Bombay High Court
Sau. Lalita Dilip Khandalkar vs The Additional Commissioner, Amravati ... on 22 March, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 WP8618-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.8618 of 2018
...
Sau. Lalita Dilip Khandalkar,
Aged 36 years, Occupation: Household,
Gram Panchayat Member,
Gram Panchayat Amdapur,
R/o Amdapur, Tq. Chikhli,
Dist. Buldhana. .. PETITIONER
.. Versus ..
1. The Additional Commissioner,
Amravati Division, Amravati.
2. The Additional Collector,
Buldhana.
3. Gajanan Sonaji Chopade,
Aged 46 years, Occupation:
Agriculture, R/o Amdapur,
Tq. Chikhli, Dist. Buldhana. .. RESPONDENTS
Mr. K.P. Mahalle, Advocate for Petitioner.
Mr. S.B. Bissa, AGP for Respondent Nos. 1 & 2.
Mr. S.S. Dhengale, Advocate for Respondent No.3.
....
CORAM : MANISH PITALE, J.
DATED : MARCH 22, 2019.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 2 WP8618-18.odt with the consent of the learned counsel appearing for the parties.
2. By this writ petition, the petitioner has challenged order dated 06.08.2018 passed by the respondent no.2- Additional Collector holding that the petitioner was liable to be disqualified under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959 on the ground of having encroached upon Government land and order dated 29.11.2018 passed by the respondent no.1- Additional Commissioner, dismissing the appeal of the petitioner and confirming the order of respondent no.2.
3. The petitioner was elected as Member of the Gram Panchayat Amdapur, Tahsil Chikhali, District Buldhana, in August, 2015. The respondent no.3 submitted an application for disqualification of the petitioner under Section 14(1)(j-3) of the aforesaid Act on 03.01.2018, contending that although the available Aakhiv Patrika demonstrated that the house in which the petitioner was living with her husband, was on plot admeasuring 1196 sq.ft., the petitioner and her family had actually constructed the house on excess area i.e. on 1352 sq.ft. On this basis, it was contended that the excess area of ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 3 WP8618-18.odt 156 sq.ft. was illegally taken from Government land, thereby showing the encroachment and making the petitioner liable for disqualification under the aforesaid provision.
4. In pursuance of the said application filed by the respondent no.3, the respondent no.2 -Additional Collector called for a report from the Circle Officer, Amdapur, as regards the allegations made in the application. On 17.02.2018 the Circle Officer Amdapur along with the Talathi of Amdapur submitted a report stating that the property in question bearing no. 866 appeared to be covering a total area of 1352 sq.ft. as per property card but since there was a partition in the brothers, there appeared to be separate portions of the said property. It was further recorded in the said report that since there was absence of markings of F Class land, it was necessary that a spot inspection and measurement is carried out for ascertaining the facts. Thereafter, on 07.04.2018 the Circle Officer along with the Talathi and the Rural Development Officer submitted a report to the respondent no.2 Additional Collector stating that upon visiting the spot, it was found that as per the record of the Gram Panchyat the area of the property was supposed to be 1352 sq.ft. but the actual measurement showed that the property covered 1566 sq.ft. ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 :::
4 WP8618-18.odt and further that there was a slab constructed on a Nali (drain) on the front side of the property in the western direction which admeasured 195.50 sq.ft.
5. On the basis of the aforesaid material that came on record, the respondent no.2 Additional Collector passed the impugned order dated 06.08.2018, holding that when the area of the property as per the Gram Panchayat record was supposed to be 1352 sq.ft. and the actual dimensions of the property in possession of the petitioner was found to be 1566 sq.ft. , it was clear that the petitioner had illegally constructed upon Government land and it was proved that there was encroachment in the present case. On this basis, the respondent no.2- Additional Collector allowed the application of the respondent no.3 and held that the petitioner stood disqualified as Member of the said Gram Panchayat. Aggrieved by the same, the petitioner filed appeal before the respondent no.1 - Additional Commissioner under Section 16(2) of the aforesaid Act. By the impugned order dated 29.11.2018, the respondent no.1- Additional Commissioner dismissed the appeal and confirmed the order of the respondent no.2- Additional Collector. In the said order, the respondent no.1- Additional Commissioner held that even the sale deed of the ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 5 WP8618-18.odt said property demonstrated that there was Government land on the east and that the material on record demonstrated that the petitioner was in possession of property admeasuring 1566 sq.ft., thereby demonstrating that there was an encroachment of 214 sq.ft. (1566 sq.ft. - 1352 sq.ft.). Although the respondent no.1- Additional Commissioner recorded that the order of the respondent no.2 - Additional Collector did not appear to be specific, but he opined that the petitioner had failed to provide any justification for the unauthorized additional area found in her possession. On this basis, the respondent no.1- Additional Commissioner confirmed the order of disqualification passed against the petitioner.
6. Mr. K.P. Mahalle, learned counsel appearing for the petitioner, submits that respondent nos. 1 and 2 had committed an error in passing the order of disqualification against the petitioner because the material on record was not sufficient to show that the petitioner was indeed guilty of encroaching Government land. It was submitted that the slabs that were constructed on the drain on the front side of the property were necessary for access to the property and that, therefore, it could not be said to be encroachment at all. It was also pointed out that the owners of other properties in the row ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 6 WP8618-18.odt where this property was situated, had also constructed such slabs and it further demonstrated that the said slabs could not be said to be encroachment on Government land. Insofar as the area of 214 sq.ft. of additional area allegedly in possession of the petitioner was concerned, it was submitted that in the first place that there was no such allegation made against the petitioner and secondly that the only material on which the aforesaid conclusions were drawn by respondent nos. 1 and 2 was the report dated 07.04.2018, whereby the Circle Officer along with others had purportedly visited the spot and conducted measurement. It was submitted that the petitioner was never put to notice in respect of the said exercise and that it was not clear from the said report as to whether the alleged excess area found in possession of the petitioner was on Government land. On this basis, it was submitted that the impugned orders deserved to be said aside and the petition was required to be allowed.
7. On the other hand, Mr. S.S. Dhengale, learned counsel appearing for respondent no.3, submitted that the initial report of the Circle Officer and the Talathi dated 17.02.2018 read with the report dated 07.04.2018 indeed makes it clear that not only had the petitioner encroached upon the Government land ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 7 WP8618-18.odt on the western side by illegally constructing slab upon the drain, but the petitioner had further clearly encroached upon 214 sq.ft. of F class Government land on the eastern side i.e. rear portion of the property. It was submitted that the only conclusion that could have been drawn on the basis of the said reports was that the petitioner had encroached upon the Government land on both the front as well as the rear side of the house. On this basis it was submitted that the writ petition deserved to be dismissed.
8. Mr. Bissa, learned AGP, has appeared on behalf of respondent nos. 1 and 2.
9. Heard learned counsel for the parties and perused the record.
10. A perusal of the material on record in the present case shows that the crucial aspect of encroachment on Government land has been addressed by respondent nos. 1 and 2 on the basis of the aforesaid two reports dated 17.02.2018 and 07.04.2018, prepared by the Circle Officer along with the Talathi and the Rural Development Officer. The said reports pertain to the area covered by the property in ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 8 WP8618-18.odt question wherein the petitioner admittedly resides along with her family and the measurement as well as spot inspection report carried out by the Circle Officer along with others. A perusal of these two reports does not show any conclusion or finding that there has been indeed encroachment on Government land. It is stated that on the front side, there appears to be construction of slab on a drain that exists between the property and the Government road, and further that the total area in possession of the said property which the petitioner enjoys is 1566 sq.ft. when the Gram Panchayat record shows that the property is recorded to the extent of only 1352 sq.ft. In the report dated 07.04.2018, there is also reference to the fact that on the eastern side i.e. the rear portion of the property, there exists Government land. This is clearly corroborated by the sale deed on record, which also shows that the Government land exists on the eastern portion of the house.
11. It is on the basis of this material that the respondent no.2 Additional Collector and the respondent no.1 - Additional Commissioner have concluded that the petitioner has encroached upon 214 sq.ft. (1566 sq.ft. - 1352 sq.ft.) on the eastern side. It is found by the authorities that there exists F ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 9 WP8618-18.odt class Government land on the eastern side of the property and that the aforesaid excess portion is an encroachment on the said land. Both the authorities have not placed much emphasis on the slab found constructed on the western portion of the property and emphasis is placed on the aforesaid excess 214 sq.ft. area found in possession of the petitioner. A perusal of the two reports dated 17.02.2018 and 07.04.2018 does not show that the rival parties i.e. the petitioner and the respondent no.3 were put to notice before spot inspection and measurement was carried out and findings were given in the said reports. In any case, the findings regarding encroachment of 214 sq.ft. on the eastern portion of Government land is an interpretation given by respondent nos. 1 and 2 on the basis of the said two reports. In order to arrive at a specific finding, recording the area of encroachment and the fact of encroachment on Government land, it would have been appropriate that the reports on which respondent nos. 1 and 2 relied upon specifically mentioned such a fact. To arrive at such finding by process of interpretation does not appear to be appropriate.
12. In any case, there is nothing on record to show that the spot inspection and measurement was carried out in the ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 10 WP8618-18.odt presence of either the respondent no.2 or more particularly the petitioner, who was likely to be adversely affected by the findings in such report.
13. Respondent nos. 1 and 2 failed to take into consideration the said aspect. Although it appears that in the appeal filed before respondent no.1 - Additional Commissioner, the petitioner has not raised such a specific ground but since disqualification of a person who has been elected as Member of the Gram Panchayat is a serious matter and by an order the respondent no.2 - Additional Collector has set aside the election of such a person, it is necessary that proper opportunity is given to such a person to dispute material that may come on record in the process of enquiry into the allegations made by the complainant i.e. the respondent no.3. Considering the seriousness of the nature of order that the respondent no.2 - Additional Collector proposed to pass under Section 14(1)(j-3) of the aforesaid Act, it was necessary that the petitioner was given ample opportunity to remain present during spot inspection and measurement to raise objections, if any, against such exercise.
14. In view of the above, this Court finds that the writ ::: Uploaded on - 26/03/2019 ::: Downloaded on - 04/04/2020 16:01:40 ::: 11 WP8618-18.odt petition deserves to be partly allowed. Accordingly the impugned orders passed by respondent nos. 1 and 2 are quashed and set aside and the matter is remanded to the respondent no.2 -Additional Collector for further enquiry. It is directed that a fresh spot inspection and measurement of the property be undertaken under the orders of respondent no.2- Additional Collector. The petitioner and respondent no.3 shall be given notices about carrying out of such an exercise. It is after such an exercise is carried out and the parties are given opportunity to lead evidence in the context of such exercise of spot inspection and measurement that the respondent no.2- Additional Collector shall proceed to decide the application filed by the respondent no.3 under Section 14 (1)(j-3) of the aforesaid Act.
15. The parties shall appear before the respondent no.2- Additional Collector on 04.04.2019.
16. The respondent no.2- Additional Collector shall make an endeavor to dispose of the application filed by the respondent no.3 under Section 14(1)(j-3) of the Act expeditiously and in any case within a period of three months from today.
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17. Rule made absolute in the aforesaid terms with no order as to costs.
(Manish Pitale, J. ) ...
halwai/p.s.
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