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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NOS.1907/2011, 1908/2011 & 3435/2011
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WRIT PETITION NO.1907/2011
PETITIONER :- Arun Kanhu Pawar,
Aged 21 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.
ig …VERSUS…
RESPONDENTS :- 1. Sakru Ganu Rathod,
Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.
2. Additional Commissioner,
Amravati Division, Amravati.
3. Additional Collector, Yavatmal,
District Yavatmal.
4. Secretary, Gram Panchayat Mhaismal,
Post Belora, Tahsil Pusad,
District Yavatmal.
WITH
WRIT PETITION NO.1908/2011
PETITIONER :- Vikas Zapa Pawar,
Aged 30 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.
…VERSUS…
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RESPONDENTS :- 1. Sakru Ganu Rathod,
Aged 65 years, Occupation agriculturist,
R/o Mhaismal, Post Belora,
Tahsil Pusad, District Yavatmal.
2. Additional Commissioner,
Amravati Division, Amravati.
3. Additional Collector, Yavatmal,
District Yavatmal.
4. Secretary, Gram Panchayat Mhaismal,
Post Belora, Tahsil Pusad,
District Yavatmal.
ig WITH
WRIT PETITION NO.3435/2011
PETITIONER :- Sou. Savita Shalik Chavan,
Aged about 29 years, Occup. Agriculturist,
R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.
…VERSUS…
RESPONDENTS :- 1. Addl. Commissioner,
Amravati Division, Amravati.
2. Addl. Collector, Yavatmal,
3. Secretary, Gram Panchayat Mhaismal,
Post Belora, Tq.Pusad,
Distt. Yavatmal.
4. Sakru Ganu Rathod,
Aged 65 years, Occup. Agriculturist,
R/o Mhaismal, Post Belora,
Tq. Pusad, District Yavatmal.
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—————————————————————————————————–
In W.P. Nos.1907 & 1908 of 2011
S/Shri R. Deo & P.B.Patil, learned counsel for the petitioner.
Shri R.N.Ghuge, learned counsel for the respondent No.1.
Shri A.D. Sonak, learned AGP for respondent Nos.2 and 3
Shri S. P. Pawar, learned counsel for the respondent No.4.
In W.P. Nos.1907 & 1908 of 2011
Shri P.B.Patil, learned counsel for the petitioner.
Shri A.D. Sonak, learned AGP for respondent Nos.1 and 2.
Shri S. P. Pawar, learned counsel for the respondent No.3.
Shri R.N.Ghuge, learned counsel for the respondent No.4.
—————————————————————————————————–
ig
CORAM : R. M. SAVANT J.
DATED : 21.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and
heard.
2) The above writ petitions take exception to the orders passed by the
Additional Commissioner, Amravati Division, Amravati, by which orders
the Additional Commissioner in each of the above petitions has allowed
the Appeals filed by the complainant i.e. the respondent No.1 herein
Sakru Ganu Rathod in Writ Petition No.1907/2011 and thereby has
disqualified the petitioner in Writ Petition No.1907/2011 as Sarpanch and
the petitioners in Writ Petition Nos.3435/2011 and 1908/2011 as
members of the Gram Panchayat Mhaismal. The petitioners in each of the
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2107wp1907.11.odt 4/9above petitions were elected as members of the Gram Panchayat
Mhaismal in the elections held in the year 2010. Thereafter the petitioner
in Writ Petition No.1907 was elected as the Sarpanch of the Gram
Panchayat Mhaismal. The respondent No.1 herein i.e. Sakru Ganu
Rathod, who is the complainant in all the matters, had also contested the
elections to the post of Sarpanch and had lost the same. The respondent
No.1 filed an application against each of the petitioners above named
under Section 14 (1) (j-3) of the Bombay Village Panchayats Act, 1958
(for brevity referred to as the “said Act”) seeking disqualification of the
petitioners on the ground that they have carried out encroachment on
Government land.
3) In so far as Writ Petition No.1907/2011 is concerned, it is the case
of the respondent No.1 that he filed complaint before the Additional
Collector that the father of the petitioner one Kanhu Zapa Pawar has
encroached upon the Government land and the petitioner herein i.e. Arun
Kanhu Pawar, who is presently prosecuting his study at Mukhed, District
Nanded, is disqualified to be a member of the Gram Panchayat.
Similarly, averment is there in the complaint filed against the petitioner in
Writ Petition No.1908/2011. In so far as the petitioner in Writ Petition
No.3435/2011 is concerned, the averment in the complaint against the
said petitioner is that her father-in-law had carried out construction. The
said complaints were replied to by each of the petitioners above named.
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4) It was the case of the petitioners that they are residing in the
locality known as New Tanda Basti along with 50 to 60 other families
wherein the basic amenities like road, drinking water, etc. had been
provided to them and that the Gram Panchayat has been recovering
property tax for the structure in question. It appears that the Gram
Panchayat also filed its reply in the said proceedings and stated that the
petitioners in the above petitions are the residents of the said New Tanda
Basti wherein 50 to 60 families have been residing since last 30 to 40
years and that the Gram Panchayat is recovering taxes in respect of the
said structures.
5) The Additional Collector, Yavatmal considered the said application
filed by the complainant i.e. the respondent No.1 herein and by his order
dated 13th December, 2010 rejected the said application. Similarly, is
the position in Writ Petition No.1908/2011 as also in Writ Petition
No.3435/2011.
6) Aggrieved by the said order dated 13th December, 2010, the
respondent No.1 Sakru Ganu Rathod filed an Appeal before the State
Government. The said Appeal was tried by the Additional Collector and
by the impugned order dated 07/04/2011 in Writ Petition No.1907/2011
as well as in Writ Petition No.1908/2011, allowed the said Appeals and
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resultantly disqualified the petitioners in each of the above petitions to
be Sarpanch and members respectively. In so far as Writ Petition
No.3435/2011 is concerned, the order is dated 06/06/2011 disqualifying
the petitioner therein.
7) In so far as the order of the Additional Collector is concerned, The
Additional Collector, as can be ex facie seen from his order dated 13th
December, 2010, considered the material that was placed on record by the
petitioners, which included the extract of the tax register wherein the
payment of tax in so far as the structure of the petitioner was concerned,
was shown. The Additional Collector took into consideration the fact that
though the owner’s name is mentioned as Government, the name of the
person shown in possession is Kanhu Zapa Pawar against the structure
bearing No.264. The Additional Collector also took into consideration the
fact that there is no proceeding pending in any Court in respect of the
alleged encroachment. The Additional Collector relying on the said
documents and also considering the fact that no contra material was
produced by the respondent No.1, came to a conclusion that it could not
be said that the encroachment by the petitioners was proved.
8) In so far as the Additional Commissioner, who was the Appellate
Authority, is concerned, the Appellate Authority seems to have been
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swayed by the fact that the land is shown to be belonging to the State
Government and, therefore, even if the basic amenities, etc. are given to
the occupants of the said new Tanda Basti and even if the tax has been
recovered by the Gram Panchayat, that would be of no avail. The
Additional Commissioner to say the least has by a cryptic order allowed
the said Appeal without considering the matter in its proper perspective
qua the allegation which was made in terms of the ground available in
Section 14 (1) (j-3) of the said Act. The Additional Commissioner has not
even adverted to the case of the respondent No.1 complainant that it was
the father of the petitioner, who had allegedly encroached upon the
Government land and whether on the said basis the petitioner could be
disqualified under Section 14 (1) (j-3) of the said Act on the said ground.
However, by merely referring to the word ‘encroachment’ as appearing in
Section 14 (1) (j-3), the Additional Commissioner has allowed the Appeal
and disqualified the petitioner in Writ Petition No.1907/2011 as also the
petitioner in the other two petitions on the ground that they had
committed encroachment. The said order of the Additional Commissioner
makes a totally unsatisfactory reading. It is expected of a quasi judicial
authority to record finding of facts as well as law, when it is dealing with
the matter within its jurisdiction more so when it is dealing with a matter
as serious as the disqualification of the members of the Gram Panchayat
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and the Sarpanch. The same is totally found lacking in the impugned
orders. In that view of the matter, the impugned orders in all the above
petitions passed by the Additional Commissioner are required to be set
aside and the matters are required to be relegated back to the Additional
Commissioner for a de novo consideration. Hence, the following
directions.
i) The impugned orders dated 07/04/2011 (subject matter of Writ
Petition Nos.1907/2011 and 1908/2011) and order dated
06/06/2011 (subject matter of Writ Petition No.3435/2011) are
quashed and set aside.
ii) The Appeals are remanded back to the Additional Commissioner
for a de novo consideration.
iii) The Additional Commissioner to consider the matters in the
context of the pleadings of the parties having regard to the case of
the complainant and the reply filed by the petitioners herein.
iv) The issue would have to be considered on the touchstone of
Section 14 (1) (j-3) of the Bombay Village and Panchayats Act,
1958 and finding would have to be recorded as to whether in the
light of the case of the complainant himself whether the petitioners
in each of the above petitions can be disqualified.
v) The Additional Commissioner to consider in the light of the
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material on record of the new Tanda Basti being in existence for
the last 30 to 40 years, the said new Tanda Basti being provided the
basic amenities, the taxes being recovered by the Gram Panchayat,
and in the light of the aforesaid facts whether the petitioners can
be said to be encroachers on Government property.
vi) The parties would be entitled to file further replies/documents, if
so advised.
vii)
The Additional Commissioner to deal with the contentions of the
parties and record findings and pass a well reasoned order in the
Appeals.
viii) The parties to appear before the Additional Commissioner on 16th
August, 2011. The Additional Commissioner thereafter to decide
the Appeals within a period of two months from the first
appearance of the parties.
9) Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
JUDGE
KHUNTE
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