Smt. Surekha W/O Gyaniram Kakode vs Ratnakar S/O Narayan Kumbhare And ...
2016 Latest Caselaw 4158 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                                   
                               NAGPUR BENCH, NAGPUR.




                                                  
     WRIT PETITION NO.5692 OF 2014


     Smt. Surekha w/o Gyaniram Kakode,
     Aged about 36 years, Occ.- Labour,




                                       
     R/o Dhapewada (Khurd), Ward No.6,
     Tahsil - Kalmeshwar, District - Nagpur.
                              ig                            ....       PETITIONER


                         VERSUS
                            
     1) Ratnakar s/o Narayan Kumbhare,
         Aged - Adult, 
         R/o Ward No.1, Dhapewada, 
      


         Tahsil - Kalmeshwar, District - Nagpur.
   



     2) Secretary, Village Panchayat,
         Dhapewada, Tahsil - Kalmeshwar, 
         District - Nagpur.





     3) State of Maharashtra,
         through Additional Collector, Nagpur.

     4) Additional Commissioner,
         Nagpur Division, Nagpur.                           ....       RESPONDENTS





     ______________________________________________________________
                    Shri M. Husain, Advocate for the petitioner,
              Shri S.R. Bhongade, Advocate for the respondent No.1,
               Shri M.D. Zoting, Advocate for the respondent No.2,
       Shri H.R. Dhumale, Assistant Government Pleader for the respondent
                                  Nos.3 and 4. 
      ______________________________________________________________




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                                   CORAM : Z.A. HAQ, J.

DATED : 26 JULY, 2016.

th

ORAL JUDGMENT :

Heard Shri M. Husain, Advocate for the petitioner, Shri

S.R. Bhongade, Advocate for the respondent No.1, Shri M.D. Zoting,

Advocate for the respondent No.2 and Shri H.R. Dhumale, Assistant

Government Pleader for the respondent Nos.3 and 4.

2. Rule. Rule made returnable forthwith.

3. The petitioner got elected as member of Gram-Panchayat

in October 2013. The respondent No.1 filed complaint against the

petitioner that she has encroached on Government land and therefore,

she is disqualified to be a member of the Gram-Panchayat, as per

Section 14(1)(j-3) of the Maharashtra Village Panchayats Act.

The Additional Collector, after conducting enquiry, by the

order dated 26-12-2013, found that the petitioner has encroached on

Government land and declared that she is disqualified to be member of

the Gram-Panchayat.

The petitioner being aggrieved by the above order, filed

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appeal under Section 16(2) of the Maharashtra Village Panchayats Act.

The appeal is dismissed by the Additional Commissioner by the

impugned order.

4. The appeal is dismissed with the following observations:

"I have gone through the case papers and order of

Additional Collector, Nagpur dated 26-12-2013. Appeal dismissed."

The impugned order passed by the Additional

Commissioner shows that the remedy of appeal provided under Section

16(2) of the Maharashtra Village Panchayats Act is frustrated by the

Additional Commissioner. As an appellate authority- the Additional

Commissioner was under an obligation to consider the facts of the

case, the submissions made by the receptive parties and to record

reasons for accepting or rejecting the submissions made by the parties.

The failure on the part of the Additional Commissioner to exercise the

appellate powers, vitiates the impugned order.

5. Hence, the following order :

            (i)        The impugned order is set aside. 

            (ii)       The   matter   is   remitted   to   the   Additional   Commissioner



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Nagpur Division, Nagpur for deciding the appeal filed by

the petitioner afresh.

(iii) The petitioner and the respondent Nos.1 and 2 shall

appear before the Additional Commissioner, Nagpur

Division, Nagpur on 29-08-2016 and abide by further

orders in the matter.

(iv)

Though interim order was not operating in favour of the

petitioner, considering the fact that action consequent to

the order passed by the Collector has not been taken, it is

directed that till the appeal is decided by the Additional

Commissioner, the order passed by the Collector

disqualifying the petitioner shall stand stayed and the

petitioner will continue as the member of the Gram-

Panchayat.

(v) Rule is made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

                                                                                JUDGE

    adgokar





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                                               CERTIFICATE




                                                               

I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.

Uploaded by : P.M. Adgokar. Uploaded on : 30-7-2016.

P.A. to Hon'ble Judge.