Bombay High Court
Niyaz Aali Tufel Ali vs Additional Commissioner, ... on 18 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4401 OF 2016
Niyaz Aali Tufel Ali
Aged about 43 years,
Occ: Agriculturist,
R/o Thugao (Pimpari),
Tq. Chandur Bazar,
Dist. Amravati. ....... PETITIONER
ig ...V E R S U S...
1] Additional Commissioner,
Amravati Division, Amravati.
2] Additional Collector,
Amravati, Tq. & Dist. Amravati.
3] Deputy Superintendent of Land Record,
Chandur Bazar, Tq. Chandur Bazar,
Dist. Amravati.
4] Gram Panchayat,
though (Pimpari), Tq. Chandur Bazar,
Dist. Amravati through its Secretary.
5] Shaikh Ilyas Shaikh Hanif
Aged about 35 years,
Occ: Agriculturist,
R/o Thugao (Pimpari),
Tq. Chandur Bazar, Dist. Amravati. ....... RESPONDENTS
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Shri N.A. Gawande, Advocate for Petitioner.
Ms. H.N. Jaipurkar, A.G.P. for Respondent Nos.1 to 3.
Shri P.S. Patil, Advocate for Respondent No.4.
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::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:53 :::
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CORAM: R.K. DESHPANDE, J.
th OCTOBER, 2016.
DATE: 18
ORAL JUDGMENT
1] Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
2] The petitioner sought disqualification of the
respondent No.5 as a member of the Gram Panchayat on the
ground mentioned under Section 14(1)(j-3) of the Maharashtra
Village Panchayats Act, 1958 (for short, "the said Act").
The application for disqualification was allowed by the Additional
Collector as per his order dated 24.02.2016 and the respondent
No.5 was disqualified. This order was the subject-matter of
challenge in appeal before the Additional Commissioner, Amravati
Division, Amravati under Section 16(2) of the said Act, which has
been allowed on 29.06.2016 by setting aside the order of
disqualification passed by the Additional Collector on 24.02.2016.
Hence, the complainant is before this Court challenging the order
of the Additional Commissioner and seeking restoration of the
order passed by the Additional Collector.
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3] The Additional Commissioner in his order impugned
has held as under:
I have heard argument of the learned Counsels
for the Appellant and the Respondent No.2. I have
perused the record of the Lower Court and also gone
through the report submitted by the Secretary, Gram
Panchayat, Thugaon (Pimpri).
It is clear from records that present Appellant's
father had encroached upon this piece of land (i.e. on
plot No.154). The Appellant himself has not encroached
upon any land. As per his version, he has been staying
on this plot since Mowad floods that is around 35
years. He further claims that his plot was allotted by
the then Tahsildar, Chandur Bazar. Thus, the Appellant
cannot be held responsible for an encroachment which
his father committed long ago. Therefore, the Order of
the Additional Collector, Amravati dated 24.2.2016
needs to be quashed and set aside.
From the aforesaid finding it is not disputed that the respondent
No.5 was residing upon the property i.e. Plot No.154, which is an
encroachment over the government land, and he is staying there
for last about 35 years. The Additional Commissioner has held that
the encroachment is by the father of the respondent No.5, and
hence the provision of Section 14(1)(j-3) of the said Act is not
attracted.
4] The controversy involved in this case is covered by the
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decision of this Court rendered on 17.10.2016 in Writ Petition
No.431/2016, para 17 of the said decision being relevant is
produced below:
17. In view of the aforesaid position, the
provision of Section 14(1)(j-3) of the said Act is
attracted even in a case where a member of a
Panchayat resides in the property or any portion
thereof, which is an encroachment upon the
Government land or public property. The question as to
whether any other person or a member of a family has
already made an encroachment, loses its significance
and as soon as a member or proposed member joins
such act, he cannot escape from the clutches of
disqualification under Section 14(1)(j-3) of the said
Act. The question framed, is answered accordingly.
5] In view of the aforesaid decision of this Court the writ
petition needs to be allowed by setting aside the order passed by
the Additional Commissioner and restoring the order passed by
the Additional Collector.
6] In view of this, the writ petition is allowed. The order
dated 29.06.2016 passed by the Additional Commissioner,
Amravati in Appeal No.88/BVP 16(2)/Thugaon (Pimpri)/2015-16
is hereby quashed and set aside and the order dated 24.02.2016
passed by the Additional Collector, Amravati disqualifying the
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respondent No.5 under Section 14(1)(j-3) of the Maharashtra
Village Panchayats Act is restored. No order as to costs.
JUDGE
NSN
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C E R T I F I C A T E
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