Bombay High Court
Dhanraj Bhaidas Patil (Jadhav) vs The Divisional Commissioner, ... on 26 April, 2016
Bench: R.V. Ghuge
WP/7681/2012
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7681 OF 2012
Shri Dhanraj Bhaidas Patil (Jadhav),
Age 56 years, Occ. Agriculture,
R/o Chimtaval, Tq. Sindhkheda,
District Dhule. ..Petitioner
Versus
1. The Divisional Commissioner,
Nasik Division, Nasik.
2. The Collector, Dhule.
3. The Tahsildar,
Sindhkheda, Dist. Dhule.
4. The Grampanchayat
(Through the Gramsevak
Chimtaval, Tq. Sindhkheda,
District Dhule).
5. Shri Gulabsingh Soyara Girase,
Age 71 years, Occ. Agriculture,
R/o Chimtaval, Tq. Sindhkheda,
District Dhule. ..Respondents
...
Advocate for Petitioner : Shri Patil Shrikant S.
AGP for Respondents 1 to 3 : Shri Basarkar A.P.
Advocate for Respondent 4 : Shri Pawar P.B.
Advocate for Respondent 5 : Shri Patil Vijay B.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: April 26, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
WP/7681/2012
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
4. The petitioner is aggrieved by the order dated 5.1.2012 delivered by
respondent No.2, thereby allowing the Complaint filed by respondent No.5
and concluding that the petitioner stands disqualified under Section 14(j-3)
of the Maharashtra Village Panchayat Act. The petitioner is further
aggrieved by the judgment of respondent No.1 - appellate authority dated
18.6.2012, by which Appeal No.16 of 2012 filed by the petitioner has been
dismissed.
5. The submissions of Shri Patil, learned Advocate for the petitioner can
be summarized as under:-
(a) Respondent No.5 - Gram Panchayat resolved in 1980 to allot a
piece of land to 12 agriculturists for erecting a cattle shade and for
residing in the said area. Respondent No.5 was the Chairman of the
Gram Panchayat committee which granted / allotted the land
admeasuring 30x50.
(b) Such land was allotted to 12 persons.
(c) The petitioner has erected his residence on the said land in
1982.
WP/7681/2012
(d) The Gram Panchayat has allotted House No.66 to the said
structure and the petitioner is paying taxes.
(e) The elections to the Gram Panchayat were declared in 2010
and the petitioner was elected as a Member of the Gram Panchayat.
(f) Subsequently, he was elected as a Sarpanch of the Village.
(g)
Respondent No.6 filed a Gram Panchayat Dispute in 2011,
alleging therein that Government land admeasuring 1 Hectare and 1
Are was illegally allotted to the petitioner and he has erected a
permanent structure in the form of his residence.
(h) His permanent structure admeasures 50x16½ which is 825 sq.
ft. and the tin shade admeasures 30x16½ which is 495 sq. ft.
(i) Said construction is suppressed in the nomination form.
(j) The petitioner has encroached upon the said land and has
erected the structure without obtaining any permission from any
statutory authority.
(k) Above contention of respondent No.5 are baseless and the
same do not require any consideration.
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(l) Sub-section (j-3) under Section 14 was introduced in 2006 and
the same is, therefore, not applicable to the election of the
petitioner, which took place in 2010.
(m) The Circle Officer carried out an enquiry on the request of
respondent No.5 and submitted his report to the District Collector,
concluding that there is an encroachment on the Government land at
the behest of the petitioner, which report was never supplied to the
petitioner.
(n) The petitioner is a bonafide user and occupier of the
properties at issue and there is no willful encroachment committed
by him.
(o) His term has already ended and as such, the dis-qualification
for the entire life time calls for an interference.
(p) He has been occupying the said property for 30 years when the
fifth respondent lodged a complaint.
(q) The matter needs to be remanded for a detailed enquiry and
for reconsidering the above contentions, which have been raised by
the petitioner and never considered by the lower authorities.
WP/7681/2012
6. Learned AGP appearing on behalf of respondent Nos.1 to 3 relies
upon the affidavit-in-reply filed by the Naib Tahsildar - Grade II, Tahsil
Office, Sindhkheda, dated 28.6.2013. He submits that it is the contention
of the State that the land allotted to the petitioner and other 11 persons
was unauthorizedly distributed by the Village Panchayat for cattle shade
and residential purpose. No permission was taken from the District
Collector, Dhule in this regard. The said land has been entered in the name
of the petitioner in Extract No. 8 without authorization. The learned
Judicial Magistrate (F.C.), Sindhkheda has directed to make an investigation
under Section 156(3) of the Criminal Procedure Code in RC No.155 of 2011.
7. He further submits, in the light of the affidavit filed, that no
permission was taken for allotment of the land as well as for erecting any
permanent structure on the said land.
8. Shri Pawar, learned Advocate appearing for respondent No.4 - Gram
Panchayat submits that the petitioner was in possession of the land for
almost 28 years when the election took place. Till today, there has been no
decision as to whether the land has been illegally allotted to the petitioner
or not. All the 12 persons, who were allotted the land have been in peaceful
possession. It is only after the election that respondent No.5, who was the
Sarpanch of the village in 1980 and himself being instrumental in
sanctioning the land to the petitioner, has lodged a complaint. He further
submits that the report of the Circle Officer was never supplied, either to
the Gram Panchayat or to the petitioner.
WP/7681/2012
9. I have considered the submissions of the learned Advocates for the
respective sides.
10. The allotment of land by the Gram Panchayat to the petitioner is not
in dispute. The resolution passed by the Gram Panchayat for allotting the
land in 1980 is also not in dispute. The 12 persons to whom the land was
allotted, have been in possession of the said land and are residing over the
said land, is also not in dispute.
11. Respondent No.5 was himself the Sarpanch of the said village when
the land was allotted to the 12 persons, including the petitioner in 1980.
Until the result of the elections in 2010, he has never complained against
any of these 12 persons that they are illegally in possession of the land.
12. On the complaint of respondent No.5, the Circle Officer, commonly
known as the Mandal Officer, carried out an enquiry and submitted a report
that the Gram Panchayat has illegally allotted the land to the petitioner
and 11 other persons. None of the litigating sides are in a position to state,
whether the report of the Circle Officer would amount to an adjudication of
the issue, as to whether the petitioner is illegally in possession of the said
plot.
13. In so far as the submission of the petitioner is concerned that he was
not supplied with a copy of the Circle Officer's report, I do not find any
WP/7681/2012
merit in the said submission since respondent No.5 in his memo of the
complaint had categorically stated in paragraph No.4 that a report has been
submitted by the Circle Officer expressing an opinion that the petitioner
has been unauthorizedly given the possession of the plot and he has illegally
constructed the permanent structure. The petitioner, in response to the
said complaint, could have sought a copy of the report. No such request
appears to have been made either before respondent No.2 or respondent
No.1 seeking a copy of such report.
14.
It is an admitted position that the land allotted to the petitioner is
30x50 i.e. 1500 sq. ft. It is also an admitted position that the concrete
structure erected by the petitioner is 50x16½ and the tin shade is 30x16½.
15. I find that a proper procedure has not been followed by the State
authorities to arrive at a legal conclusion that the land / plot allotted to
the petitioner has been a result of an illegal resolution. If that be so, the
statutory authorities should have recovered the possession of the said 12
plots allotted to the 12 persons and for which the due process as laid down
in law needs to be followed for dispossessing these 12 persons. The opinion
of the Circle Officer is not a result of an adjudicatory process and does not
tantamount to a decision by the competent authority.
16. In the light of the above, both the impugned judgments are based
upon the Circle Officer's report without conducting a proper enquiry with
regard to the purported illegal allotment of the property and an illegal
WP/7681/2012
structure erected by the petitioner. Based on the report of the Circle
Officer, the lower authorities have disqualified the petitioner under Section
14(j-3) of the Maharashtra Village Panchayat Act.
17. Considering the fact that the term of the petitioner is already over,
even if the matter is remanded for a proper adjudication, there is no
necessity for restoring the status of the petitioner as an elected Member of
the Gram Panchayat.
18.
I am fortified in my above recorded conclusions by the judgment of
this Court in the matter of Gajanan Hariba Susar Vs. Additional
Commissioner and others [2011 (6) BCR 427], wherein, this Court has
concluded that the report of the Talathi cannot be the sole basis for
concluding that a person is an encroacher.
19. In the light of the above, this petition is partly allowed. The orders
impugned dated 5.1.2012 delivered by respondent No.2 and 18.6.2012
delivered by respondent No.1 are quashed and set aside. The Gram
Panchayat Appeal No.16 of 2012 is disposed off. The Gram Panchayat
Dispute No. 34 of 2011 is remitted back to the second respondent for a
proper adjudication and especially on the following issues:-
(A) Whether the plot was illegally allotted by the Gram Panchayat
to the petitioner?
WP/7681/2012
(B) Whether the petitioner had obtained legal sanction for
erecting permanent structure by way of a residence on the said plot?
(C) Whether the permanent structure and the tin shade erected
by the petitioner and as is disclosed in his nomination form, on
internal page 4, amounts to an encroachment and whether such
encroachment is over the Government land?
Needless to state, if the conclusions of the statutory authority
indicate that the plots were illegally allotted to the petitioner along with 11
other persons, the said authorities shall resort to appropriate procedure laid
down in law for recovery of the said possession, from these 12 persons.
20. It is expected that respondent No.2 shall decide Gram Panchayat
Dispute No. 34 of 2011 on it's own merits and as expeditiously as possible,
preferably on/or before 31.1.2017.
21. Rule is, therefore, made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
