Bombay High Court
Arun Kanhu Pawar vs Sakru Ganu Rathod on 21 July, 2011
Author: R. M. Savant
Bench: R. M. Savant
2107wp1907.11.odt 1/9
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...
::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 2/9RESPONDENTS :- 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.
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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 ::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 4/9 above 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.
::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 5/94) 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 ::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 6/9 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 ::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 7/9 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 ::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 8/9 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 ::: Downloaded on - 09/06/2013 17:32:08 ::: 2107wp1907.11.odt 9/9 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 ::: Downloaded on - 09/06/2013 17:32:08 :::