Bombay High Court
Sindhubai Dadasaheb Shinde vs The Additional Divisional ... on 3 May, 2024
2024:BHC-AUG:9749
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3630 OF 2024
Sindhubai w/o. Dadasaheb Shinde,
Age 60 years, Occu. Sarpanch,
R/o. At Murma, Post Pachod,
Taluka Paithan, District Aurangabad .. Petitioner
(Original Applicant)
Versus
1. The Additional Divisional Commissioner-2,
Aurangabad
2. The District Collector,
Aurangabad, District Aurangabad
3. The Village Development Officer,
Grampanchayat Murma,
Taluka Paithan, District Aurangabad
4. Gopichand s/o. Dagadu Aher,
Age 42 yiears, Occu. Social Worker,
R/o. At Murma, Post Pachod, Taluka Paithan,
District Aurangabad .. Respondents
(Original Respondents)
Mr. R. V. Gore, Advocate for the Petitioner;
Mr. P. D. Patil, A.G.P. for Respondents No.1 and 2;
Mr. V. H. Pathade, Advocate for Respondent No.3;
Mr. Y. V. Kakade, Advocate holding for Mr. S. A. Nandure, Advocate
for Respondent No.4
CORAM : S. G. MEHARE, J.
DATE : 03-05-2024
PER COURT :-
1. Heard the learned counsel for the petitioner, the learned
A.G.P. for respondents No.1 and 2 and the learned counsels for
respondents No.3 and 4.
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2. The petitioner was elected as Member of Village Panchayat,
Murma on 15.12.2020. Respondent No.4 had filed a complaint
under Section 14(1)(j-3) and 16 of the Maharashtra Village
Panchayats Act, 1959 (for short, "the Act") to respondent No.2 /
the Collector alleging that the petitioner's husband has
encroached upon the Government land bearing Gut No.251 and
237 of the village and she was residing with her husband in the
said house property.
3. Respondent No.2 directed to make inquiry. The concerned
Officer made inquiry. The Tahsildar, Paithan referred to the inquiry
made by Gramsevak, who had opined that at this juncture in
Village Panchayat record, there is no name of the petitioner and
her husband showing possession of Government land. In other
words, it has been contended that presently the record of Village
Panchayat does not show that the petitioner and her husband are
possessing the Government property.
4. The petitioner was served with notice. She appeared before
respondent No.2/the Collector. However, she did not file her
written statement. Since she failed to conduct the proceeding,
respondent No.2, by order dated 01.01.2024, allowed the
application filed by respondent No.4 and declared the petitioner to
be disqualified to continue as a Member of Village Panchayat,
under Section 14(1)(J)(3) and 16 of the Act.
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5. Against the said order, the petitioner preferred an appeal
before respondent No.1/ Additional Commissioner-2, Aurangabad.
Respondent No.1 also believed the material placed on record and
dismissed her appeal.
6. The bone of contention of the petitioner is that after the spot
inspection was done, respondent No.2/the Collector did not issue
her a fresh notice. Her husband was attending the proceeding.
However, he died during pendency of the case before respondent
No.2. Therefore, no opportunity has been granted to the petitioner
to rebut the allegations levelled against her.
7. Referring to the report of the Gramsevak and the Tahsildar,
learned counsel for the petitioner submits that at the relevant
time, there was no encroachment on the Government land. One
document of 2000 in which the name of husband of the petitioner
was shown as possessor of the Government land was produced.
He submits that a new document i.e. sale deed of the house
property No.249 was placed first time before respondent No.1.
She had no opportunity to rebut the validity of that document. It
may be a created document. The inquiry under Sections 14(1)(j-3)
and 16 of the Act, is a summary inquiry. In a summary inquiry, the
legality and validity of such document cannot be adjudicated. He
lastly submits that both judgments are against the law and not
following the principle of natural justice; hence, liable to set aside.
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8. Learned counsel for respondent No.4 submits that the
learned counsel for the petitioner has not read the report
completely. In the report of the Circle Officer addressed to
Tahsildar, it has been specifically mentioned that Online Namuna-8
and the tax assessment register for the property No.251 was
produced. The Government was the owner of that property and
the husband of the petitioner was possessing that property. That
was the evidence against the petitioner. He also referred to the
Gram Panchayat's record and submits that it clearly establish that
there was an encroachment on the Government land. The
husband of the petitioner created the document/agreement to
evade her disqualification. This document has been created after
the election of the petitioner as a Member. Sufficient opportunity
was granted to the petitioner, but she voluntarily did not file
written statement. Once the notice is served, there is no provision
to issue notice again and again to the parties. It is the party to
appear before the authority on each date. He also submitted that
the petitioner did not produce evidence in rebuttal showing that
she is not residing on the disputed property. Therefore, an adverse
inference may be drawn.
9. In reply, the learned counsel for the petitioner submits that
there was no evidence, whether the petitioner was sharing the
Government property with her husband. Therefore, the view in the
case of Janabai Rathod would not be helpful.
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10. Perused the papers placed on record.
11. The Grampanchayat maintained the record of the properties
and also the record of possessors of the properties for the purpose
of assessing the tax. Namuna-8 of house property No.251 issued
on 28.08.2023 clearly shows that the husband of the petitioner
was in possession of the Government land. This was the
possession of 2023.
12. So far as house property No.237 is concerned, the village
panchayat's record/Namuna-8 shows that it was the Government
property and possessed by the deceased husband of the
petitioner. That apart, one another Namuna-8 about house No.251
shows that one Siddheshwar Manohar Gore was the possessor of
said property. The document of sale deed/agreement was
executed by the husband of the petitioner in favour of
Siddheshwar, who was admittedly his son-in-law. This document
dated 26.12.2022 is apparently after the election of the petitioner
as a Member of Village Panchayat. In the report of Gramsevak, he
simply said that on the day of inspection, the Village Panchayat
has no record showing that the petitioner or her husband was
possessing the Government land. However, the document placed
on record clearly indicates that he had encroached upon the
Government land and with ill intention, probably to evade the
disqualification, executed sale deed/agreement, dated 26.12.2022
in favour of son-in-law, transferring the house property which is
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owned by the Government.
13. Learned counsel for respondent No.4 was right in submitting
that the private party has no right to sell or transfer the
Government land.
14. Law does not provide for inviting the litigant again and again
by issuance of notice by the authority. Therefore, there is no
substance in the submission of the learned counsel for the
petitioner that after inspection of spot, respondent No.2/Collector
did not issue her a fresh notice. It seems that her deceased
husband was attending the proceeding. Probably, he may be
acting as a proxy member of the Village Panchayat for and on
behalf of his wife. It is presumed, unless contrary is proved, that
husband and wife resides under one roof. The petitioner did not
produce the evidence in rebuttal that she never shared the house
property with husband and she was residing at another place
which was not the Government land.
15. Considering the facts of the case and the relevant provisions
of law, the Court is of the view that there is no error of law in the
findings and the impugned judgments and orders. The petition
being devoid of substance stands dismissed.
16. No order as to costs.
( S. G. MEHARE, J. )
rrd
