Bombay High Court
Atmaram Annarao Khekale vs Kasabai Keshavrao Talekar And ... on 30 November, 2016
Bench: T.V. Nalawade
1 WP 9214 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.9214 of 2016
* Atmaram, s/o. Annarao Khekale,
Age 34 years,
Occupation : Agriculture,
R/o Perjapur, Taluka Bhokardan,
District Jalna. .. Petitioner.
Versus
1) Kasabai w/o Keshavrao Talekar,
Age 47 years,
Occupation: Household and
Agriculture,
R/o Perjapur, Taluka Bhokardan,
District Jalna.
2) Krushna s/o Vishnu Burange,
Age 22 years,
Occupation: Agriculture,
R/o Perjapur, Taluka Bhokardan,
District Jalna.
3) The Additional Collector, Jalna,
District Jalna.
4) The Additional Divisional Commissioner,
Aurangabad Division,
Aurangabad.
5) The Village Development Officer,
Grampanchayat Perjapur,
Taluka Bhokardan, District Jalna. .. Respondents.
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Shri. Anant Devakate, Advocate, for petitioner.
Shri. Amol Gandhi, Advocate, holding for Shri. Pratap P.
Mandlik, Advocate, for respondent Nos.1 and 2.
Shri. A.P. Basarkar, Assistant Government Pleader, for
respondent Nos.3 and 4.
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CORAM: T.V. NALAWADE, J.
DATE : 30 NOVEMBER 2016
ORAL JUDGMENT:
1) Rule. Rule made returnable forthwith. Heard
both sides by consent for final disposal.
2) The petition is filed to challenge the order
made by learned Additional Commissioner, Aurangabad in
Appeal No.263/2016 which was filed by respondent No.1,
Kasabai and respondent No.2, Krishna against the order
of disqualification passed by the learned Additional
Collector Jalna in Disqualification Proceeding No.10/2016.
3) The disqualification proceeding was started
before the Collector by the present petitioner. It is his
contention that respondent No.1, Kasabai, who is
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Sarpanch and respondent No.2, Krishna who is member of
Village Panchayat Perjapur need to be disqualified as they
have made encroachment and they are in possession of
the Government property, Gairan, as encroachers. Specific
number of the property over which encroachment was
made was given as Gat No.181 and it was contended that
the constructions of R.C.C. nature were made by these
persons on the land.
4) After hearing both the sides, the learned
Additional Collector came to the conclusion that the family
of Sarpanch had made encroachment and there was
record to show that notice was issued against the husband
of the Sarpanch for removal of the encroachment but no
steps were taken for removal of encroachment. Similar
observations are made against respondent-Krishna as
there is allegation that his father, Vishnu, has made
encroachment over some portion of the same land.
5) There is record to show that the matter of
encroachment was considered by the village panchayat
and notice was given to the husband of Kasabai namely
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Keshavrao Talekar and he was asked to remove the
encroachment. The construction was described as R.C.C.
construction and there was also separate toilet block and
water tank on Gat No.181 and these constructions were
made by making encroachment. In the notice given to
Vishnu it was mentioned that one hut having tin sheets
which were 10 in number was there.
6) Learned counsel for respondent No.1 Kasabai
submitted that issuance of the notice itself shows that the
Sarpanch had taken necessary steps and had given notice
and so the act of the husband cannot be used against her
for disqualification. Similar submission was made for the
member, Krishna. Learned counsel for these respondents
submitted that in Writ Petition No.9255/2013 decided by
this Court on 24-6-2015, the Division Bench had observed
that some encroachments on this property were
longstanding and it was observed that it is necessary to
take steps to regularise these encroachments. Learned
counsel further submitted that the matter of
regularisation is pending before the Commissioner and so
this ground cannot be used against the Sarpanch and the
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member. This submission is not at all acceptable. What is
required to be proved under section 14(1)(j-3) of the
Maharashtra Village Panchayats Act, 1958 is the fact of
encroachment upon Government land or public property.
Whether encroachment can be regularised is a different
matter. And if the Government is thinking about
regularisation that is also a different matter. As soon as
the ground is proved, the disqualification is incurred.
7) Learned counsel for the respondent Sarpanch
submitted that one plot was allotted to Keshavrao and it
cannot be said that encroachment is made. It appears that
some plots were allotted by the Government and
occupancy certificates were also issued. There is record
showing that in favour of Keshavrao Talekar allotment of
plot of 33 feet x 33 feet was made in the year 1987. This
property is different from the property which is said to be
encroached. In the present proceeding learned counsel
for the petitioner has produced some record like list of
encroachers and it shows that Keshavrao has made
encroachment on more portion like 51 feet x 38 feet, 10
feet x 15 feet, 22 feet x 36 feet and 18 feet x 38 feet. By
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making encroachment construction of R.C.C. structure,
toilet block, cattle shed is shown to be made by Keshavrao
Talekar. Learned counsel for respondent Sarpanch
submitted that this record was not produced before the
Collector and so this record cannot be considered by this
Court in the present matter. This record bears signature
of the Sarpanch and the copy of list is issued by the
Sarpanch herself. In view of this circumstance, to give
opportunity to the learned counsel for the respondent
Sarpanch the matter was adjourned on yesterday and it
was kept today. Surprisingly learned counsel for the
Sarpanch submitted that he could not contact his client
and he could not get confirmation about the list. The
Collector is the authority who is having the relevant
record and it cannot be said that he had no opportunity to
see the relevant record about the encroachment. Finding
is given by the Collector on the encroachment made by
Keshavrao Talekar. The aforesaid property mentioned in
the list is in addition to the allotment letter issued in
favour of Keshavrao in the year 1987 which was of plot of
the size of 33 feet x 33 feet.
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8) So far as the case as against Vishnu is
concerned, who is father of other respondent, member, it
can be said that no allotment of any piece of land from
Gairan was made in his favour. In spite of that, he has
made encroachment over the portions of 24 feet x 14 feet
and 13 feet x 35 feet. On this property he has made
construction having roof of tin sheets.
9) The aforesaid record is sufficient to prove that
encroachment has been made. One encroacher Keshavrao
is the husband of the Sarpanch and so she cannot disown
her liability in respect of that encroachment. There is no
need to consider as to when the encroachment was made
by her husband as the fact remains that she did not take
concrete steps for removal of the encroachment made
over Gairan and she has been misusing her post for
protecting the structure. Submissions made by learned
counsel to the effect that the encroachment can be
regularized also show that they are waiting for
regularisation of the encroachment. Such persons cannot
be allowed to continue on the post as they continue to
misuse the post.
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10) Even when there are aforesaid circumstances
and the learned Additional Collector had passed order of
disqualification, learned Additional Commissioner did not
take into consideration the factual aspects and set aside
the order made by the Collector by making observation
that in the Writ Petition being No.12459/2015 pending in
the Court observation is made that the encroachments are
not to be removed and that kind of order was made. This
Court has already observed that such order cannot save
the Sarpanch or the member from disqualification. In
future they may even get those portions, but they will
have to lose the present posts due to the aforesaid
activities.
11) Learned counsel for respondents placed
reliance on a case reported as 2013(1) Mh.L.J. 455
(Kanchan vs. Mahadev). Learned counsel submitted that
in the reported case this Court held that disqualification
was not incurred by the Sarpanch only because a member
of the family had made encroachment. Considering the
purpose behind the aforesaid provision and the fact that in
the present matter husband of the Sarpanch has made
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encroachment and the father of the member has made
encroachment, this Court holds that they cannot disown
the liability. Thus the order made by the learned
Additional Commissioner in appeal cannot sustain in law.
12) In the result, the petition is allowed. The order
made by the learned Additional Commissioner is hereby
set aside and the order made by the Additional Collector
is restored. Rule is made absolute in aforesaid terms.
Learned counsel for the respondents requested for stay to
operation of this order for few days. The prayer is
rejected.
Sd/-
(T.V. NALAWADE, J. )
rsl
