Bombay High Court
Shivaji Raghoji Sose vs The State Of Maharashtra And ... on 19 December, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.11302 of 2016
* Gajanan s/o Gangadharrao Sose,
Age 30 years,
Occupation : Agriculture,
R/o Chitrawadgaon,
Taluka Ghansawangi,
District Jalna. .. Petitioner.
Versus
1) The State of Maharashtra,
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai.
2) The Additional Commissioner,
Aurangabad Division, Aurangabad.
3) The Additional Collector, Jalna,
District Jalna.
4) The Tahasildar, Ghansawangi,
Taluka Ghansawangi, District Jalna.
5) Circle Officer, Ranjani Circle,
Taluka Ghansawangi, District Jalna.
6) Talathi, Sajja Yeola (Chitrawadgaon)
Taluka Ghansawangi, District Jalna.
7) The Gramsevak,
Grampanchayat Chitrawadgaon,
Taluka Ghansawangi,
District Jalna.
8) Sunita w/o Chatrabhuj Damale
Age 35 years,
Occupation: Agriculture,
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R/o Chitrawadgaon,
Post Karadgaon,
Taluka Ghansawangi,
District Jalna.
9) Chatrabhuj s/o Gulabrao Damale,
Age 38 years,
Occupation: Agriculture,
R/o Chitrawadgaon,
Post Karadgaon,
Taluka Ghansawangi,
District Jalna. .. Respondents.
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Shri. Sambhaji S. Tope, Advocate, for petitioner.
Shri. S.K. Tambe, Assistant Government Pleader, for
respondent Nos.1 to 6.
Shri. S.K. Sawangikar, Advocate for respondent Nos.8 & 9.
----------
With
Writ Petition No.11305 of 2016
* Bhagwat s/o Ramkisan Sose,
Age 30 years,
Occupation : Agriculture,
R/o Chitrawadgaon,
Taluka Ghansawangi,
District Jalna. .. Petitioner.
Versus
1) The State of Maharashtra,
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai.
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2) The Additional Commissioner,
Aurangabad Division, Aurangabad.
3) The Additional Collector, Jalna,
District Jalna.
4) The Tahasildar, Ghansawangi,
Taluka Ghansawangi, District Jalna.
5) Circle Officer, Ranjani Circle,
Taluka Ghansawangi, District Jalna.
6) Talathi, Sajja Yeola (Chitrawadgaon)
Taluka Ghansawangi, District Jalna.
7)
The Gramsevak,
Grampanchayat Chitrawadgaon,
Taluka Ghansawangi, District Jalna.
8) Anita w/o Prabhakar Shinde,
Age 35 years,
Occupation: Agriculture,
R/o Chitrawadgaon, Post Karadgaon,
Taluka Ghansawangi, District Jalna.
9) Prabhakar s/o Laxman Shinde,
Age 38 years,
Occupation: Agriculture,
R/o Chitrawadgaon, Post Karadgaon,
Taluka Ghansawangi,
District Jalna. .. Respondents.
--------
Shri. Sambhaji S. Tope, Advocate, for petitioner.
Shri. S.K. Tambe, Assistant Government Pleader, for
respondent Nos.1 to 6.
Shri. S.K. Sawangikar, Advocate for respondent Nos.8 & 9.
----------
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With
Writ Petition No.11307 of 2016
* Shivaji s/o Raghoji Sose,
Age 50 years,
Occupation : Agriculture,
R/o Chitrawadgaon,
Taluka Ghansawangi, District Jalna. .. Petitioner.
Versus
1) The State of Maharashtra,
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai.
2) The Additional Commissioner,
Aurangabad Division, Aurangabad.
3) The Additional Collector, Jalna,
District Jalna.
4) The Tahasildar, Ghansawangi,
Taluka Ghansawangi, District Jalna.
5) Circle Officer, Ranjani Circle,
Taluka Ghansawangi, District Jalna.
6) Talathi, Sajja Yeola (Chitrawadgaon)
Taluka Ghansawangi, District Jalna.
7) The Gramsevak,
Grampanchayat Chitrawadgaon,
Taluka Ghansawangi, District Jalna.
8) Vithal w/o Bapurao Pokale,
Age 50 years,
Occupation: Agriculture,
R/o Chitrawadgaon, Post Karadgaon,
Taluka Ghansawangi,
District Jalna. .. Respondents.
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Shri. Sambhaji S. Tope, Advocate, for petitioner.
Shri. S.K. Tambe, Assistant Government Pleader, for
respondent Nos.1 to 6.
Shri. S.K. Sawangikar, Advocate for respondent No.8.
----------
CORAM: T.V. NALAWADE, J.
DATE : 19 DECEMBER 2016
ORAL JUDGMENT:
1) Rule, Rule made returnable forthwith. Heard
learned counsels for both the sides for final disposal by
consent.
2) Writ Petition No.11302/2016 is filed to
challenge the decision given by the learned Additional
Commissioner, Aurangabad in Appeal No.235/2016 which
was filed against the decision given by the learned
Additional Collector Jalna in proceeding No.2016/GB/VPE
/CR-01 filed under section 14(1)(j-3) of the Maharashtra
Village Panchayats Act, 1958. Writ Petition No.11305/2016
is filed against the decision given by the learned
Additional Commissioner in Appeal No.234/2016 which
was filed against the decision given by the Additional
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Collector in proceeding No.2016/GB/VPE/CR-05 and the
last proceeding is filed to challenge the decision given by
the learned Additional Commissioner in Appeal No.233 of
2016 and this appeal was filed against the decision given
by the learned Additional Collector in similar proceeding
bearing No. 2015/GB/VPE/CR-50.
3)
There is allegation against the respondents
No.8 of the first two proceedings that their families have
made encroachment over Gairan bearing Gat No.68 by
making construction and thereby they have incurred
disqualification under the aforesaid provisions of the Act.
There is allegation against respondent No.8 of the third
proceeding that he has made encroachment over one
hectare portion of Gat No.128 which belongs to the
Government and thereby he has incurred disqualification.
These respondents are members of the Village Panchayat,
Chitrawadgaon, Tahsil Ghansavangi, District Jalna.
4) The record like panchnama prepared by Circle
Officer on 5-4-2008 was considered by the learned
Additional Collector for declaring that respondents from
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the first two proceedings had incurred disqualification
and the record like panchnama prepared on 12-11-2013
by Talathi in respect of the encroachment made by Vithal
Pokale, respondent No.8 of the third proceeding was
considered by the Additional Collector. The Additional
Collector was satisfied that this record is sufficient to
infer that the members of their families had made
encroachment over Government land and if they were
allowed to continue to hold the present posts they will
misuse the post and so the disqualification order was
made against them. Learned Additional Commissioner has
set aside the orders made by the learned Additional
Collector by giving reason that the aforesaid evidence is
not sufficient. It is also observed that the record of
allotment of plots under the scheme of rehabilitation was
not considered by the learned Additional Collector. It is
also observed that the respondents are the elected
representatives of people and they cannot be disqualified
on the basis of such record.
5) The learned counsel for the petitioners showed
to this Court the duties of the Circle Inspector mentioned
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in Maharashtra Land Revenue Circle Officers and Circle
Inspectors (Duties and Functions) Rules, 1970. He
submitted as per Rule 17 it is the duty of the Circle
Inspector to inspect the lands to ascertain as to whether
on Government land anybody has made encroachment and
if he finds that there is encroachment, it is his duty to give
report to the Tahsildar. Learned counsel submitted that in
accordance with his duty the Circle Inspector had
prepared the report in the first two proceedings and he
had submitted the report to the Tahsildar and as that
record was created in the year 2008 itself, it cannot be
said that false record was created. Learned counsel for
the respondents submitted that one relative of the
husband of the respondent in the first proceeding was
allotted a plot under the rehabilitation scheme and the
revenue authority probably have shown this plot as
encroachment made by the respondent. This submission is
not at all acceptable. When revenue officer draws
panchnama which is to the effect that it is encroachment
it needs to be presumed that the revenue authority has
considered the allotment which is made to other persons.
It is not the panchnama that over the portions allotted to
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third persons these respondents have made
encroachment. So, there is no force in that submission.
For the respondent from the second proceeding, learned
counsel for her submitted that the encroachment is
described only as open space and it cannot be said that it
was really encroachment. This submission also is not
acceptable. Even when construction is not started but if
the portion is earmarked by the person to show that he is
in possession that circumstance can be considered to
ascertain as to whether he has made encroachment.
6) Learned counsel for the petitioners showed to
this Court duties of Talathi. He submitted that it is also
the duty of the Talathi to prepare and maintain register of
encroachments and unauthorised non-agricultural uses.
Relevant record and panchnamas are produced on record
and they show that respondent from the third proceeding
has not only made encroachment over one hectare portion
but his brother also had made encroachment over one
hectare portion of land. But it appears that in favour of
brother of respondent some order was made by revenue
authority and that record is produced by the respondent
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in the present proceeding. However, there is no such
record in favour of respondent Vitthal, member of the
Village Panchayat and the fact remains that he is still
encroacher on Gat No.128 belonging to Government. The
encroachment is of one hectare. It is clear that this
respondent will misuse his post to see that he is able to
continue the encroachment. Today, learned counsel for the
respondent from the third proceeding submitted that he
has obtained certificate from the Talathi showing that in
the year 1989-90 no encroachment was found to be made
by Vithal Pokale. This certificate will not help the
respondent as there is panchnama which is of the year
2013. Learned counsel for respondent No.9 from Writ
Petition No.11305/2016 submitted that in favour of
Laxman Jairam Maratha there is allotment of one plot and
so it cannot be said that there is encroachment. This
certificate also cannot be of any help as the panchnama
made shows that encroachment is made by Prabhakar and
not by Laxman. It is already observed that it needs to be
presumed that if there was allotment of plots made under
the rehabilitation scheme, the revenue authority had
considered that allotment separately and the
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encroachment is ascertained on the basis of factual
encroachment made by the present respondents. Thus,
these two certificates also cannot be of any use to the
respondents.
7) Learned counsel for the petitioners placed
reliance on the case reported as 2013 (7) All MR 5
(Devidas Surwade v. Additional Commissioner, Amravati)
and also the case reported as 2015 (5) ALL M.R. 343
(Parvatibai @ Shobha Kisan Kakde vs. Additional
Commissioner, Nagpur). In the first case, the Division
Bench has held that aforesaid provision of the Village
Panchayat Act is not only against the members who made
encroachment but it can be used against the member
when the encroachment is shown to be made by family
members of the member. In the present matter in the first
two cases the encroachment is made by the husband of
the member and so it can be said that this encroachment
can be used for disqualification of the members. In the
third proceeding the encroachment is made by the
member himself. In view of these circumstances, this
Court holds that the learned Additional Commissioner has
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made grave error in allowing the appeals filed by the
respondents. The matters are required to be decided on
the subjective satisfaction of the Collector and the
aforesaid circumstances are sufficient to infer that there
was sufficient material before the Additional Collector for
such subjective satisfaction. The decision given by the
learned Additional Commissioner cannot sustain in law.
8) In the result, all the writ petitions are allowed.
The decisions given by the learned Additional
Commissioner are hereby set aside and the decisions
given by the learned Additional Collector are hereby
restored. Rule is made absolute in the aforesaid terms in
all the three proceedings.
Sd/-
(T.V. NALAWADE, J. )
rsl
