Bombay High Court
Sudhir Jagannath Mahajan vs The State Of Maharashtra And ... on 5 October, 2016
Bench: R.M. Borde
wp2640.16.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 2640 OF 2016
Sudhir s/o Jagannath Mahajan
age 41 years, occ. agril.
r/o At Post Anturli, Tq. Muktai Nagar
Dist. Jalgaon .. PETITIONER
VERSUS
1. The State of Maharashtra
Through its District Collector,
Jalgaon,
Tq. & Dist. Jalgaon
2. The Tahsildar,
Muktainagar,
Tq. Muktainagar Dist. Jalgaon
3. Zilla Parishad Jalgaon
Through its Deputy Chief Executive Officer
(Grampanchayat)
Tq. & Dist. Jalgaon
4. Panchayat Samiti, Muktainagar
Through its Block Development Officer,
Tq. Muktainagar, Dist. Jalgaon
5. Grampanchayat Anturli
Tq. Muktainagar, Dist. Jalgaon
Through its Village Development Officer
6. Grampanchayat Anturli
Tq. Muktainagar, Dist. Jalgaon
Through its Sarpanch
7. Swami Samarth Kendra
Anturli Tq. Muktainagar, Jalgaon
through Dattu Vishnu Patil .. RESPONDENTS
Mr. V.B. Patil, advocate for petitioner.
Mr. V.M. Kangne, AGP for the State.
Mr. M.S. Sonawane, advocate for respondent no. 2.
Mr. M.G. Patil, advocate for respondents 5 and 6.
Mr. B.A. Shinde, advocate holding for Mr. V.P. Latange, advocate for
respondent no. 7.
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CORAM : R.M. BORDE &
K.K. SONAWANE, JJ.
DATE : 5th OCTOBER, 2016.
ORAL JUDGMENT : ( PER R. M. BORDE, J. )
1. Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel for the respective
parties.
3.
Petitioner is praying for issuance of directions to respondents to
remove encroachment towards open space i.e. land gat n o. 866/2 situate at
village Anturli, Tq. Muktai Nagar, Dist. Jalgaon, in furtherance of the
complaints presented by him on 02.11.2015 and 11.12.2015.
4. The open space which is vested in village panchayat out of gat no.
866/2 has been handed over in favour of respondent no. 7 under resolution
no. 11 adopted by the Village Panchayat on 29.11.2010. The open space is
alleged to have been handed over for development for social cause. Section
55 of the Maharashtra Village Panchayat Act relates to competence of
Panchayat to lease, sell or transfer property. It is provided that every
Panchayat shall be competent to lease, sell or otherwise transfer movable or
immovable property which may become [vested in (otherwise than under the
provisions of sub-section (1) of Section (51)] or be acquired by it and to
contract and do all other things necessary for the purposes of this Act
provided that no lease of immovable property other than property referred to
in sub-section (1) of Section 56 for a term exceeding three years and no sale
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or other transfer of any such property shall be valid unless such lease, sale
or other transfer has been made with the previous sanction of the Chief
Executive Officer. In the instant matter, the mode of transfer has not been
disclosed i.e. either by way of lease or sale or any other permissible mode of
transfer under the relevant act. The property appears to have been handed
over by adopting resolution by the Village Panchayat in the year 2010. The
property is possessed by respondent since about six years i.e. beyond three
years period stipulated under section 55 of the Act.
5.
Learned counsel for respondent Zilla Parishad has stated that there
is no sanction of the Chief Executive Officer for the alleged transfer of the
property. Since transfer of property itself is in breach of the provisions of
Maharashtra Village Panchayat Act, such transfer cannot be recognised.
The development carried out by respondent no. 7 over the property is
unauthorised one and as such is liable to be removed.
6. In view of above, writ petition stands disposed of with directions to
respondents 3 and 5 to 7 to remove encroachment over the open space
which is part of gat no. 866/2 of village Anturli, Tq. Muktai Nagar, Dist.
Jalgaon, as expeditiously as possible, preferably within a period of three
months from today. Rule is accordingly made absolute. No costs.
( K. K. SONAWANE ) ( R. M. BORDE )
JUDGE JUDGE
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