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, 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 S C 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. (More)