Bombay High Court
Sahila Shaikh Mohamad Hanif vs The Additional Divisional ... on 2 August, 2024
2024:BHC-AUG:16797 (1) wp-12333-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12333 OF 2023
Sahila Shaikh Mohamad Hanif,
Age: 44 yrs, Occu: Household,
R/o. Sompuri, Tq. Paithan,
Dist. Aurangabad. ..Petitioner
Versus
1. The Additional Divisional Commissioner-2
Divisional Commissioner, Office,
At Aurangabad, Tq. & Dist. Aurangabad.
2. The District Collector,
District Collector Office,
Aurangabad Tq. & Dist. Aurangabad.
3. Pathan Shabana Rakibkhan
Age:- 29 years, Occu:- Sarpanch,
R/o. Sompuri, Tq. Paithan,
Dist. Aurangabad
4. Shaikh Anis Shaikh Rashid,
Age:- 50 years, Occu:- Agril,
R/o. Sompuri, Tq. Paithan,
Dist. Aurangabad ..Respondents
....
Mr. C. V. Bodkhe h/f Mr. R. V. Gore, Advocate for Petitioner.
Mr. A. S. Shinde, AGP for Respondent Nos.1 and 2.
Mr. S. P. Sonwane h/f Mr. S. S. Thombre, Advocate for Respondent
No.3.
Mr. Imran Khan Gaffar Khan Durrani, Advocate for Respondent
No.4.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 02nd AUGUST 2024.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. By the consent of the
parties, matter is taken up for final hearing at the stage of
admission.
(2) wp-12333-2023.odt
2. The petitioner impugns judgment and order dated
02.03.2023 passed by the Additional Divisional Commissioner-2,
Aurangabad in Appeal No.2022/Grampanchayat/Appeal.2/CR.111
as well as judgment and order dated 26.08.2022 passed by the
District Collector in Case No.2021@lk-iz-@xzkiav@[email protected]@dye 14
(1) (t&3)@lhvkj dza-99.
3. The petitioner filed proceeding under Section 14(1)(J-3) read
with 16 of the Maharashtra Village Panchayat Act, 1958 alleging
that respondent no.3 has been elected as member of village
panchayat during general election of 2021. She resides alongwith
her husband Rakibkhan Rashid Khan at village Sompuri in a
house, which is constructed on Government land. The husband of
respondent no.3 has obtained benefit under Swachh Bharat
Mission (Rural) and got constructed personal toilet on Government
land. Till election of respondent no.3, her family was residing on
encroached area from Gut No.1. Consequently, respondent no.3
has incurred disqualification in terms of Section 14(1)(J-3) of the
Maharashtra Village Panchayat Act. In pursuance of aforesaid
application, notice was served upon respondent no.3, he denied the
allegations of encroachment and contends that benefit of Swachh
Bharat Mission has been taken by her husband in the year 2016-
2017 i.e. much prior to general election of 2021. Her brother-in-law
is residing separately. She resides in house at Gut No.121 i.e.
private land, which has been purchased under Agreement to Sale
dated 13.12.2018. The relevant entries are taken in
grampanchayat record.
4. It appears that, Tahsildar, Paithan submitted his report
dated 01.07.2021 stating that respondent has not made
encroachment on Government land. The report specifies that
brother-in-law of respondent no.3 has made construction on
(3) wp-12333-2023.odt
Government land situated at Gut No.1. However, respondent no.3
is unconcerned with such construction. The District Collector after
considering the relevant material arrived at finding that
respondent no.3 resides in private property at Gut No.121/2 within
gavthan area. Similarly, report of Tahsildar, Paithan dated
01.07.2021 and Village Development Officer dated 02.12.2021
support version of respondent no.3. Consequently, rejected
Application No.99/2021 filed by petitioner. In Appeal Additional
Divisional Commissioner concurred with aforesaid findings
observing that there is no evidence to indicate that respondent no.3
or her family member resides on Government land from Gut No.1.
Infact, they are residing in private property. It is also observed
that husband of the respondent no.3 took benefit of Government
scheme for construction of toilet in the year 2017-2018, but they
are residing separately from her brother-in-law since before
election. Consequently, dismissed the Appeal and concurred with
the findings of District Magistrate.
5. Mr. Bodkhe, learned Advocate appearing for the petitioner
urges that the affidavit filed by husband of respondent no.3 clearly
states that he is residing on encroached land and claimed benefit of
scheme for personal toilet while confirming that he has constructed
toilet on Government land in the year 2016-2017.
6. Perusal of the said affidavit shows that benefit of such
scheme was taken in the year 2018, only for the purpose of
construction and use of toilet on the Government land. However,
there is nothing to indicate that at the time of election or
thereafter, respondent no.3 continues in possession and use of such
toilet.
(4) wp-12333-2023.odt
7. Per contra, evidence on record shows that respondent no.3
has purchased a plot in the year 2017, raised construction on said
property and residing alongwith her family in private property.
The report of Government Authorities supports the case of
respondent no.3. Consequently, concurrent findings of facts
recorded negating the case of petitioner regarding encroachment of
respondent no.3 on Government land need not be disturbed.
8. In that view of the matter, there no substance in writ
petition. Hence, Writ Petition stands dismissed.
9. Rule is discharged.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
