Mumbai: The Bombay High Court has held that a member of a village panchayat cannot be disqualified, just because her spouse had encroached upon a government land or public property.
To incur disqualification under the law, such encroachment should have been done by the member alone and not by his or her spouse, the court ruled.
Accordingly, the court quashed an order of the Pune Divisional Commissioner, which disqualified Yallubai Kamble, the sarpanch of Phaye village in Kolhapur district, from being a member of the Gram Panchayat on the ground that she was living with her husband who had encroached upon government land.
"It will not be possible to hold that if an act complained of has been committed, in this case by the husband of the petitioner, then, the petitioner is disqualified", observed Justice SC Dharmadhikari recently.
"If the petitioner had encroached upon the government land, it was a different matter. That her husband has encroached upon a government land is an admitted position and obviously the petitioner resides with her husband. For that she should be disqualified is really reading something in the provision which is not there," the judge said.
"By reading in the provision that the petitioner is the wife and therefore party to encroachment or having a nexus therewith, she is held to be disqualified and disabled. That is not what is provided by the statute", the judge said.
"If the act is committed by somebody other than the elected person and therefore, he or she incurs or invites disqualification, is not a conclusion, which can be drawn or arrived at on a plain reading of section 14(1)(j3) of Bombay Village Panchayats Act", the judge noted.
Once the Legislature itself has clarified that an act of the member alone incurs disqualification, then, by interpretative process it will not be possible to include in section 14(1)(j3), the act of encroachment by members of his family and for that purpose, disqualify the elected member.
It is the act of the person seeking to contest election or functioning as a member which alone will attract the provision in question, the High Court held.
"On parity of this reasoning, one can safely conclude in this case that the petitioner cannot be disqualified or held to be as such. In these circumstances also I am not in a position to accept the argument that the petitioner`s husband having committed the wrongful act, it must be held that the petitioner has incurred disqualification", the judge opined.
The petitioner had challenged the order passed by Pune Divisional Commissioner on August 10, 2012, reversing the order of Kolhapur Additional Collector, which had held that she could not be disqualified. Being aggrieved, the petitioner moved the High Court in appeal.
The petitioner is an elected member of Grampanchayat of village Phaye in Bhudargad taluka of Kolhapur district. She was declared elected on December 26, 2010, for a period of five years. On January, 19, 2011, she was elected as Sarpanch.
A complaint had been filed before the Collector claiming that Yallubai had incurred disqualification under the law as she was staying in a house built on encroached land with her husband and in-laws.
Yallubai appeared before the Authority and claimed that the complaint was filed only because she was elected as Sarpanch (village head). She said if at all there was encroachment, it was by her husband Maruti Kamble and not her.
The Additional Collector held that it is not Yallubai, but her husband who had encroached upon the government land and therefore she cannot be held disqualified. He therefore dismissed the complaint.
An appeal was filed before the Pune Divisional Commissioner, who reversed the Collector`s order saying she was a party to encroachment as she stayed with her husband and in-laws in the same house built on encroached land.