responsibility is of the Gram Panchayat.
7 There is also letter of the Tahasildar, Niphad dated
16.11.2010 to the Sarpanch of Gram Panchayat wherein it was intimated
that in Gat No.626 there is an illegal and unauthorized encroachment and
that is by the Petitioner. Therefore, Section 14(1)(j3)
is applicable.
8 Then reliance was placed on the report of the Director of
Town Planning in which it has been clarified that the open spaces in
approved layout and within the Gram Panchayat limits are not permitted
to be utilized or used by the owners or residents of the village. Therefore,
the construction of Mutton Market made by the Petitioner thereon could
not have been permitted by the Gram Panchayat. What has been then
relied upon is a further report/ letter dated 18.06.2010 of the Assistant
Director, Town Planning, Nashik which states that the open spaces in such
layout can be handed over for management and safeguarding by the Gram
Panchayat. No person can give such portions to anybody for commercial
use. In open spaces 10% area is capable of being used and permitted to be
used as Balak Mandir, Library, Club House, etc.. In such circumstances
what the Petitioner has done is to make or permit a construction in such
open space and which construction has been occupied by several persons.
The Petitioner recommended that the occupation of the Gala occupiers be
regularized and that is the request made by him in writing. For all these
reasons, the Petitioner invites and incurs disqualification.
9 On such application, the Petitioner was called upon to submit
his explanation and in the reply, the Petitioner has denied that he has
committed any encroachment on the Government land or public property.
The Petitioner has stated that the portion admeasuring 2700 sq.mtrs.
belongs to him whereas the balance is owned by Suvarna Kailas Sonwane
and others. In the revenue record, there is no entry that this land is owned
by the Government or is public property. The open space is not the
Government land or public property. The application is, thus, not
maintainable. There are various contentions raised and particularly with
regard to the pendency of some civil suit and what has been then stated is
that the Petitioner has not carried out any construction and the Mutton
Market is existing from 15 to 20 years. The persons who are carrying on
business in the Galas have no privity of contract with the Petitioner. On
the strength of the letter dated 26.04.2010 addressed to the Sarpanch/
Gramsevak, it cannot be held that the Petitioner has encroached on the
Government land or public property. For all these reasons, it was
submitted that the application filed by the Respondent Nos.3 and 4 be
dismissed.
10 On such material, the Additional Collector heard both sides
and even considered the contents of the documents produced which
included the reports of the statutory authorities. What the Additional
Collector has, in the order passed on 05.03.2012, concluded is that Gat
No.626/2 is owned by the Petitioner and others. Their names are entered
in the revenue record dated 14.12.2011. This land is non agriculture in
nature. The Petitioner owns the portion of 2700 sq.mtrs.. The plan would
denote that a portion of the land held by the Petitioner has been shown as
open space. In the letter dated 26.04.2010 addressed to the Sarpanch of
the Gram Panchayat, the Petitioner has stated that in Gat Nos.626/2 and
626/3 in the open space there is Mutton Market and the Petitioner has no
objection if the names of the Gala holders are entered in the record of
rights. Equally, what the Additional Collector refers to is a notice dated
12.05.2010 of the Gramvikas Adhikari of Gram Panchayat and Sarpanch
that Gat No.626/2 and 626/3 has open space and in that open space there
are Tin Sheds and this amounts to encroachment on the public property.
That notice has been forwarded to the Block Development Officer and
equally the complaint which was made by the Respondent No.3 to the
Tahasildar on 22.09.2010.
11 It appears that the Additional Collector has heavily relied
upon the report of the Circle Officer dated 30.10.2010 and in which it is
indicated that the open space belongs to the Gram Panchayat and any
encroachment therein can be removed by the Gram Panchayat. Equally,
there is reliance placed on the report of the Director of Town Planning. On
the basis of all this and by relying on certain provisions of the
Maharashtra Regional Town Planning Act, 1966 what has been held by
the Additional Collector is that the complaint alleges that the Petitioner
has not got a layout sanctioned in respect of Gat No.626/2 admeasuring
2700 sq.mtrs. from the competent officer. That layout has been approved
by the Architect of the Petitioner himself. The Petitioner in his reply
controverted this position and has contended that he has got the layout
approved in terms of the provisions of the Maharashtra Regional Town
Planning Act, 1966. However, the Additional Collector holds that the
Petitioner failed to produce any document from the competent authority
approving such layout. All that the Additional Collector then relies upon
are the contents of the reports which have been forwarded by the
statutory authorities and concluded that in Vinchur village there is Mutton
& Chicken Market. These are nothing but Galas constructed in open space
in Gat No.626. If such is the position with regard to the open space and as
clarified in the reports of the statutory bodies, then, there is no substance
in the contentions raised on behalf of the Petitioner. The Petitioner is,
therefore, clearly disqualified and when he has permitted the persons to
set up the tin sheds in the open space and carry on business as Mutton
Market. The Petitioner is, therefore, liable to be disqualified.
12 The Additional Collector has relied upon some payments
which have been made for usage of the open space/ tin sheds by one
Pandurang Shirsath and the litigation between the Petitiioner and the said
Pandurang Shirsath. However, that is not material for the purpose of the
present Writ Petition. It is on these findings that the final order was
passed by the Additional Collector which has been confirmed by the
Additional Commissioner by identical conclusions. The whole emphasis is
on the letter dated 26.04.2010 addressed by the Petitioner to the
Sarpanch/ Gramsevak setting out his no objection to the names of Gala
owners or users being recorded or entered in the record of rights of the
Gram Panchayat record. Based on this letter and the Circle Officer's report
that the Additional Commissioner agrees with the Additional Collector in
disqualifying the Petitioner.
13 These concurrent orders are under challenge before me.
14 Mr.Sabrad, learned counsel appearing for the Petitioner,
submits that the proceedings were not maintainable inasmuch as the
Petitioner could not have been disqualified. The Petitioner was not
subjected to any disqualification mentioned in Section 14 at the time of
his election or during the term for which he has been elected, either.
Reliance placed on Section 14(1)(j3)
is misplaced because that is a
disqualification on account of encroachment on the Government land or
public property. Survey No.626/2 or 626 as a whole is a private property.
That certain portion therein has been earmarked or kept aside as open
space, cannot mean that same is the Government land or public property.
For the Petitioner to be disqualified there has to be encroachment on the
Government land or public property. If the encroachment is on portion of
the private land, then, such portion being earmarked or designated as
open space and therefore, capable of being acquired or utilized for the
public, does not make it either the Government land or public property.
That would mean stretching the language of Section 14(1)(j3)
too far.
The words therein are “has encroached upon the Government land or
public property”. There ought not be any dispute about the encroachment
on the Government land or public property. If there is encroachment, but
which is not on the Government land or public property, then, there is no
disqualification. On this short ground alone the petition deserves to
succeed, is the submission of Mr.Sabrad.
15 Mr.Sabrad has invited my attention to the orders passed by
the Additional Commissioner and the Additional Collector and contents of
the letter dated 26.04.2010. Equally he has also invited my attention to
the Map of the layout, copy of which is annexed to the Writ Petition at
AnnexureH.
He has submitted that none of the reports including that of
the Circle Officer can be said to be conclusive. In such circumstances the
Writ Petition should be allowed. Mr.Sabrad has also submitted that there
are affidavits filed in support of the Petitioner's case by two individuals
who are carrying on business in tin sheds (kiosks/taparis) on Survey
No.626/3 which would indicate that the tin sheds have not been
constructed by the Petitioner. For all these reasons, he submits that the
impugned orders be set aside.
16 On the other hand, Mr.Cardozo, the learned AGP for the State
and Mr.Joshi, learned counsel appearing for the Respondent Nos.3 and 4,
would submit that the concurrent orders require no interference in writ
jurisdiction. Mr.Joshi submits that this is a clear case where the Court
should construe the words “has encroached upon the Government land or
public property” liberally so as to include the act which has been
committed in the present case. If elected members allow construction in
open spaces and which spaces are required to keep open to sky, then, they
would escape the consequences and will hold public office without any
interruption or objection. If the intent of the legislature is to prevent a
person guilty of a wrongful act or whose character is doubtful, from
holding a public office, then, this Court should construe the provision not
strictly but liberally so as to subserve
this object or purpose. Mr.Joshi
submits that in this case what the reports on record have indicated is that
such open spaces are held by the persons like the Petitioner who are
owners of the private lands and properties as trustees for public. Mr.Joshi
submits that the encroachment on the Government land or public
property would take within its fold any land or property which is capable
of being utilized by public. It may not be owned by the Government, but if
the lands or properties are to be utilized by public and the members of
public have free access thereto and can claim so, then, any encroachment
thereon must come within the ambit and scope of this legal provision or
else its object and purpose would be defeated completely. He, therefore,
submits that based on the reports that were forwarded to the authorities,
their conclusion that there is encroachment in open space. It is justified
and requires no interference in writ jurisdiction. Consequently, the Writ
Petition be dismissed.
17 It is a common ground that in this case the application was
made under Section 16 of the Act that deals with disability from
continuing as a member. That enables the Collector to suo motu or on an
application made to him by any person, to decide whether any vacancy
has occurred. That vacancy may occur if any member of the Village
Panchayat was subject to any of the disqualifications mentioned in Section
14 at the time of his election or appointment or during the term for which
he has been elected or appointed, he incurs any of the disqualifications
mentioned in Section 14. In that event he shall be disabled from
continuing as a member and his office shall become vacant.
18 In the instant case, disability is on account of Section 14(1)(j3)
which states that no person shall be a member of the Village Panchayat
or continue as such who has encroached upon the Government land or
public property.
19 While it is true that both these terms are not defined in the
Act and they take their colour from ordinary and common parlance, yet
these have legal connotations. They have some purpose and meaning.
Their definite legal impact has always been understood and if one is
required to refer to their meaning in a Statute or law, a reference can
usefully be made to the Advanced Law Lexicon by P. Ramanatha Aiyar,
3 rd Edition Reprint 2007 , in which the term “Government land” has been
defined to mean the land belonging to the Government i.e. the land of
which the Government is the proprietor and does not include the land in
which the proprietary rights in the soil vest in a private individual,
whether or not it be subject to payment of assessment to the Government.
20 The term “public land” has also been defined in this very
work to mean such lands vesting in the Government and which are subject
to sale or other disposal under the general laws. The terms “public lands”
or “public domain” are habitually used to describe such as are vested in
the State and which are subject to sale or other disposal under the general
laws. There is no statutory definition of the words “public land” and their
meaning may vary for different purposes and they should be given such
meaning in each case as comforts with the intention of the parties using
the lands. However, the work also clarifies the land or land interest held
by the Government without regard to how the Government acquired
ownership; unappropriated land belonging to the federal or State
Government is also termed as public land and its other meaning is the
Government land and public ground.
21 Equally, the term “public property” has been always
understood to mean the property owned by the Government or local
bodies on behalf of the community in general. The “public property”
means any property belonging to the Government or any local authority.
The Prevention of Damage to Public Property Act, 1984 defines the term
“public property” as under:“
Section 2. Definitions:
(b) “public property” means any property, whether
immovable or movable (including any machinery)
which is owned by, or in the possession of, or under the
control of(
i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a
Central, Provincial or State Act; or
(v) any company as defined in Sec.617 of the
Companies Act, 1956; or
(vi) any institution, concern or undertaking which the
Central Government may, by notification in the Official
Gazette, specify in this behalf:
Provided that the Central Government shall not
specify any institution, concern or undertaking under
this subclause
unless such institution, concern or
undertaking is financed wholly or substantially by funds
provided directly or indirectly by the Central
Government or by one or more State Governments, or
partly by the Central Government and partly by one or
more State Governments.”
22 It is clear that the Bombay Village Panchayats Act, 1958,
specifies encroachment on Government land or public property.
Encroachment means an act which is wrongful and illegal or not
permissible in law. That is how encroachment upon Government land or
public property is understood. The term “public property” is also used in
the provision, so also, “Government land”. The encroachment on the
Government land or public property which includes public land, is an act
which invites disqualification. However, when there is disqualification
from being elected or continuing as a member for having committed
encroachment on the Government land or public property, then, the
concept has to be understood in the context of what can be described as
Government land or public property. The words have not been used in the
sense that a land or property capable of being used by the Government or
public will come within the legal provision in question. The land or
property must be a Government land or public property and that can only
be as set out above. It cannot be a vague or indefinite concept or else that
would create confusion and chaos. Ultimately, the words find their place
in the Bombay Village Panchayats Act, 1958 which is an Act to provide for
constitution and administration of the Village Panchayats.
23 That Act is to amend and consolidate the law relating to the
constitution and administration of the Village Panchayats and for certain
other matters. What the Act seeks to achieve is establishment of a Village
Panchayat for every village or group of villages and invest them with such
powers and authority as may be necessary to enable them to function as
units of local selfgovernment
and to carry out development activities in
rural areas. It is no doubt true that persons manning such institutions or
incharge of such affairs, need to possess high moral character and they
should not have indulged in acts which can be termed as illegal,
unauthorized or immoral. What the Legislature intends to achieve while
providing for disqualification not only at the time of election, but post
election as well, is to ensure clean, smooth, proper and efficient
administration of the Panchayat. These are institutions which are invested
with powers and authority so as to enable them to function as units of
local selfgovernment.
There should not be uncertainty even after
elections and if the authorities are to deal with a complaint or application
of the present nature, then, the least that is expected is that there are
specific allegations of wrongful acts and that there is adequate and
complete material in that behalf. In other words, after the Panchayat is
constituted and becomes functional, there should not be any unnecessary
hurdles and obstacles. In order to undertake development activities at the
rural level, the Panchayat must work and just as disqualified members
should not continue and complete their term, equally, frequent and
unending disputes must not disturb or disrupt its working. This can be
achieved only if genuine grievances and complaints are entertained.
24 In the instant case, what one finds is that the allegation is
that Survey No.626 is a private land. That certain portion therein has been
earmarked as open space. Pertinently such earmarking is in a layout
which is stated to be either prepared or submitted for sanction or approval
or approved or sanctioned. Nonetheless it relates to a private property. It
is equally true that the planning laws relied upon in this case or
otherwise, mandate the keeping of certain spaces as open and unbuilt so
as to ensure free and smooth flow of air and ventilation. That by itself
does not mean that such spaces, which may be also utilized for recreation
purposes, can be termed as belonging to the Government or local
authority or are public properties straightway.
25 The public property is one to which the members of public
have free and unrestricted access. That place or land or property may not
be owned by the Government or local authority, but if it belongs to or is
donated or granted or allotted for use of the members of public, then, it is
broadly understood as public property. The open space in the village
meant for use by the public or members of public or villagers is certainly a
public property, but if that concept is to be extended to spaces which are
earmarked as open but in a private land that would mean that the
earmarking or designation makes it a public property. It is a public
property and can be termed as such without any acquisition by the
Government or the local authority. That would mean that by mere
earmarking or designation such properties vest straightway in the State.
26 Way back in 1994 and to be precise while dealing with Civil
Appeal No.319/1976 decided on 26.10.1994 (Pt. Chet Ram Vashist (dead)
by L.Rs. v/s Municipal Corporation of Delhi reported in AIR 1995 SC 430),
a Two Judge Bench of the Hon'ble Supreme Court held that designation,
earmarking, reservation of spaces for public purposes is permissible in
cases of lands and layouts, which are private. What the Hon'ble Supreme
Court holds is that “reserving any site for any street, open space, park,
school etc. in a layout plan is normally a public purpose as it is inherent in
such reservation that it shall be used by the public in general. The effect of
such reservation is that the owner ceases to be a legal owner of the land
in dispute and he holds the land for the benefit of the society or the public
in general. It may result in creating an obligation in the nature of trust
and may preclude the owner from transferring or selling his interest in it.
It may be true as held by the High Court that the interest which is left in
the owner is a residuary interest which may be nothing more than a right
to hold this land in trust for the specific purpose specified by the coloniser
in the sanctioned layout plan. But, the question is, does it entitle the
Corporation to claim that the land so specified should be transferred to
the authority free of cost. That is not made out from any provision in the
Act or on any principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of public interest to
manage it in the interest of the society in general. But the right to manage
as a local body is not the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the transferor ceases to
be owner of it and the ownership stands transferred in the person in
whose favour it is transferred. The resolution of the Committee to transfer
land in the colony for parks and school was an order for transfer without
there being any sanction for the same in law. Thus, by a mere resolution
these lands could not be transferred and there has to be sanction for the
same in law.” (see para 6 on page 435).
27 If the concept is understood thus, it would become at once
clear that any open spaces, being carved out in a private layout, are meant
to be kept open by the owners and that cannot be built upon. It has to be
kept open and may be utilised for recreational or such other activities. For
such spaces to be termed as public properties, something more needs to
be done in law so as to vest them in State for the use and benefit of
public. That requires a sanction in law. If one were to straightway assume
based on the contents of the report of the Circle Officer or the Town
Planner that even such spaces in a private layout are not meant to be
utilized by the private owners and therefore, are capable of being taken
over by the local authority or local body, then, that would introduce an
element of uncertainty and in a given case, disqualify persons who are
duly elected members not for any unlawful act on their part. In these
circumstances to hold on the basis of the reports submitted by the officers
in this case that there is encroachment on the Government land or public
property, would be extremely risky and hazardous. That is certainly not
the intention of the Legislature in providing for disqualification of persons
for being elected as members of the Village Panchayat or to continue as
members upon election. If that had been the intent, that would have been
specified clearly and unequivocally. If the term Government land or public
property is understood in common parlance and in the context referred to
above, then, it is clear that the Petitioner who is allegedly guilty of having
encroached on open space in a private layout by permitting construction
of tin sheds thereon, cannot be disqualified for having encroached on a
Government land or public property. The wrongful acts committed by the
Petitioner on his private land and property can be dealt with under other
laws. The wrongful acts, if any, committed can be sternly and strictly dealt
with in accordance with law. All that is meant is that even an elected
member is answerable to law and if he has committed any unauthorised
or illegal act even in a private property, he can be either prosecuted or
penalised.
28 In the circumstances afore stated, the orders under challenge
cannot be upheld and deserve to be quashed and set aside on the ground
that the authorities had no power to disqualify the Petitioner for the acts
attributed to him. If he could not have been proceeded on the complaint
as it stands and on undisputed facts, then, the authorities have exceeded
their power in disqualifying the Petitioner. Their orders are exfacie
illegal,
erroneous and deserve to be quashed and set aside. They are, accordingly,
quashed and set aside. Rule is made absolute in the above terms, but
without any orders as to costs.
(S.C. Dharmadhikari, J)
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