S.C Dharmadhikari, J.:— The petitioner has been elected as a member of Gram Panchayat Bhor, Taluka Khed, Dist. Pune in the election held in the year 2010 and to be precise on 30th July, 2010. His tenure is for a period of 5 years. The respondent No. 3 made an application seeking to disqualify the petitioner. That application made under section 16 of the Act sought to disqualify the petitioner on three grounds viz., section 14(1)(g), 14(1)(h) and 14(1)(j-3) of the Bombay Village Panchayats Act (for short Act).

2. It is not necessary to refer to the grounds under section 14(1)(g) and (h) of the said Act because what has survived for consideration throughout is the ground of the petitioner allegedly having encroached on Government Land or public property, which is traceable to section 14(1)(j-3) of the Act.

3. The third respondent who made the complaint alleged that the petitioner has been elected from Ward No. 4. He is residing with his father Arun Chavan. Mr. Arun K. Chavan has encroached on the land which belongs to the village (Gavthan) by constructing a house of RCC walls which is without any prior sanction or authority from the Grampanchayat. That house is assessed at Sr. No. 584. Similarly, there is another grampanchayat land which is in possession of the said Arun Chavan, who has utilised the same despite the agreement for usage has come to an end. Equally, he has encroached on another Government land which is assessed at Sr. No. 584 by putting up a structure, known as Maharashtra Krishi Seva Kendra. Even this business and construction is without prior permission. It has, therefore, been alleged that the petitioner is disqualified for encroaching on Government land or public property.

4. The petitioner has filed a reply to this application contending that this property does not belong to him. His father Arun Chavan has constructed a house in 1994. That house has been constructed by him from his own income. The taxes in that behalf have also been paid by his father. There is no question of the petitioner encroaching on any of the portions or lands stated to be Government land or public property and making any construction thereon, much less the one alleged. In such circumstances, he cannot be disqualified.

5. When this application was placed before the Collector, he perused all the documents, including statements of the parties and the report of the Chief Executive Officer, Z.P Pune dated 29th November, 2010 and concluded that the petitioner is Ganesh Arun Chavan. However, the property is assessed in the name of Mr. Arun Chavan, father of the petitioner. It is Mr. Arun K. Chavan, father of the petitioner, who has constructed the structure and it is assessed in his name in the grampanchayat records. Equally, he has encroached upon open land belonging to Government and has set up a business there. A reference to the statement made on 8th September, 2010 would evidence this fact, according to the Collector.

6. In such circumstances and when in the Act in question insofar as the subject disqualification is concerned, the petitioner was held to be disqualified as it has been proved that he has taken advantage of the encroachment on Government land or public property, by being in possession thereof. That is how the application was allowed.

7. Aggrieved by this order dated 20th June, 2011 passed by the Collector, Pune disqualifying the petitioner, an appeal was filed before the Divisional Commissioner and the same was dismissed by the order impugned dated 10th April, 2012. Hence, this petition.

8. With the assistance of the Counsel appearing for parties, I have perused the petition and all annexures thereto, including the impugned orders. Once there is a statement made on record, admitting that the petitioner has not made any construction but his father Arun K. Chavan has made the construction in question and that it is he who has been using the Government land, then, such finding of fact should have been considered by the Commissioner while confirming the order of Collector, unless it was demonstrated that the same is perverse or vitiated by any error of law apparent on the face of record.

9. Both the Collector and Commissioner have recorded concurrently by relying upon a statement dated 8th September, 2010 which statement does not carry the case of third respondent any further. Learned Advocate appearing for respondent No. 3 has relied upon this statement to urge that there is an admission of encroachment committed by the petitioner. However, what this statement, if read in its entirety, would reveal is that the petitioner has not at all deviated from his case throughout that the property belongs to his father Arun K. Chavan; that it belongs to him and that he has not created any rights in anybody's favour during his lifetime; that he has made construction in 1994 of a shop and that he is paying grampanchayat taxes, property taxes and the property is assessed in his name. Equally, the portion where he is stated to be carrying on business in the name and style of Maharashtra Krishi Seva Kendra is also belonging to him. This is not a case where the petitioner has committed any encroachment on Government Land or public property. The admitted factual position should not have been ignored that once the property belongs to the petitioner's father Arun Chavan and that the construction on the said property, if at all, it could be termed as Government land or public property, has been made not by the petitioner but by his father Arun Chavan, then on the plain reading of section 14(1)(j-3) the petitioner could not have been disqualified.

10. There is nothing in the Act by which the concept of family or joint residence could be imported as far as the subject 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.

11. Therefore, on a plain reading of this provision what would be apparent is that it is the person who is intending to be a member of panchayat or who is a member cannot continue if that person has encroached upon the Government land or public property. As far as this aspect is concerned, the Legislature has not imported anything by which one can presume that if the encroachment is made by the spouse, relative of the member of grampanchayat, residing jointly with the Member, on the public property, then together with the members of such family, he is also deemed to be guilty of the act of encroachment. If the act is committed by somebody other than the elected person and, therefore, he incurs or invites disqualification, is not a conclusion which can be drawn or arrived at on a plain reading of section 14(1)(j-3).

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 a 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.

13. The Collector and Commissioner ought to have appreciated that, when, the Legislature makes a wrongful act of those other than the Member, it makes specific provision and in widest terms. In section 16(1D) of the Mumbai Municipal Corporation Act, 1888, the disqualification is for the act of spouse or dependent. This provision is pari materia to section 44(1)(c) of the Municipalities Act and reads as under:

“16(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the bye-laws framed under the said Acts; and has directly or indirectly been responsible for, or helped in his capacity as such Councillor, in carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any competent authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority.”

14. In such circumstances, in the teeth of the abovereferred findings of fact, the attempt by the authorities to read into the provisions the alleged role of the petitioner in residing in the structure/house along with the encroacher - father as a part of joint family or allegedly assisting him or making any statement on his behalf with regard to the subject encroachment will not be enough to disqualify the petitioner. By an interpretative process and merely because the petitioner is residing with his father, he cannot be disqualified from continuing as a member of the village panchayat in question. That would amount to disqualifying him and declaring his seat vacant, although, he is not responsible or has not committed any act which could be said to be encroachment on Government land or public property. There is nothing in the provision in question like the petitioner aiding his father or abetting in encroaching upon Government land or public property, which disqualifies him. If that was the Legislative intent, it would have said so in specific terms. That having not been stated, the impugned orders cannot be sustained. They are vitiated by an error of law apparent on the face of record. By ignoring the admitted factual position as also the statutory provision, the authorities have exceeded their powers and jurisdiction in disqualifying the petitioner. The petition is, therefore, allowed. Rule is made absolute in terms of prayer clauses (a) and (b). No costs.

Petition allowed.