Subhash Krushnarao Khartadkar vs The Divisional Commissioner, ...
2022 Latest Caselaw 9332 Bom

                                       1                     927-WP-5722-22-J.odt




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

              WRIT PETITION NO. 5722 OF 2022

     Subhash Krushnarao Khartadkar,                 : PETITIONER
     Aged about 60 years, Occu. Retired,
     R/o Sirso, Tq. Murtizapur, Dist. Akola
                                VERSUS
 1 The Divisional Commissionerer, Amravati          :
   Division, Amravati
 2 The Village Development Officer,                 :
   Grampanchayat, Sirso, Tq. Murtizapur,
   Dist. Akola
 3 The Deputy Superintendent of Land
   Records, Murtizapur, Tq. Murtizapur,             : RESPONDENTS
   Dist. Akola
 4 The Tahsildar, Murtizapur, Tq. Murtizapur, :
   Dist. Akola
 5 The Collector, Akola                             :
 6 Jaikumar Mahadeo Tayde,                          :
   Aged about 38 years, R/o Sirso,
   Tq. Murtizapur, Dist. Akola

Mr. A.J. Gilda, Advocate for petitioners
Mr. N.R. Rode, AGP for Respondent Nos.1, 3, 4 and 5
Mr. N.A. Gawande, Advocate for Respondent No.6

                          CORAM : MANISH PITALE, J.

                          DATE      : 16th SEPTEMBER 2022

ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally with the

consent of learned counsel appearing for rival parties.

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2. Heard Mr. A.J. Gilda, learned counsel appearing for the

petitioner, Mr. Gawande, learned counsel appearing for the contesting

respondent No.6 on caveat and Mr. N.R. Rode, learned Assistant

Government Pleader appearing on behalf of the respondent Nos. 1, 3, 4

and 5. The respondent No.2 being the Village Development Officer of

the Grampanchayat is not a contesting respondent and, therefore,

service of notice on the said respondent is dispensed with.

3. Although, this petition has been listed for the first time before

this Court, since the contesting respondent has appeared on caveat, the

petition is heard finally.

4. In the present case, the petitioner was elected as Member of

Grampanchayat Sirso in the elections held in the year 2021.

5. The respondent No.6 filed a Complaint / Application for

disqualification of the petitioner from the aforesaid elected office for

allegedly having incurred disqualification under Section 14(1)(j-3) of

the Maharashtra Village Panchayat Act, 1959, which prescribes

disqualification for having encroached upon Government land or public

property. It was alleged that the petitioner had encroached upon

Government land located in Plot No.552 at Sirso, Tahsil Murtizapur,

District Akola. The petitioner denied any such encroachment on his

part.

3 927-WP-5722-22-J.odt

6. The respondent No.5 - Collector, before whom the said

proceeding was initiated, called for a report from the respondent No.3

i.e. the Deputy Superintendent of Land Records after conducting spot

inspection. After receiving said report and hearing the parties by order

dated 10/06/2022, the respondent - Collector allowed the application

filed by respondent No.6, holding that the petitioner had indeed

incurred disqualification under Section 14(1)(j-3) of the aforesaid Act

and accordingly held that the petitioner stood disqualified.

7. Aggrieved by the same, the petitioner filed appeal under Section

16(2) of the aforesaid Act before the respondent No.1 - Divisional

Commissioner. Initially, the Commissioner granted stay to the order of

the respondent - Collector, but, eventually, by the impugned order

dated 24/08/2022, the Commissioner dismissed the appeal, thereby

confirming the order of disqualification passed against the petitioner.

8. Mr. Gilda, learned counsel appearing for the petitioner submitted

that in the present case, the documents on record would show that

while the Deputy Superintendent of Land Records, did submit a report

dated 08/06/2022, before the respondent - Collector making certain

observations upon spot inspection, it was specifically recorded that the

report of the Tahsildar should also be called in the matter. The

petitioner throughout stoutly denied any encroachment on 4 927-WP-5722-22-J.odt

Government land and it was submitted that even in respect of plot

No.552, the cousin of the petitioner had merely erected barbed wire

fencing, only to ensure that cattle and other animals do not stray into

the agricultural field belonging to the aforesaid cousin of the petitioner.

9. The respondent - Collector held against the petitioner on the

basis of the material available on record. The Commissioner specifically

granted stay to the order passed by the Collector, calling for a report

from the Tahsildar. It appears that there was indeed a report received

from the Tahsildar in the proceedings before the Commissioner, but,

according to the learned counsel appearing for the petitioner, the report

prepared by the Tahsildar was behind the back of the petitioner and,

therefore, there was clear violation of principles of natural justice when

the Commissioner erroneously confirmed the order of disqualification

passed by the Collector. The learned counsel appearing for the

petitioner placed reliance on the judgment of this Court in the case of

Lalita Dilip Khandalkar Vs. Additional Commissioner and Others

reported in (2019) 3 AIR Bom R 382.

10. On the other hand, Mr. Gawande, learned counsel appearing for

the respondent No.6 submitted that the report prepared by the Deputy

Superintendent of Land Records upon spot inspection in the presence

of the rival parties sufficiently indicated encroachment upon 5 927-WP-5722-22-J.odt

Government land on the part of the cousin of the petitioner and

applying the position of law laid down by the Hon'ble Supreme Court

in the case of Janabai Vs. Additional Commissioner and others reported

in 2018(5) Mh.L.J. 921, applying purposive interpretation on Section

14(1)(j-3) of the aforesaid Act, the Collector was justified in passing the

order of disqualification of the petitioner. It was submitted that the

contention raised on behalf of the petitioner as regards report submitted

by the Tahsildar did not deserve consideration in the light of the report

already on record authored by the Deputy Superintendent of Land

Records. It was further submitted that the material on record clearly

demonstrated that the petitioner had clearly incurred disqualification.

11. Mr. N.R. Rode, learned AGP appearing for respondent Nos. 1, 3,

4 and 5 and defended the impugned orders passed by the authorities.

12. Having heard the learned counsel appearing for the rival parties,

this Court is of the opinion that since the question of disqualification of

the petitioner holding elected office is subject matter of consideration, it

is expected that the authorities and this Court consider the material

available on record in a strict manner, although purposive interpretation

of the provision as laid down by the Hon'ble Supreme Court has to be

followed. In the light of the law laid down by the Hon'ble Supreme

Court, if there is material to indicate that the cousin of the petitioner 6 927-WP-5722-22-J.odt

had indeed encroached upon Government land, the petitioner would

indeed incur disqualification under Sections 14(1)(j-3) of the said Act.

But, the crucial question is, as to whether the procedure as expected

from the authorities below was followed to the hilt demonstrating

satisfaction of the principles of natural justice to indicate that factual

findings were correctly rendered on the question of encroachment. In

such situations, the spot inspection reports are called from responsible

Officers, wherein it is expected that all parties remain present so that no

allegation is levelled against the concerned Officer who actually

conducts the spot inspection for verification of the allegations levelled

against the elected representative.

13. In the present case, the Deputy Superintendent of Land Records

indeed submitted a report to the respondent - Collector. While making

comments upon the ground situation pursuant to spot inspection, the

Deputy Superintendent of Land Records also indicated that in his

opinion, a report from the Tahsildar also ought to be called to ascertain

the factual matrix.

14. It is an admitted position that no report was called from the

Tahsildar while the proceedings were pending and decided by the

respondent - Collector. As noted above, according to the petitioner,

neither he nor his cousin had encroached upon or were in occupation of 7 927-WP-5722-22-J.odt

Government land and that, therefore, there was no question of the

petitioner incurring disqualification under Section 14(1)(j-3) of the said

Act.

15. It is significant that while granting stay in favour of the petitioner,

at the stage of entertaining the appeal filed by him, the respondent -

Commissioner specifically called for a report from the Tahsildar. The

material on record shows that the Tahsildar did submit a report before

the Commissioner. It is specifically alleged by the petitioner that the

Tahsildar prepared the report without putting the petitioner to notice

and that the report was prepared behind his back. A perusal of the

report also does not indicate that the Tahsildar had actually put the

petitioner and all other relevant parties to notice before conducting the

spot inspection and submitting report to the Commissioner. Yet, the

Commissioner proceeded to hear the matter finally and dismissed the

appeal, thereby confirming the order of disqualification passed by the

Collector. The learned counsel appearing for the petitioner has

vehemently submitted that once the Commissioner had directed the

Tahsildar to submit a report as regards the allegation of encroachment

while granting stay in favour of the petitioner, it was expected that the

petitioner would be put to notice when the Tahsildar undertook the

aforesaid exercise as directed by the Commissioner.

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16. In this regard, reliance placed on the judgment in the case of

Lalita Dilip Khandalkar Vs. Additional Commissioner (supra), is

appropriate. In the said case also, it was found that during the process

of conducting spot inspection, in the backdrop of a similar allegation of

encroaching on Government land, the elected representative was not

put to notice and that the report was prepared behind her back. It was

specifically held in the said judgment that when the report rendered

adverse findings, the fact that it was prepared without notice to the

petitioner therein completely vitiated the said report and such an

exercise could not be held as a basis for disqualifying the elected

representative.

17. In the present case also, this Court is satisfied, on the basis of the

material available on record, that the principles of natural justice stood

violated and that the Tahsildar could not have proceeded to submit his

report to the Commissioner without putting the petitioner to notice,

while conducting the spot inspection or verifying the allegations made

against the petitioner as regards the encroachment. Therefore, the order

disqualifying the petitioner appears to be vitiated. The report of the

Deputy Superintendent of Land Records appears to be tentative in

nature, for the reason that the said Officer specifically recommended

that a report also be called from the Tahsildar. In such a situation, the 9 927-WP-5722-22-J.odt

Collector ought not to have passed the order of disqualification, which

obviously has drastic consequences, solely relying upon the report of the

Deputy Superintendent of Land Records.

18. In the light of the above, this Court is convinced that the order of

disqualification issued against the petitioner, as it stands, cannot be

sustained. At the same time, the allegation regarding encroachment on

the Government land needs proper verification, in order to examine

whether the petitioner has indeed incurred disqualification under

Section 14(1)(j-3) of the aforesaid Act. In such a situation, it would be

appropriate that the impugned orders are set aside and matter is

remanded to the respondent - Collector for fresh consideration in

accordance with law.

19. In view of the above, the writ petition is partly allowed. The

impugned orders passed by the respondents - Collector and

Commissioner, are quashed and set aside. The matter is remanded to

the respondent No.5 - Collector, Akola, for fresh consideration.

20. The parties shall remain present before the respondent No.5 -

Collector on 26/09/2022.

21. The Collector shall proceed strictly in accordance with law and in

consonance with the principles of natural justice. The spot inspection 10 927-WP-5722-22-J.odt

that the Collector shall cause to be carried out, shall be undertaken in

the presence of the petitioner and respondent No.6. Thereupon, ample

opportunity will be granted to the parties to respond to the said report

and thereafter, final orders shall be passed by the Collector on the

application for disqualification moved by respondent No.6.

22. It is made clear that the respondent No.5 - Collector shall not be

influenced by the observations in the present judgment while deciding

the application for disqualification and he shall decide the application

in accordance with law.

23. The respondent - Collector shall decide the application filed by

the respondent No.6 finally within a period of three months from the

appearance of the parties before the Collector. No costs. Rule is made

absolute in above terms.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:20.09.2022 14:48