Shri. Rakesh S/O Bhanudas Kale vs The Additional Commissioner, ...
2018 Latest Caselaw 517 Bom

 Judgment                                      1               wp4687.2017.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO. 4687/2017

        Shri. Rakesh S/o Bhanudas Kale,
        Aged about 30 years, Occu. Sarpanch,
        R/o Dongargaon (Railway),
        Tah. Warora, Dist. Chandrapur          ... PETITIONER


                               ...V E R S U S...

 1]     The Additional Commissioner, 
        Nagpur, Divisional Commissioner
        Office Compound, Civil Lines, 
        Nagpur

 2]     The Additional Commissioner, 
        Chandrapur, Collector Office
        Compound, Chandrapur

 3]     The Tahasildar, Warora,
        Tahasil Compound Warora, 
        Dist. Chandrapur

 4]     Shri Khushal S/o Rajeshwar 
        Somalwar, Aged about 53 years, 
        Occ. Agriculturist,
        R/o Dongargaon (Railway), 
        Tah. Warora, Dist. Chandrapur               ... RESPONDENTS

 ===================================
       Shri A.P. Thakare, Advocate for the petitioner
      Miss M. Naik, AGP for the respondent nos. 1 to 3
     Shri U.K. Bisen, Advocate for the respondent no. 4
 ===================================

                                           CORAM:- Z.A. HAQ,J.
                                                       th
                                           DATED :- 16    JANUARY, 2018
                                                                       




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  Judgment                                      2                  wp4687.2017.odt

 ORAL JUDGMENT :-


                Heard. 

                Rule. Rule made returnable forthwith. 



 2]             The   petitioner   got   elected   as   member   of   the   Gram 

 Panchayat on 04/09/2015 and then got elected as Sarpanch of the 

 Gram   Panchayat   on   09/09/2015.   The   respondent   no.   4   filed   a 

 complaint   against   the   petitioner   that   he   cannot   continue   as 

 member   and   Sarpanch   of   the   Gram   Panchayat   as   he   has 

 encroached on government land and in view of the provisions of 

 Section   14   (1)(j-3)   of   the   Maharashtra   Village   Panchayats   Act, 

 1958 he is disqualified from continuing as member and Sarpanch 

 of   the   Gram   Panchayat.   The   Subordinate   Authorities   have 

 concurrently   recorded   that   the   father   of   the   petitioner   has 

 encroached on government land and considering the proposition 

 laid down by the Division Bench of this Court in the case of  Shri  

 Devidas   S/o   Matiramji   Surwade   vs.   Additional   Commissioner,  

 Amravati   &   Ors.   Reported   in   2013   (7)   ALL   MR   at   page   5,   the 

 petitioner is disqualified from continuing as member and Sarpanch 

 of the Gram Panchayat. 




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 3]             The learned advocate for the petitioner has pointed out 

 the judgment given by the Hon'ble Supreme Court in the case of 

 Sagar   Pandurang   Dhundare   vs.   Keshav   Aaba   Patil   and   others  

 reported in 2018 (1) Mh.L.J at page 1 by which the judgment given 

 by   the   Division   Bench   of   this   Court   in   the   case   of  Devidas   S/o  

 Matiramji   Surwade  (Supra)   is   overruled   and   it   is   held   that 

 encroachment   by   any   member   of   the   family   cannot   result   in 

 disqualification   of   the   elected   member.   In   view   of   the   findings 

 recorded   by   the   Subordinate   Authorities   that   encroachment   on 

 government land is by the father of the petitioner and not by the 

 petitioner   and   considering   the   proposition   laid   down   in   the 

 judgment given in the case of  Sagar Pandurang Dhundare (Supra), 

 it   has   to   be   held   that   the   impugned   orders   disqualifying   the 

 petitioner from continuing as member and Sarpanch  of the Gram 

 Panchayat are unsustainable. 

                Hence, the following order is passed:-



                                           O R D E R

1] The impugned orders disqualifying the

petitioner from continuing as member and Sarpanch of

Judgment 4 wp4687.2017.odt

the Gram Panchayat are set aside.

2] The complaint filed by the respondent no. 4

against the petitioner is dismissed.

Rule is made absolute in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

Ansari