Bombay High Court
Shri Sanjay Ghudandeo Mahajan vs The Deputy Commissioner ... on 11 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6826 OF 2015
PETITIONER: Shri Sanjay Ghudandeo Mahajan,
Aged : Major, Occ. Agriculturist, R/o
Gram Panchayat Sonoli Tah: Katol
Dist. Nagpur.
-VERSUS-
RESPONDENTS: 1. The Deputy Commissioner,
(Resettlement) Nagpur.
2. The Additional Collector, Nagpur,
ig Civil Lines Nagpur.
3. The Tahsildar, katol Tah. Katol Dist :
Nagpur.
4. Smt. Sangita Shankarrao Shendra,
Aged: Major, Occ. Household, R/o
Gram Panchayat Sonoli Tah: Katol
Dist. Nagpur.
5. The Gram Panchayat Sonoli Tah:
Katol District Nagpur through its
Secretary.
6. The Divisional Commissioner, Nagpur
Division Nagpur.
Shri V. G. Dhage, Advocate for the petitioner.
Shri K. L. Dharmadhikari, Asstt. Government Pleader for respondent
nos.1 to 3 & 6.
Shri K. M. Kuthe, Advocate for the respondent no.4.
Shri B. M. Kharkate, Advocate for the respondent no.5.
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CORAM: A.S. CHANDURKAR, J.
DATED: 11
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
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Counsel for the parties.
2. The petitioner is aggrieved by the order dated 10-11-
2015 passed by the respondent no.1 in the appeal preferred by the
respondent no.4 challenging her disqualification under provisions
of Section 14(1)(j3) of the Maharashtra Village Panchayats Act,
1959 (for short, the said Act).
3. The petitioner had filed an application under Section
16 of the said Act seeking disqualification of the respondent no.4
on the ground that she and her husband had committed
encroachment on Government land bearing Survey No.23. In the
reply filed by the respondent no.4, this stand was denied. The
Additional Collector by order dated 5-9-2015 recorded a finding
that unauthorized construction had been undertaken by the
respondent no.4 and its regularization had been sought as per the
application dated 4-7-2015. It was further observed that the
documents pertaining to ownership of said land were not placed
on record by the respondent no.4. On that basis, the respondent
no.4 was held disqualified to hold the office of Sarpanch of the
Gram Panchayat. Being aggrieved the respondent no.4 filed an
appeal before the Dy. Commissioner. By the impugned order, the
Dy. Commissioner remanded the proceedings to the Additional
Collector to take into account the nature of encroachment and and
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the aspect whether the same had been regularized.
4. Shri V. G. Dhage, the learned Counsel for the
petitioner relied upon the report of the Sub-Divisional officer dated
8-7-2015 and submitted that the said report clearly indicated the
encroachment committed by the respondent no.4. He submitted
that the respondent no.4 did not raise any ground with regard to
the provisions of the Forest Rights Act, 2006 and, therefore, it was
not necessary to remand the proceeding for fresh consideration.
He submitted that the Additional Collector had rightly disqualified
the respondent no.4 and she was not entitled to continue as
Sarpanch of the Gram Panchayat.
5. Shri K. M. Kuthe the learned Counsel for the
respondent no.4 supported the impugned order. According to him,
there was no encroachment committed by the respondent no.4.
He submitted that the provisions of Section 14(1)(j3) of the said
Act were amended in the year 2006 and as the alleged
construction was prior to said date, the respondent no.4 could not
be disqualified on that basis. He submitted that the aspect of
encroachment was not clearly proved and, therefore, the
proceedings had been rightly remanded for fresh consideration.
Shri K. L. Dharmadhikari, the learned Assistant
Government Pleader for the respondent nos.1,2,3 and 6 supported
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the impugned order. Shri B. M. Kharkate, learned Counsel
appeared for the respondent no.5.
6. Perusal of the material on record indicates that in the
application for disqualification a specific case has been pleaded
with regard to Government land bearing Survey No.23 as being
owned by the Government on which an encroachment has been
alleged to be made by the respondent no.4. In the reply filed by
the respondent no.4, this fact has been denied and it has been
stated that the construction in question was existing for many
years and even prior to her election. The report of the Sub-
Divisional Officer dated 8-7-2015 was placed on record before the
Additional Collector and on that basis, the Additional Collector
decided the said proceedings. In the appeal preferred by the
respondent no.4 there is again reference to the long standing
possession and denial of any encroachment. The Deputy
Commissioner, however, proceeded to remand the proceedings on
the ground that the rights under the Forests Rights Act, 2006 were
required to be taken into consideration. It was neither the case of
the petitioner nor the case of the respondent no.4 that the
provisions of the Forest Rights Act, 2006 were involved. The
appeal was required to be decided after considering the
application for disqualification, the reply and the order passed by
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the Additional Collector. Considering the material that is placed on
record, I do not find that the remand of the proceedings was
necessary in absence of any issue relating to the Forest Rights Act,
2006. In that view of the matter, the appellate Authority would
have to decide the appeal afresh on merits.
7. According to the learned Counsel for the petitioner
after the order of disqualification was passed by the Additional
Collector, the charge has been taken of the post of Sarpanch from
the respondent no.4 on 29-12-2015. This fact is disputed by the
learned Counsel for the respondent no.4 on the ground that the
same has been done without considering the relevant provisions of
law. However, considering the fact that the respondent no.4 has
been disqualified by the order passed by the Additional Collector
and the appeal is required to be decided afresh, the interests of
justice would be met if the appeal is directed to be decided within
a period of two months from the date of appearance of the parties.
8. In view of aforesaid, the order dated 10-11-2015
passed by the respondent no.1 is set aside. The appeal is restored
to file for being decided afresh. The parties shall appear before the
Deputy Commissioner on 25-7-2016. The appeal shall be decided
within a period of two months from said date. Till the appeal is
decided, the present position shall continue without prejudice to
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the rights of the parties. The points on merits are kept open. The
petition is disposed of in aforesaid terms. No costs.
JUDGE
//MULEY//
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