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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3086/2011
PETITIONERS :- 1. Jaitunabi Shekh Musa
Age: 28, Occ.: Laborer,
R/o. Ward No.1, Wara Jahagir,
Tq. & Dist: Washim. (Ori.Respondent)
...VERSUS...
RESPONDENTS :-
ig 1. Additional Commissioner
Amravati Division, Amravati.
2. Additional Collector,
Washim.
3. Taj Kha Bhikan Kha,
Age: 35 Yrs, Occ: Agriculture Labour,
R/o. Ward No.1 Wara Jahagir,
Tq. & Dist. Washim (Ori.Complainant).
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S/Shri A.M.Ghare, H.R.Gadhia, A.R.Deshpande, N.L.Jaiswal &
R.R.Dawda, learned counsel for the petitioner.
Shri A.D.Sonak, learned A.G.P. for respondent Nos.1 & 2.
Shri P.S. Patil, learned counsel for the respondent No.3.
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CORAM : R. M. SAVANT J.
DATED : 09.08.2011
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.
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2) The above petition filed under Articles 226 and 227 of the
Constitution of India takes exception to the order dated 18/05/2011
passed by the Additional Commissioner, Amravati Division Amravati, by
which order the Appeal filed by the respondent No.3 herein came to be
allowed and resultantly the order dated 24/01/2011 passed by the
Additional Collector, Washim in Gram Panchayat Case No.41/BVP
Act/16(2)/2009-2010 came to be set aside.
3) The petitioner herein was elected as a member of the Gram
Panchayat Wara Jahagir, District Washim. The respondent No.3 herein
had filed a complaint before the Additional Collector alleging that the
petitioner is disqualified under Section 14 (1) (j-3) of the Bombay Village
Panchayats Act on the ground that she has committed encroachment on
Government land being Plot No.585 of the said village. The respondent
No.3 in support of his case, relied upon Form No.8 maintained by the
Gram Panchayat, notice issued by the Gram Panchayat to the 28 persons
and the resolution of the Gram Panchayat passed some time in January,
2010. The said complaint of the respondent No.3 was replied to by the
petitioner and the petitioner relied upon the Property Card in respect of
Plot No.562, the Certificate Ex.D to the petition which inter alia is to the
effect that there is a change in the serial numbers of the property
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mentioned in Form No.8, and the two tax receipts for the years
1999-2000 and 2010-2011 in respect of House No.438 and House No.
585. The Additional Collector considered the said material and by his
order dated 24/01/2011 rejected the application filed by the respondent
No.3 inter alia holding that on the basis of the material on record, it could
not be said that the petitioner has encroached upon Plot No.585 which is
a Government land. It is significant to note that the Additional Collector
has alluded to the documents in respect of Plot No.562 and thereafter has
come to a conclusion on the basis of the certificate produced by the
petitioner that since the numbers of the property change in Form No.8
every four years, it cannot be said that the petitioner has encroached upon
Plot No.585.
4) Aggrieved by the said order dated 24/01/2011 passed by the
Additional Collector rejecting his application, the respondent No.3 filed an
Appeal under Section 16 (2) of the said Act before the Additional
Commissioner. The Additional Commissioner by the impugned order
dated 18/05/2011 has allowed the Appeal filed by the respondent No.3
and has thereby set aside the order passed by the Additional Collector.
The Additional Commissioner has held that the Additional Collector erred
in alluding to the facts related to Plot No.562 and has thereafter come to
an erroneous finding that the petitioner has not encroached upon Plot No.
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585. The Additional Commissioner on the basis of the copy of the
assessment list as well as the tax receipts, recorded a finding that the
petitioner has encroached upon Plot No.585. The Additional
Commissioner has also observed that the Additional Collector has erred in
allowing the petitioner to produce a document after the arguments were
over.
5) A reading of the order of the Additional Commissioner ex facie
discloses that the Additional Commissioner, who is the Appellate
Authority, has not considered the findings recorded by the Additional
Collector. It is for the Appellate Authority to consider whether the
findings recorded by the lower authority were just and proper. In the
instant case the allegations of the respondent No.3 were confined to Plot
No.585 and therefore the Additional Commissioner ought to have
considered the findings, if any, of the Additional Collector qua the said
issue, however, as can be seen from the order, the same is lacking in the
instant case. The Additional Commissioner ought to have recorded a
finding qua the encroachment of Plot No.585 considering the case of the
petitioner that the tax receipt in question is in respect of the house
property bearing No.585 and not a plot. The Additional Commissioner
therefore ought to have considered the matter from the perspective of the
case of the respective parties and the documents produced by them qua
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Plot No.585. In that view of the matter, the impugned order passed by
the Additional Commissioner dated 18/05/2011 is quashed and set aside
and the matter is relegated back to the Additional Commissioner for a
de novo consideration of the Appeal filed by the respondent No.3. On
remand the Additional Commissioner would be well advised to record his
findings in respect of the findings recorded by the Additional Collector
qua the encroachment on Plot No.585 by the petitioner. The case of the
petitioner that the tax receipt is purported to be that of a house property
and not a plot is also required to be addressed by the Additional
Commissioner. The parties to appear before the Additional Commissioner
on 29/08/2011. The Additional Commissioner thereafter to decide the
Appeal within a period of two months of the first appearance of the
parties.
6) Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
JUDGE
KHUNTE
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