Satyabhama Santosh Barse And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 1482 Bom

                                         1                    WP No. 4545/2017

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                     WRIT PETITION NO.4545 OF 2017 

  1.       Mrs. Satyabhama W/o Santosh Barse,
           Age:30 years, Occu: Household,

  2.       Mr. Santosh S/o. Laxman Barse,
           Age:36 years, Occu.:Agriculture,
           Both R/o Vishnupuri,
           Tq. & Dist. Nanded           =                  PETITIONERS

           VERSUS

  1)       The State of Maharashtra
           Through Secretary,
           Rural Development Department,
           Mantralaya, Mumbai

  2)       The Additional Commissioner,
           Aurangabad Division, Aurangabad

  3)       The Collector,
           Nanded, Tq. & Dist. Nanded

  4)       The Tahsildar/Returning Officer,
           Nanded Tq. & Dist. Nanded

  5)       Janabai W/o Govind Shembole,
           Age:30 years, Occu.: Household,
           R/o. Vishnupuri, 
           Tq. & Dist. Nanded
                                        =                  RESPONDENTS 
                               -----
  Mr.Anil M.Gaikwad, Advocate for Petitioners;
  Mr.SP Tiwari,AGP for Respondent Nos. 1 to 3;
  Mr.SK Sawangikar, Adv. For Resp.No.5.
                                   -----
                               CORAM :  P.R.BORA,J.

DATE :

6 th

April,2017.

ORAL JUDGMENT:

1) Heard. Rule. Rule is made returnable

forthwith by consent of learned Counsel appearing

for the parties.

2) The petitioners have filed the present

petition taking exception to the order passed by

Additional Commissioner, Aurangabad Division,

Aurangabad on 1st March, 2017 in an appeal bearing

No.340/2016 filed by the present petitioners

against the order dated 19th September, 2016

passed by the Additional Collector, Nanded in

Gram Panchayat Dispute No.6/2016.

. The aforesaid Dispute was filed by

present Respondent No.5 before the Collector,

Nanded. It was the contention of Respondent No.5

that the petitioners shall be disqualified from

holding respectively the post of Sarpanch and

member of the Gram Panchayat since they have

committed encroachment on the government land.

The Dispute/Complaint so filed by Respondent No.5

was allowed by the Collector,Nanded and thereby

the petitioners are disqualified from holding

their respective post of Sarpanch and member of

the Gram Panchayat, Vishnupuri. Against the

decision of the Collector, Nanded, in the

aforesaid Gram Panchayat Dispute, the petitioners

preferred an appeal bearing Appeal No.340/2016 to

the Commissioner, Aurangabad Division,

Aurangabad. In the said appeal, the petitioners

also filed an application seeking stay to the

order passed by the Collector, Nanded. However,

the said application was rejected by the learned

Additional Commissioner, vide the order passed on

19.11.2016.

3) It is the contention of the petitioners

that thereafter the appeal was not heard on

merits by the learned Commissioner and has been

dismissed in default on 1st March, 2017. It is

the further contention of the petitioners that in

the order passed on 19.11.2016, though the next

date was given as 7th December, 2016, the matter

was not on Board on that day and thereafter the

date was given as 21st December, 2016. It is the

further contention of the petitioners that on 21 st

December, 2016, the appeal was not heard and the

matter was simply adjourned to 13th January, 2017.

On 13th January, 2017, the Advocate for the

petitioners could not remain present before the

learned Additional Commissioner and as such, the

appeal could not he heard. It is the further

contention of the petitioner that thereafter no

further date was given and the petitioners were

not aware as about the further progress in the

appeal so filed by them. It is the further

contention of the petitioners that only after the

order was served upon them on 7th March, 2017 that

they come to know that the appeal so filed by

them, has been dismissed for want of prosecution

on 1st March, 2017. Thereafter, the petitioners

applied for certified copy of the order passed by

the learned Commissioner on 1st March, 2017 and

after receiving the copy of the said order and

after having collected the other necessary

documents, preferred an application before the

learned Commissioner on 30th March, 2017 seeking

restoration of the appeal so dismissed for want

of prosecution.

4) Shri Gaikwad, learned counsel for the

petitioners, submitted that on 30th March, 2017

itself the notice was issued by Collector, Nanded

declaring the programme for election of Sarpanch

of Gram Panchayat, Vishnupuri. The learned

Counsel submitted that the petitioners,

therefore, immediately filed an application

seeking stay to the said election and to postpone

the said election till decision of the appeal

filed by them. The learned Counsel further

submitted that after hearing the arguments of the

counsel appearing for the petitioners, the

learned Commissioner, orally informed the

petitioners that their application has been

rejected and the reasoned order will be passed.

The learned counsel further submitted that

considering the urgency in the matter, the

petitioner immediately filed the present petition

challenging the order so passed by the Additional

Commissioner. The learned Counsel further

submitted that in the meanwhile, a copy of the

order passed by the learned Commissioner is

received to the petitioners whereby the

application for stay was rejected by the

Commissioner. The learned counsel submitted that

the restoration application has been filed by the

petitioners well within time. The learned

counsel submitted that there are just and valid

grounds for seeking restoration of the appeal by

the petitioner, which has been dismissed for want

of prosecution. The learned counsel submitted

that the appeal filed by the petitioners, needs

to be heard on merits and till then the election

for the post of Sarpanch shall be directed to be

postponed.

5) The learned counsel appearing for the

respondents has strongly opposed for granting any

such relief. Respondent No.5, who is the

contesting respondent, has tendered an affidavit

in reply across the Bar. The learned counsel

appearing for Respondent No.5 submitted that

because of the inaction and lethargy on the part

of the petitioners, the appeal has been dismissed

in default. The learned Counsel submitted that

the petitioners ought to have shown due diligence

in prosecuting their appeal. The learned counsel

submitted that the appeal has been dismissed for

want of prosecution only because of inaction on

the part of the petitioners and no relief in such

circumstances can be granted in their favour and

no fault can be found with the impugned order.

The learned counsel further submitted that from

the evidence on record, it has been sufficiently

proved that the petitioners have encroached upon

the portion of the Government land. The learned

Counsel submitted that the Collector in his order

has recorded a concrete finding as about the

encroachment made by the petitioners on

Government land and as such, no case is made out

in favour of the petitioners for grant of any

relief. The learned counsel further submitted

that when the election process has commenced, no

interference can be caused. The learned Counsel

has referred to Article 243-O(b) of the

Constitution of India and has also placed

reliance on the judgment in the case of Shri Sant

Sadguru Janardhan Swami (Moingiri Maharaj)

Sahakari Dugdha Utpadak Sanstha and anr. Vs.

State of Maharashtra and Ors. - AIR 2001 SC 3982.

The learned counsel submitted that all other

remedies are available for the petitioners.

6) Learned AGP appearing for Respondent

Nos. 1 to 4, has supported the impugned order.

Learned AGP submitted that no interference is

required in the order so passed.

7) I have carefully considered the

submissions made on behalf of the learned Counsel

appearing for the respective parties. I have

also perused the entire material on record. The

material on record shows that Respondent No.5,

who filed the Gram Panchayat Dispute to

Collector, Nanded, alleging that the petitioners

have committed encroachment on the Government

land and thereby have incurred the

disqualification to be continued as members of

the Gram Panchayat, has also filed the civil suit

before the Court of Civil Judge, Senior Division,

Nanded seeking injunction against the present

petitioners, restraining them from carrying out

any Pakka construction on the Government land.

In the said civil suit, Respondent No.5 had also

filed an application seeking interim injunction

and the same was granted in favour of Respondent

No.5 and the petitioners were thereby restrained

from carrying out any Pakka construction

allegedly on the Government land. The material on

record further shows that against the interim

injunction, so granted by the Civil Court, the

present petitioners preferred Misc.Civil Appeal

No.69/2015 before the District Judge, Nanded and

the same has been allowed and thereby the order

passed by the Civil Judge, Senior Division below

Exh.5 in RCS No.357/2015 has been set aside. The

material on record further shows that along with

the petitioners, plots were allotted to several

other villagers by the Government on the

Government land way back in the year 1992. The

plots so allotted are stated to be of the size

of 35 x 45 ft. The construction, as on today,

standing on the plot of the petitioners is

alleged to be of more than 45 ft.in length.

Thus, in the 5 ft. area, the petitioners are

alleged to have committed encroachment.

8) The learned counsel for the petitioners

has placed on record the lay out of the plots as

allotted by the Government to the villagers

including the petitioners. Taking me through the

said layout, learned Counsel brought to my notice

that though many of the plots are not in square

shape and some are even in rectangular shape, the

sizes of all these plots are stated to be 35' x

45'. The learned Counsel specifically inviting

my attention to the plot allotted to the

petitioners, in the said layout, submitted that

the said plot is also not in square shape. On

perusal of the layout and more particularly the

plot allotted to the petitioners, there appears

reason to believe that the measurement of the

subject plot may be bit different than as

mentioned in the allotment.

9) It is the assertive contentions of the

petitioners that neither they have carried out

any pakka construction nor they have made any

encroachment. The learned Counsel for the

petitioners submitted that even according to the

complaint of Respondent No.5, the alleged

construction is of a bath-room and toilet which

is covered by a tin-shed and cannot be termed as

Pakka construction. The learned counsel

submitted that even according to the allegation

in the complaint only two and half ft. portion is

alleged to have constructed on the Government

land, more particularly on the road. The learned

counsel submitted that if the correct

measurements are carried out by an expert, the

petitioners are sure that whatever construction

they have made will be held to have been made by

them without making any encroachment. The

learned Counsel further submitted that before

carrying out the construction, the permission has

been obtained by the petitioners from the Gram

Panchayat. It is, however, the allegation of

Respondent No.5 that the petitioners have

constructed beyond the permission granted to them

and thus cannot deny the allegation that they

have not committed encroachment.

10) After having considered the rival

contentions and the material on record, it is

evident that unless the matter is heard finally,

it is difficult to arrive at to any concrete

conclusion whether the petitioners have made any

encroachment on the Government land or their

construction is within the limits of their plot

allotted to them. The findings recorded by the

learned Additional District Judge while deciding

the Misc. Civil Appeal filed by the petitioners,

prima facie, support the case of the petitioners.

As has been argued by the petitioners, the

learned Collector has relied on the spot

inspection report submitted by non-technical

person. No exact measurements were before the

learned Collector nor there was any sketch of the

alleged construction. There is substance in the

argument made by the learned Counsel for the

petitioners that for proving the encroachment,

there must be very concrete evidence on record.

Since the petitioners are disqualified on the

ground that they have committed encroachment on

the Government land, there must have been

unimpeachable evidence to show that the

petitioner have committed such encroachment on

the Government land. The very issue whether such

encroachment has been committed or otherwise,

needs to be decided in an appeal filed by the

petitioners. It is a matter of record that the

appeal so filed by the petitioners has been

dismissed in default. It is also the matter of

record that the petitioners have filed the

application within the stipulated period of

limitation praying for restoration of the appeal.

Admittedly, the said application is pending

before the learned Commissioner. The grounds

which are stated by the petitioners for

restoration of their appeal, prima facie, appear

to be just and sufficient for restoration of the

appeal.

11) In the circumstances, as above, the

petitioners have certainly made out a case for

restoration of their appeal before the Additional

Commissioner and its decision on merits. Till

then, the Collector, Nanded needs to be

restrained from holding the election for the post

of Sarpanch of Gram Panchayat, Vishnupuri

scheduled to be held on 7th April, 2017.

12) In the result, the following order, -

ORDER

i) The order dated 1st Mach 2017

passed by Respondent No.2 is set aside,

consequently, the Appeal No.340/2016

filed by the petitioners is restored to

file;

ii) The learned Additional

Commissioner, Aurangabad Division, shall

hear and dispose of the said appeal by

giving due opportunities to the parties

to the said appeal, as expeditiously as

possible and preferably within the

period of four weeks from the date of

this order;

iii) The process of election

scheduled on 7th April, 2017 declared by

the Returning Officer, vide notice dated

30th March, 2017 for electing the

Sarpanch to the Village Panchayat,

Vishnupuri, shall stand stayed till

decision of the appeal by the Additional

Commissioner, Aurangabad;

iv) The petitioners and Respondent

No.5 shall appear before Additional

Commissioner, Aurangabad on 10th April,

2017 at 10.30 a.m. and shall abide by

the further instructions which may be

issued by the said authority for

conduction of the appeal;

13) The writ petition stands allowed as

above. Rule is made absolute in the aforesaid

terms.

. Parties to act on authenticated copy of

this judgment.

(P.R.BORA) JUDGE

bdv/