Kurian Joseph, J. - (1.) The crucial question to be decided is whether a family member of the original encroacher can be disqualified, under the Maharashtra Village Panchayats Act, 1958 (for short "the Act"). The enabling provision, as introduced by an amendment in 2006, reads as follows: "14.Disqualifications.-(1) No person shall be a member of a Panchayat, or continue as such, who xxx xxx xxx xxx xxx xxx Reason: (j-3) has encroached upon the Government land or public property; or ..."
(2.) On the undisputed facts of these cases, there is no allegation that the appellants are encroachers themselves, in the sense that they themselves first encroached upon the Government property and they continue to occupy the same. The allegation is that their father/grandfather are encroachers and they are the beneficiaries of the encroachment. According to the State and the contesting respondent, the beneficiary of an encroachment is also an encroacher.
(3.) The question that arises before us has been dealt with by several judgments of the High Court of Bombay. However there appears to be a conflict between the various decisions of the High Court. In Ganesh Arun Chavan v. State of Maharashtra and others; 2013 2 MhLJ 955 decided on 24.09.2012, the incumbent was sought to be disqualified on the ground of encroachment. The defense was that the encroachment was by his father and the house was constructed with the income of his father. The High Court made the following observations: "10. There is nothing in the Act by which the concept of family or joint residence could be imported as far as the subject of disqualification is concerned. The said provision contemplates encroachment upon the Government land or public property by a person, as in this case, who is a Member of the Panchayat. Therefore, the encroachment must be by the person who is a member and not any third party. xxx xxx xxx 12. The Legislature has taken care and wherever the concept of family or joint residence has to be applied, specific provision in that behalf has been made either substantively or by way of an Explanation. For illustration, if the disqualification is under section 14(1)(h) for failure to pay any tax or fee due to the panchayat or the Zilla Parishad, then, by virtue of Explanation 2, what the Legislature has done is to provide that failure to pay any tax or fee due to the panchayat or Zilla Parishad by a member of HUF or by person belonging to a group, then, that shall be deemed to disqualify all members of such family or as the case may be of the group or unit. Equally in case of clause 14(1)(g) where a person is said to be disqualified for having any interest either by himself directly or indirectly through or his partner, any share or interest in any work done by order of the panchayat or in any contract with by or on behalf of or employment with or under the panchayat, the Legislature by Explanation IA has clarified that a person shall not be disqualified under clause (g) by reason of only such person having a share or interest in any newspaper in which any advertisement relating to the affairs of the panchayat is inserted; or having a share or interest in the occasional sale to the panchayat of any article in which he regularly trades and having an occasional share or interest in the letting out or on hire to the panchayat of any article and equally having any share, interest in any lease for a period not exceeding ten years of any immovable property. Therefore, once the Legislature itself has clarified that an act of the member alone incurs or invites disqualification, then, by interpretative process it will not be possible to include in section 14(1)(j-3), the act of encroachment by members of his family and for that purpose, disqualify the elected representative. It is the act of the person seeking to contest election or functioning as a member which alone will attract the provision in question." ;