Bombay High Court
Sau. Sunita Bhaurao Rathod vs Additional Commissioner, ... on 22 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 335 OF 2015
Sunita Bhaurao Rathod,
aged 35 yrs. Occu. Home-maker,
R/o Bhoyani, Tq. Manora, Distt.
Washim. PETITIONER.
ig VERSUS
1] Additional Commissioner,
Amravati Division Amravati.
2] Additional Collector,
District Washim.
3] The Secretary,
Gram Panchayat Bhoyani,
R/o Bhoyani Tq. Manora
Distt. Washim.
4] Mangiram Meram Aade,
aged 36 yrs. Occu.
Agriculturist, Bhoyani, Tq.
Manora, Distt. Washim. RESPONDENTS.
Shri R. D. Karode, Advocate for the petitioner.
Ms. T. Khan, Assistant Government Pleader for respondent nos. 1 & 2.
Shri R. B. Dhore, Advocate for the respondent no. 4.
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CORAM: A. S. CHANDURKAR J.
Dated : JUNE 22, 2016.
ORAL JUDGMENT:
In view of notice for final disposal the learned counsel for
the parties have been heard at length.
The petitioner is aggrieved by the order dated 27.11.2014
passed by the Additional Commissioner Amravati, Division Amravati
thereby dismissing the appeal preferred by the petitioner and
maintaining the order of removal passed by the Additional Collector,
Washim under provisions of Section 14 (1)(j-3) Maharashtra Village
Panchayats Act, 1958 (for short, the said Act).
2] The petitioner was elected as Member of Grampanchayat
Bhoyani. The respondent No.4 filed an application seeking
disqualification of the petitioner under provisions of Section 14 (1)(j-3)
of the said Act on the ground that the petitioner and her husband had
encroached upon government land and had constructed a house
thereon. This encroachment though made in the year 2009-10, the
same continued even thereafter. The petitioner filed reply denying the
aforesaid case. According to her she had separated from her husband
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on 11/01/2006 by executing an agreement in that regard. It was
therefore her case that as she was residing with her father separately
she was not liable to be removed on said ground.
3] The Additional Collector on the basis of material on record
came to the conclusion that the petitioner was residing along with her
husband and that the agreement of 2006 to the effect that they had
separated had no legal force. It was then found that encroachment was
committed by the family members of the petitioner and that her name
alongwith that of her husband and children were found in the ration
card. By order dated 12.08.2014 the Additional Collector disqualified
the petitioner.
The appeal filed by the petitioner also came to be dismissed
by the Additional Commissioner by upholding the order of the
Additional Collector. The same is under challenge in this writ petition.
4] Shri R. D. Karode, the learned counsel for the petitioner
submitted that the petitioner had separated from her husband which
fact was clear from the agreement dated 11.01.2006. Relying upon the
judgment of the learned Single Judge in 2013 (1) Mh.L.J. 455
Kanchan Shivaji Atigre vs. Mahadev Baban Ranjagane, it was then
submitted that as the alleged encroachment was committed by the
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husband of the petitioner, she could not be disqualified on that count.
According to him merely on the ground of political rivalry the present
proceedings had been initiated.
5] Ms T. Khan, the learned Assistant Government Pleader for
the respondent Nos.1 and 2 and Shri R. Dhore, the learned counsel for
the respondent No.4 supported the impugned order. Ms T. Khan
submitted that the agreement between the petitioner and her husband
had no legal force. It could not be said that the parties had separated
in view of said agreement. She then submitted that even if a family
member committed encroachment, the petitioner as elected member
was liable to be disqualified. In that regard, she placed reliance on the
decision of this Court in 2015(5) MHLJ 238 Parvatabai @ Shobha vs.
Additional Commissioner. It was therefore submitted that the
impugned orders did not call for any interference.
5] Having heard the respective counsel for the parties I do not
find that both the Authorities had committed any error in disqualifying
the petitioner. Merely on basis of an agreement dated 11/01/2006 it
cannot be said that the petitioner had separated from her husband.
Admittedly, there is no decree of divorce passed by any Court. Hence,
reliance placed on said agreement is totally misconceived.
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In so far as the factum of encroachment is concerned, this
finding had been arrived at on the basis of the document which is Form
No.8 that was the assessment list showing that property No.244 was
government land on which the petitioner and her family members had
erected construction to the extent of 30' x 25'. The ration card
indicated joint residence of the petitioner, her husband and their
children. Hence aforesaid finding as regards encroachment is based on
material available on record.
6] In so far as the submission that the encroachment was
committed by the petitioner's husband due to which she could not be
disqualified, a similar issue was considered by this Court in Parvatabai
@ Shobha (supra). Relying upon judgment of the Division Bench in
L.P.A. No.305/2012 Devidas M. Surwade vs. Additional Commissioner,
Amravati and ors. it was held that the encroachment at the behest of a
family member was sufficient to attract disqualification. It was also
found that the learned Single Judge in Kanchan Shivaji Atigre (supra)
did not consider the aforesaid judgment of the Division Bench while
holding that an elected member was not responsible for the
encroachment committed by a family member. It is therefore clear
that the legal position as it stands is that even encroachment at the
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behest of a family member is sufficient to attract disqualification of
another family member who is elected.
7] In view of aforesaid, there is no reason whatsoever to
interfere in writ jurisdiction. The writ petition is therefore dismissed
with no order as to costs.
ig JUDGE
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