Bombay High Court
Padma Ganesh Bodke vs The Additional Divisional ... on 13 May, 2022
Bench: S. G. Mehare
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940 sr.no.R.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
940 WRIT PETITION NO.5159 OF 2022
PADMA GANESH BODKE
VERSUS
THE ADDITIONAL DIVISIONAL COMMISSIONER AND OTHERS
...
Advocate for Petitioner : Mr. V.D. Hon Senior counsel h/f. Mr.Ashwin V.
Hon
AGP for Respondents : Mrs. V.S. Chaudhari.
Advocate for respondent No.3 : Mr. S.G. Kawade.
CORAM : S.G. MEHARE, J.
DATE : 13TH MAY, 2022 (VACATION COURT)
PER COURT:
1) Issue notice to respondents. Learned AGP waives notice for
respondents Nos. 1 and 2. Mr. Kawade, learned counsel, waives notice for
respondent No.3.
2] Heard learned Senior counsel for the petitioner and learned
counsel for respondent/ caveator Shri
3] The petitioner is elected Upsarpanch of Village Panchayat,
Asarkheda. The petitioner has impugned the orders passed by the
Collector, Jalna, and Divisional Commissioner, Aurangabad, declaring the
petitioner disqualified under Section 14(1)(J) of the Bombay Village
Panchayat Act.
4] The learned Senior Counsel appearing for the petitioner has
vehemently argued that both the authorities have considered the sole
document dated 30.9.2021, issued by the Public Works Department,
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940 sr.no.R.odt
Badnapur, who has no authority at all to give any report. As against this,
various documents like report submitted by the Sub Divisional Officer,
PWD Sub Division, Jafrabad, panchanama drawn by the Village
Development Officer, photographs and affidavits of neighbours showing
that the petitioner or her husband, has made no encroachments as
alleged, have not been considered either by the Collector or the
Commissioner, while passing the impugned orders. The learned Senior
Counsel would further point out that the sole document relied upon by
both the authorities was prepared from GPS. At no point in time, the Sub
Divisional Officer PWD Sub Division Badnapur had issued a notice to the
petitioner or her husband while ascertaining the so-called encroachment.
In the absence of the petitioner and her husband and actual inspection of
the so-called encroachment, the Sub Executive Engineer, P.W.D. Sub
Division Badnapur has formed a firm opinion that the husband of the
petitioner has encroached upon the Government road running from
Asarkheda to Nivdunga. Therefore, both the orders are prima facie
erroneous on the face of the record. The documents submitted by the
petitioners ought to have been considered by both the authorities.
5] Per contra, learned counsel for the respondent no.3/
caveator/ the complainant, at whose instance the proceeding under
Section 14(1)(J) was initiated, would submit that initially, the complaint
was made to the Village Development Officer about the encroachment of
the petitioner's husband. However, he was under the influence of the
petitioner. Hence, he did not prepare a panchanama of encroachment
made by the petitioner or her husband. Thereafter, he made an
application to the Jafrabad PWD. However, he was advised to seek the
relevant document from P.W.D. sub-division, Badnapur. The concerned
authority has given the correct report showing that the husband of the
petitioner has encroached upon the High Way in front of her house.
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6] The impugned order reveals that none of the documents
which have been relied upon by the petitioner was discussed either by
the Collector or the Commissioner, Aurangabad, while passing the
impugned orders. Both the responsible authorities have not followed the
rule of appreciation of the evidence. The documents relied upon by the
learned Senior Counsel would prima facie prove that there was no
encroachment made by the husband of the petitioner as alleged by the
present respondent No.3 /caveator. The learned Senior Counsel for the
petitioner would rely upon the judgment delivered by the Bombay High
Court, Bench at Aurangabad in W.P. No. 69 of 2020 in the case of
Prashant Eknath Ghule vs The Additional Commissioner, Nashik Division
and others dated 15.01.2020. The Honourable Single Judge of this Court
has observed in the above case that the findings recorded are apparently
on the bedrock of the panchanama dated 6th September 2020, which in
my view, is not sufficient to record the finding of encroachment as would
subvert the democratic will of the electorate.
7] The learned counsel for respondent No.3/caveator also
relied upon the judgment of the Hon'ble Apex Court in the cae of
"Janabai Vs. Additional Commissioner and others reported in (2018) 18
SCC 196, wherein it has been observed that encroachment on public land
by the family members of elected representatives amounts to
encroachment by elected candidates. The ratio laid down by the
Honourable Apex Court can not be disputed. However, the fact remains
that the allegation of encroachment is not sufficient to believe from the
bare statement of the complainant without any cogent and reliable
evidence.
8] The burden was on respondent no.3/ caveator to prove that
the petitioner had made encroachment upon Government land. There are
hundreds of ways to prove encroachment. The petitioner had submitted
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documents on record in support of his contention disproving the claim of
the complainant that there is encroachment, but both the authorities
have not discussed the said documents. The validity of the document
relied upon by both the authorities cannot be believed in the absence of a
notice to the person who allegedly committed encroachment. Such a
single document cannot throw a democratically elected person from the
post of Sarpanch or Upasarpanch. The petitioner produced but sufficient
evidence before both the authorities to disprove the allegations of
encroachment, both authorities even not whispered a single word about
its admissibility in the impugned orders. At least, they should have
recorded reasons for discarding those documents. In the absence of
discussion about documents produced by the petitioner, the impugned
order prima facie is not in consonance with the principles of law. The
petitioner has a strong prima facie case to dispute the claim of the
caveator/respondent. Hence, the petitioner is entitled to a stay to the
effect, execution and implementation of the impugned orders. Hence, the
following order:-
O R D E R
[ii] The effect, execution, implementation and operation of the
impugned orders passed by the Collector and Commissioner have been
stayed until further orders.
[ii] The caveator and State have the liberty to file their affidavit
in reply on or before 15 th June 2022. Petitioner is also at liberty to file a
rejoinder, if any, till 15th June 2022.
[iii] Stand Over to 15th June 2022.
[S.G. MEHARE]
VACATION JUDGE.
grt/
