Bombay High Court
Anil Jagannath Sawant vs The State Of Maharashtra on 6 January, 2021
Bench: Mangesh S. Patil
963.wp.6045.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6045 OF 2020
Anil S/o. Jagannath Sawant,
Age :28 years, Occu. Education,
R/o. Gandheli, Post Adgaon,
Tq. & Dist. Aurangabad. ... PETITIONER
VERSUS
1. The State of Maharashtra,
through its Principal Secretary,
Revenue Department,
Mantralaya, Mumbai - 32.
2. The Additional Divisional Commissioner,
Aurangabad Division, Aurangabad.
3. The District Collector, Aurangabad,
Tal. & District Aurangabad.
4. Amol S/o Asaram Talekar,
Age : 33 years, Occ. Agri. and
Upa-Sarpanch of Grampanchayat,
Gandheli, Tal. & District Aurangabad. ... RESPONDENTS
...
Advocate for Petitioner : Mr. S.B. Solanke h/f. Solanke and Solanke
Associates
AGP for Respondent/State: Mr. P.G. Borade
Advocate for Respondent No. 4: Mr. A.D. Godhamgaonkar
...
CORAM : MANGESH S. PATIL, J.
DATE : 06.01.2021
ORAL JUDGMENT :
Heard. Rule. The Rule made returnable forthwith. With the
consent of both the sides, the matter is heard finally at the stage of
admission.
963.wp.6045.2020.odt
2. The petitioner is approaching this Court invoking the powers
under Article 227 of the Constitution of India questioning the legality of the
concurrent findings and orders passed by the learned Collector and the
Commissioner under the provisions of Sub-section 2 of Section 16 of the
Maharashtra Village Panchayats Act, 1959 (hereinafter 'the Panchayats Act')
thereby dismissing his complaint wherein he sought disqualification of the
respondent No. 4 under the provisions of Section 14 (1) (J-3) of the
Panchayats Act for making encroachment over the Government Land.
3. The learned advocate for the petitioner submits that there was
ample evidence before both the authorities demonstrating that the father of
the petitioner had indeed made an encroachment over a gayran land Gat
No.95 of the Village. In fact the Collector in paragraph No.16 of the order
had also concluded that it was an encroachment on the gayran land. He
even issued a direction in Clause 2 of the operative part directing the
encroachment to be removed but still refused to disqualify the respondent
No.4.
4. The learned advocate also points out that in fact the self same
Collector had filed affidavit (Exhibit-F) in Writ Petition No.5104/2016
taking a stand about the father of the respondent No. 4, who was
respondent No. 6 in that Writ Petition, to have made encroachment over the
gayran land. This affidavit was filed in the month of February 2019 and the
learned Collector decided the proceeding under Section 16(2) on
04.06.2019. In spite of such a conclusion having been drawn by the learned
963.wp.6045.2020.odt
Collector he refused to exercise the powers vested in him under Section
16(2) of the Panchayats Act.
5. The learned advocate would further submit that even the
learned Divisional Commissioner while passing the impugned order has
ignored all these facts and dismissed the Appeal for no reason.
6. The learned advocate would submit that since the father of the
petitioner has made an encroachment, following the principles laid down in
the case of Janabai Vs. Additional Commissioner and others ; AIR 2018 SC
5068, as the respondent No. 4 is residing with his father the encroachment
made by the latter would be sufficient to attract disqualification of the
former. Therefore he submits that the authorities have failed to consider all
the facts and circumstances and the law and have refused to exercise the
jurisdiction vested in them of disqualifying the respondent No. 4.
7. The learned advocate for the respondent No. 4 would point out
that since the authorities below were deciding a quasi judicial proceeding,
they were not expected to travel beyond what was alleged by the petitioner.
He would point out that in the proceeding filed by the petitioner before the
Collector under Section 16(2), the allegation was in respect of the property
bearing Grampanchayat No.305 to be an encroachment and for that reason
the petitioner was seeking disqualification of the respondent No.4. Since the
inquiry was restricted to this property alone alleged to be the encroachment
and since there was nothing to demonstrate that it was in fact an
encroachment, rather there was evidence to show that the father of the
963.wp.6045.2020.odt
respondent No. 4 was allotted that piece of land by passing a resolution by
the Grampanchayat, both the authorities were justified in refusing the
request of the petitioner to disqualify the respondent No.4. The learned
advocate would submit that the inquiry was restricted to the fact as to if the
construction on the Grampanchayat property No. 304 was an encroachment
or not. The inquiry could not have travelled beyond what was pleaded and
therefore both the authorities were justified in dismissing the complaint.
8. Needless to state that under the provision of Section 16 (2)
initially the Collector is expected to hold an inquiry when any dispute arises
about occurrence of any vacancy or otherwise on account of some
disqualification contemplated under Section 14. Any person aggrieved by
the decision of the Collector can challenge it before the Commissioner. It
necessarily presupposes that both the authorities are expected to conduct
the inquiry of a quasi judicial nature and are supposed to follow the
principles of natural justice. Obviously, therefore, when the petitioner was
coming with a specific allegation that the property bearing Grampanchayat
No.304 is an encroachment and seeking disqualification of the respondent
No.4 on that ground alone, the scope of the inquiry was restricted to
ascertain that fact only.
9. Once it is found that the inquiry under Section 16 (2) would be
restricted to what has been alleged against a member of the Grampanchayat,
no fault can be found with the observations and conclusions of the two
authorities below, which are concurrent, to the effect that there was no
963.wp.6045.2020.odt
encroachment as alleged by the petitioner. There was record to show that
by passing a resolution on 01.04.1983 the father of the respondent No.4
was allotted that portion of land for residence. Therefore there was no
question of such possession over that portion to be branded as an
encroachment. Since the Collector and the Commissioner have found that it
was not an encroachment, they are certainly justified in refusing to
disqualify the respondent No.4 on the basis of the allegations levelled in the
proceeding initiated by the petitioner. I find no sufficient and cogent reason
to interfere in such concurrent findings of the two authorities below.
10. This much of discussion would have been sufficient but for the
peculiar facts and circumstances obtaining in the matter in hand. As can be
seen from the impugned order passed by the Collector, though he has
concluded that the father of the respondent No.4 has not made any
encroachment as is alleged by the petitioner, in paragraph No. 16 of the
order he has made certain observations concluding that the father of the
respondent No.4 has in fact made some encroachment over a gayran land.
Obviously, he was not called upon to decide and discuss that fact which was
no pleaded/alleged by the petitioner, as mentioned herein above.
11. Naturally the father of the respondent No.4 was aggrieved by
such observations and particularly the direction given by the Collector in
Clause No.2 of the operative part for removal of the encroachment from the
gayran land. He challenged that direction in Writ Petition No.6845/2019
and this Court by the order dated 16.07.2019 quashed and set aside clause
963.wp.6045.2020.odt
No.2 of the operative order of the Collector.
12. Simultaneously, some of the villagers had preferred Writ
Petition No.5104/2016 by arraying the father of the respondent No.4 as
respondent No. 6 and sought direction to remove the encroachment made
by him on the gairan land. As is pointed out by the learned advocate for the
petitioner the Collector who passed the impugned order filed an affidavit in
that Writ Petition substantiating his allegations about encroachment by the
respondent No.6 i.e. father of the respondent No.4 herein over a portion
admeasuring 40 Are from lands Gat No.95 of the village which is a
Government gayran land. Based on the excerpts from that affidavit the
Division Bench disposed of the Writ Petition by the order dated 20.02.2019.
However, in the Review Application No.42/2019 filed in that Writ Petition
by the father of the respondent No.4 this Court even clarified that it had not
adjudicated as to whether there was any encroachment made. It was also
clarified that before taking any action against him, the authorities would
extend an opportunity to him to place all the documents on record and
consider it before proceeding against him in accordance with law.
13. It is in the light of such supervening events obtaining on the
record, it was expected of the learned Collector to have been more active in
exercising the powers under Section 16 (2). In spite of having concluded
that there was an encroachment, may be beyond the pleadings of the
petitioner, he could have invoked the powers under Section 16 (2) Suo moto
which the law permits him to do. Obviously, even if he wanted to invoke
963.wp.6045.2020.odt
such powers suo moto independent of the allegations being levelled by the
petitioner he could have extended an opportunity to the respondent No.4
and his father of being heard before taking any decision. But once he had
concluded that there was an encroachment by the father of the respondent
No.4 on a gayran land except issuing a direction of its removal he has failed
to act suo moto. It is therefore necessary to clarify that though the Writ
Petition is being dismissed, it would always be open for the Collector to
exercise the powers under Section 16 (2) suo moto or at the instance of any
person if there is some encroachment made on the Government Land.
14. The Writ Petition is dismissed. The Rule is discharged.
(MANGESH S. PATIL, J.)
habeeb
