Bombay High Court
Ashwini Arvind Shirgave vs Divisional Commissioner Pune And Ors on 22 October, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:42048
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12002 OF 2023.
Ashwini Arvind Shirgave,
Age:33 years, Occ: Household,
R/o. Mudshingi, Tal. Karver,
District: Kolhapur ...Petitioner.
Versus
1.The Divisional Commissioner, Pune
Division, Pune
2. Collector Kolhapur,
Collector Office,
3.Ramchandra @ Rama Dattu Shirgave,
Age:66 years, Occ: Agriculture,
R/o. Mudshingi, Tal. Karver,
District: Kolhapur
4. Grampanchayat Mudshingi,
Through Gramsevak,
Mudshingi, Tal. Karver,
District: Kolhapur. ...Respondent.
------------
Mr. S. R. Ganbavale i/b Mr. Ruturaj Pawar for the Petitioner.
Ms. M. S. Bane, AGP for the Respondent Nos.1 and 2.
Mr. Drupad Patil i/b Mr. Dheeraj Patil for the Respondent No.3.
Mr. Manoj A. Patil for the Respondent No.4.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 12th September, 2024.
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Pronounced on : 22nd October, 2024.
JUDGMENT :
1. By this petition, exception is taken to the order dated 8 th
September 2023 passed by Respondent No.1 in Appeal No.16 of 2023
dismissing the Appeal thereby upholding the order of Collector
disqualifying the Petitioner from the post of Sarpanch.
2. The facts required to be exposited are that the Petitioner was
elected as Sarpanch of Grampanchayat, Mudshingi on 9 th February
2021. Complaint dated 26th August 2022 was lodged with the
Grampanchayat by the Respondent No.3, who is the brother of father-
in-law of the Petitioner, contending that Survey No.444 Plot No.14
was allotted to Respondent No.3 on 10 th August 1982 in respect of
which Sanad was issued in name of Respondent No 3 and possession
panchnama was also executed. The Respondent No 3 is paying the
assessment taxes and despite thereof, in respect of the said Plot, the
name of Arvind Shirgave i.e. husband of the Petitioner has been
inserted in Village Form No.8 for Property bearing No.1798-D for
Assessment Year 2008-2012 which shows partly constructed house of
360 square feet and open area of 1155 square feet and 2145 square
feet i.e. 3660 square feet. It was stated that if the actual spot is seen,
the same is an open Plot and in the assessment there is substantial
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change. It was stated that the amount of Rs.8,95,399/- has been
shown deposited with the grampanchayat for which written
explanation should be given. The said complaint gave details of
assessment extract as under:
1½ v- dz- 3269 feGdr ua- 1805 v jatuk d".kkr f'kjxkos- jkepanz nRrq
f'kjxkos-
2½ v- dz- 3270 feGdr ua- 1805 c dqcsj nRrq f'kjxkos-
3½ v- dz- 3271 feGdr ua- 1805 d vkcklh nRrq f'kdxkos-
4½ v-dz- 3071 feGdr ua- 1798 M vjfoan dqcsj f'kjxkos- lnj vlsaVesaV
dks.kR;k BjkokP;k vk/kkjs r;kj dsyk vkgs R;kph uDdy izr feGkoh
R;kpcjkscj lnj dkyko/kh e/;s ts xkzelsod gksrs R;kaps laiq.kZ uko feGkos-
3. It was further stated that the assessment of Property No.1798-
D dated 6th October 2020 appears to have been prepared in the name
of Arvind Kuber Shirgave and on 7 th October 2022 assessment in
respect of Property bearing No.1798-B is shown to be prepared in the
name of Arvind Shirgave and sought written explanation as to how in
the respect of one person two different assessments came to be
prepared.
4. On 4th October 2022, notice came to be issued by the Collector
under Section 14 (1)(j-3) of the Maharashtra Village Panchayats Act,
1959 (for short, "Panchayats Act") to the Petitioner and the
grampanchayat calling them for hearing on 14th October 2022. On 18th
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October 2022 communication was addressed by the Deputy Collector
to the Gram Sevak intimating that the hearing was held on 14 th
October 2022 and to remain present for the hearing on 18 th
November, 2022 with the Suvey Map. Accordingly survey map was
prepared which is annexed at page 85 of the petition.
5. Vide reply dated 29th May 2023, the Petitioner contended that
the complaint filed by Respondent No.3 has not stated about the
boundaries of Plot No 14 and there is no clarity as to from which side
the encroachment is alleged to be carried out. It was contended that
the Property mentioned in the application by Respondent No.3 is not
government land but additional gavthan land and that the
information about wrong assessment by grampanchayat came to the
knowledge of the Petitioner's husband in the month of November
2020 and immediately thereafter an application was moved for
deleting the name of the Petitioner's husband from the assessment
extract. Subsequently, due to COVID-19 pandemic, the application
remained pending and on 30th June 2022, the assessment was
cancelled and the name of Petitioner's husband came to be deleted
from the Plot No.14. It was further contended that there is no
encroachment on Plot 14 and that in the encroachment list of the
year 2000-2020 name of the Petitioner's husband is not mentioned.
Gramsevak by certificate dated 10th March 2023 has certified that
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there is no noting of the name of the Petitioner's husband in respect
of additional gavthan land survey No.444 Property No.1805. The
official measurement carried out does not depict any encroachment.
The Respondent No.3 by affidavit dated 16th March 2000 had included
the name of the family members in the assessment extract and have
obtained loan on the subject Property.
6. After hearing the parties, the Collector vide order dated 16th
June 2023 allowed the application of Respondent No.3. The Collector
observed that additional gairan land survey No.444 was divided into
Plots which were allotted on 29th August 1978 and Plot No.14 was
allotted to Respondent No.3 as per the list prepared by the Sub-
Divisional officer on 11th June 1981. It further held that as per the
certificate of the gramsevak dated 10 th March 2023 there is no noting
of the name of the Petitioner's husband in respect of Survey No.444
on Property 1805-D, however, the assessment extract of 10th
September 2022 reflects the name of the Petitioner's husband. The
noting of the family members is shown from 1998 in respect of
subject Property as also the encumbrances created by the Petitioner's
father-in-law. It further held that there is special noting that survey
No.444 is government land and the same has not come in possession
of the Petitioner by accepted procedure and there has been
encroachment on the government land. It further held that the
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encroachment has to be seen on the date of filing of the nomination.
It was held that Property No.1805 is situated in survey No.444 about
which the Petitioner had knowledge and as they are not in occupation
by procedure known to law, there is encroachment. It was further
held that presently on Property bearing No.1805-D, there is no noting
but in respect of 1805-B name of the father-in-law and mother-in-law
of the Petitioner are noted. As per the measurement map prepared
by the Deputy Director of land records, the subject Property is shown
and there is encroachment on government land. The Collector
therefore disqualified the Petitioner under Section 14(1)(j-3) of the
Panchayats Act.
7. Appeal came to be filed before the Divisional Commissioner and
vide impugned order dated 8th September 2023, the Appellate
Authority held that Respondent 3 was allotted 1 Are land as per 7/12
extract and the Property No.1805-D, as per the village form showing
the Property of the Petitioner's husband, was 3660 square feet which
is in excess of 1 Are land. It further held that additional gavthan Gat
No.444 is government land and therefore the argument of the
Petitioner that the Property is part of Plot No.14 cannot be accepted.
The Appellate Authority further held that apart from the Property
which was allotted, additional area is in possession of the Petitioner's
family and therefore same amounts to encroachment on government
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land. It further held that the Petitioners have admitted the possession
of 1805-D and the same is part of Gat No.444 which has not been
allotted to Petitioner's husband or her family members and on these
findings rejected the appeal.
8. Heard Mr. S. R. Ganbavale for the Petitioner, Ms. M. S. Bane, AGP
for the Respondent Nos.1 and 2, Mr. Drupad Patil for the Respondent
No.3 and Mr. Manoj A. Patil for the Respondent No.4.
9. Mr. Ganbavale, would submit that Respondent No.3 has
adopted varying stands in different proceedings. Pointing out to the
first complaint filed with the grampanchayat on 26 th August 2022, he
submits that the complaint of Respondent No.3 was that Respondent
3 was allotted Plot No.14 out of survey No.444 and assessment
extract in respect of Property No 1798-D shows the name of
Petitioner's husband. He would further point out that the complaint
states that the assessment extract shows house admeasuring 360
feet, whereas on actual site the same is open land. He would submit
that in the dispute filed before the Collector, the Respondent No.3's
case is that survey No.444 is owned by the State Government and as
per the sanad at Sr. No.163 Plot No.14 admeasuring about 3.5 guntha
was allotted to Respondent No.3 on 10 th August 1982 and the
Petitioner's husband in collusion with the grampanchayat has
encroached into the Respondent No.3's Property allotted by the State
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Government and got prepared assessment extract. He would further
submit that the assessment extract produced by Respondent No.3
which is at page 71 shows the entire area of 1805-D as 3660 square
feet whereas the same if considered in juxta-position with the
assessment extract obtained by the Petitioner at page 106 shows that
name of the Petitioner's husband being bracketed in the assessment
extract. He therefore submits that the assessment extract produced
by Respondent No.3 to show name of the Petitioner's husband is
forged document. Pointing out to the assessment extract remark at
page No.106 which refers to Grampanchayat Resolution dated 30 th
June 2022, he submits the same is by reason of application filed in
the year 2020 for removing the name of the Petitioner's husband from
the assessment extract which was even prior to the election.
10. He would further submit that though the finding of the
Divisional Commissioner is that about 1 Guntha was allotted to
Respondent No 3, the 7/12 extract would show that it is an
approximate area. According to him, the area allotted admeasures .01
square meter. He would further submit that it has been contended by
Respondent No.3 that he has been allotted 3.5 gunthas which is
contrary to the 7/12 extract and the finding of the Divisional
Commissioner is therefore fallacious. He points out to the assessment
extract annexed at page 365 onwards for the period 2008-2012 and
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would point out that at page 367 the name of the Petitioner's
husband has been inserted in the assessment extract which is evident
from the different hand-writing and from the fact that in all the
previous pages, there are only 5 entries whereas at page 361 there
are 6 entries by inserting subsequently the name of the Petitioner's
husband. He submits that the fact that there has been interpolation is
evident as the total water charges payable in respect of previous five
entries is Rs.90/- whereas in respect of the Petitioner's husband, it is
shown as Rs.180/- and the total is shown as Rs.450/- which is total of
five entries at the rate of Rs 90/ and not six entries. He would further
submit that the total of tax amount when considered in respect of five
entries would be Rs.1,225/-, however if the name of the Petitioner's
husband's is added, the total should have been increased to
Rs.1,851/-, which is not so. He would further submit that the
documents produced have not been dealt with by the Collector or by
the Divisional Commissioner. He points out to the assessment extract
for the year 1988-1989 to 1991-1992 which shows that the Plot No.14
was initially in the name of Respondent No.3 and thereafter for the
period 1984 to 1998 is bifurcated in the name of the brothers of
Respondent 3 into three parts which was pursuant to an affidavit
filed by Respondent No.3 by including name of the brothers in the
assessment extract. He submits that there is no such Property as
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1805-D and that the Petitioner or family members have no connection
with the suit Property 1805-D. He would further point out that by
communication dated 7th May 2007, the Respondent No.3 has
transferred Property 1805-A in the name of deceased brother's
family. He submits that the Collector has held that the name of the
family member appears in the noting since the year 1998, whereas at
that time the Petitioner's husband was minor. He submits that the
Tahsildar has filed an affidavit stating that the house was partitioned
between Respondent No.3 and his brother and separate assessment
extract 1805-A to C has been issued. He submits that the Tahsildar
has stated that admittedly there is an encroachment beyond Plot
No.14 and that the encroached Property is recorded as Property
No.1805-D when the assessment extract does not state the same. He
submits that there is no notice of encroachment issued to the
Petitioner's husband. He submits that it is consistent case of
Respondent No.3 that the Property which has been allotted is 3.5
gunthas and points out that even before the Apex Court in SLP filed
the Respondent No 3, the case is that Plot No. 14 admeasuring 3.5
gunths was allotted to the Respondent No 3. In support, he relies
upon the following decisions:
1. Ravi Yashwant Bhoir vs. District Collector, Raigad and
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Ors.,1
2. Yunus Shah Anwar Shah vs. Additional Commissioner,
Amravati and Ors., 2
3. Vijay Shrawan Shende and Ors. vs. State of Maharashtra
and Ors.,3
4. Laxman Shrikrushna Jadhav vs. Tanaji Nana Ghodke,4
5. Yogesh Shriram Solanke vs. Divisional Commissioner,5
6. Kisan Laxman Navale vs. State of Maharashtra,6
7. Dattatray Sarjerao Shinde vs. Additional Commissioner,
Pune and Ors.,7
8. Savita Premdas Jadhav vs. The Divisional Commissioner,8
9. Union of India and Ors. vs. N. Murugesan and Ors., 9
10. Pratibha Sanjay Hulle vs. Additional Collector, Latur and
Ors.,10
11. Per contra, Mr. Patil learned counsel appearing for Respondent
No.3 would submit that the decision relied upon by learned counsel
for the Petitioner in the case of Pratibha Sanjay Hulle vs. Additional
Collector (supra) was in respect of disqualification under Section 76
1 (2012) 4 Supreme Court Cases 407;
2 2011(5) Mh. L. J. 249;
3 2009 (5) Mh. L. J. 279;
4 AIRONLINE 2023 Bom 1703;
5 AIRONLINE 2023 Bom 1703;
9 (2022) Supreme Court Cases 25
10 2010 (5) Mh. L. J.
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of the Panchayats Act. He submits that as far as Plot No.14 is
concerned the same was partitioned between Respondent No 3 and
his two brothers and was divided into 14a, 14b and 14c which was
thereafter numbered as 1793-A to 1793-C which was again
renumbered as 1798-A to 1798-C and only in the year 2010 came to be
numbered as 1805-A to 1805-C. He submits that as per the
assessment extract of the said three Plots, the area aggregates about
360 square feet each plus open space and houses which is within one
guntha which was allotted to Respondent No.3. He submits that in
the year 2020, application was made by the Petitioner's husband to
remove his name from the assessment record by showing it to be part
of Plot No.14(D). He submits that though application was sought to be
pressed to show deletion sought, subsequently assessment charges
have been paid by Petitioner's husband which is for the year 2010,
2011, 2015, 2016, 2021 and 2022 which are at pages 244 to 246 in
respect of Property No.1805-D and therefore it is evident that there
is an existence of Property bearing 1805-D which is in possession of
the Petitioner's husband in respect of which taxes were paid. He
submits that as the Property allotted to Respondent No.3 comprising
one guntha was divided into three parts allotted to Respondent No.3
and his brothers, it is evident that 1805-D is an encroached portion of
survey No.444. He would further submit that the tax receipts shows
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Property bearing No.1805-D and therefore there is no question of
assessments not tallying as the receipts had been issued for payment
of assessment tax. He would further point out that in Village form
No.8 for the assessment year 2008-2012, Property 1798-D is shown in
the name of the Petitioner's husband which is admeasuring about
3600 square feet which area is mentioned in the assessment book for
the year 2015- 2016 to 2018-2019. He would further point out that the
said fact has been taken into consideration by the Divisional
Commissioner by holding that if Plot of land which was allotted
to Petitioner was about one guntha, the assessment records of
1805-D which shows the area of 3600 square feet is admittedly
exceeding the area of one guntha existing and therefore
encroachment.
12. In rejoinder, Mr. Ganbavle would submit that in the first
complaint filed by Respondent No.3 in the year 2022, it is stated that
assessment for the year 2008- 2012 shows the name of the
Petitioner's husband in respect of Property 1798-D. He submits that in
2010 when the Property was not numbered as 1805-D but was 1798-
D, then the receipts issued in respect of tax assessment for the year
2010-2011 will not show the Property as 1805-D which is at page 246.
He therefore submits that receipts which are produced on the record
are forged. He would further point out that even in Village Form No.8
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which is for 2008-2012, the Property number is shown as 1798-D
which was therefore not numbered as 1805-D in the year 2010-2011
and therefore the tax receipts are apparently forged. He would
further point out that in Village form No.8 produced by Respondent
No.3 to show the Petitioner's husband's name in Property 1805-D,
the house is shown to have been constructed in the year 1992 when
the Petitioner's husband was about 8 years of age and it is therefore
clear that there has been tampering with official records. He would
further point out that the tax receipts produced on record is issued in
joint names of the Petitioner's husband and Petitioner. He submits
that the same could not have been done as the assessment extract
shows only the name of the Petitioner and therefore there is no
question of tax receipts being issued in the name of Petitioner as well.
13. Considered the submissions and perused the record.
14. If the order of Collector dated 16 th June, 2023 is perused, the
Collector disqualifies the Petitioner on the ground of encroachment
of Plot No 14 based on the assessment records of Property No 1805-
D. It finds that the notings of the Petitioner's family members is since
the year 1998 and that Gat NO 1805-B is in the name of the father in
law and mother in law of the Petitioner.
15. The Appellate Authority accepts the encroachment on Gat NO
444 by noting that the Respondent No.3 was allotted area
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admeasuring 1 Are as per 7/12 extract and as per the assessment
extracts, the area of Property No 1805-D is admeasuring 3660 square
feet, which is admitted to be in possession of the Petitioner's
husband. By noting that Gat No 444 is government land and the area
of the Plot allotted and the area in possession of the Petitioner's
husband does not tally, the Appellate Authority has dismissed the
Appeal.
16. As far as Gat No 1805-B is concerned, the same is not an issue
as admittedly the Plot allotted to the Respondent No 3 was divided
into three parts between the Respondent No 3 and his brothers.
17. The disqualification of the Petitioner has been ordered on the
ground of encroachment by the Petitioner's husband on government
land based on the assessment extract showing Property No1805-D in
the name of Petitioner's husband as on 10 th September, 2022. In the
first complaint lodged by the Respondent No 3 on 26 th August, 2022,
the Respondent No.3 contends that in respect of the allotted Plot No.
14, Village Form 8- assessment record of Property 1798-D for the
assessment year 2008-2012 shows name of the Petitioner's husband.
It is the Respondent No 3's case that the Plot is an open Plot and
despite thereof, the assessment extract shows half constructed house
of 360 square feet and balance area as open space. In the Gram
Panchayat dispute, the Respondent No.3 states that the Plot allotted
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to him is 3.5 gunthas and in that Plot No 14, the Petitioner's husband
has colluded with the Gramsevak and got the assessment records
prepared and encroached upon the Plot allotted to the Respondent
No. 3.
18. The allegation of the Respondent No.3 thus was of
encroachment by the Petitioner's husband upon the Plot allotted to
him. At the threshold considering the complaint, there was no
question of application of Section 14(1)(j-3) which speaks of
encroachment on government land. Although the 7/12 extract shows
that the land allotted to Respondent No.3 is about 1 guntha, in the
Grampanchayat Dispute filed before the Collector Respondent No.3
has stated that he has been allotted 3.5gunthas. Similarly in the SLP
which was filed before the Apex Court, in the synopsis, it has been
stated that Respondent No.3 in the year 1982 has been allotted 3.5
gunthas. Once the government land had been allotted to the
Respondent No 3, the character of the land changes being in hands of
private person and encroachment, if any, has to be removed by
adopting appropriate civil remedy. The Appellate Authority has held
that the Respondent No.3 was allotted 1 Are whereas the Respondent
No.3 himself claims to have been allotted 3.5 gunthas. Going by the
Respondent No.3's own contentions, the impugned order of Appellate
Authority is rendered vulnerable.
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19. Without noticing the contents of the complaint, the authorities
have held that there is encroachment on government land by
considering assessment records of Property No 1805-D. There
appears to be considerable dispute about the assessment extract of
Property No 1805-D. In this context, if we see the assessment extract
certified by gramvikas adhikari and produced before the appellate
authority, the assessment extract is for the year 2008-2012. As per
assessment book, the Petitioner's husband name is at Serial No.3071
in respect of Property No.1798-D. It is evident to the naked eye that
the handwriting as regards the said Serial number differs from the
handwriting of previous serial numbers. Mr. Ganabavale is also right in
pointing out that water charges in respect of first five items of the
same page is shown at Rs.90/- and therefore total of the five items
when multiplied with Rs 90/ is shown at Rs.450/-, whereas, against
the name of Petitioner's husband the water charges is shown as
Rs.180/- and if the same is added the total should be Rs.630/- and not
Rs.450/-. Similarly , the assessment tax in respect of other 5
properties when added amounts to Rs.1,225/- and if the Petitioner's
husband's tax would be added it would be Rs.1,851/-.
20. The interpolation by way of subsequent insertion of the name
of the Petitioner's husband is evident from the following:
(a) The water tax and Property tax of the previous five entries when
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added, the total noted is correct. If the water tax and Property tax
recorded in the name of the Petitioner's husband is added with the
other notings, the same would exceed the total noted.
(b) On every previous page of assessment book, there are only five
entries, whereas the page, noting the name of the Petitioner's
husband has six entries.
(c) To the naked eye, it is clear that the handwriting in respect of
notings of the Petitioner's husband is different from the handwriting
of the same page.
21. It is therefore evident that the name of the Petitioner's
husband has been inserted later in the assessment extract for the year
2008-2012. Assessment Extract shows that for the year 2008-2012 the
Property was numbered as 1798-D whereas reliance placed by Mr.
Patil on tax payment receipts at Page 244 to 246 of the Petition to
show that the Property tax has been paid by the Petitioner's husband,
would show that for the year 2010-2011 the tax receipt shows the
Property number as 1805-D. If the assessment extract of year 2008-
2012 shows the Property numbered as 1798 -D,the tax receipts for the
same Property of year 2010-2011 could not be issued for Property
No.1805-D.
22. Mr. Ganbavale has also rightly pointed out that the tax receipts
have been issued in name of Petitioner and her husband jointly, which
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could not be done, as the assessment extract is only in name of
Petitioner's husband. It is therefore evident that the tax receipts
which has been produced are forged receipts and have been
fabricated only for the purpose of showing the Petitioner's husband's
possession and occupation of Property No.1805-D. The existence of
Property No.1805-D is thus doubtful. Even the survey map does not
indicate existence of Property No.1805-D. The substratum of the
complaint is encroachment by Petitioner's husband by showing
assessment extract of Property 1805-D, which are forged and
fabricated. Further there is also dispute about area of Plot No.14
allotted to Respondent No.3 as he claims to have been allotted 3.5
gunthas and if that is accepted and assuming arguendo that
Petitioner's husband is in possession of Property No.1805-D in Plot
No.14, the same would not be an encroachment. Considering the
records, there is no clear cut case of encroachment made out.
23. It is not disputed that Plot No.14 was allotted to Respondent
No.3, which was thereafter divided into three parts between
Respondent No.3 and his two brothers. In the year 2020 even before
the elections were contested by the Petitioner, the Petitioner's
husband had addressed communication to the gramvikas adhikari for
deletion of his name from Plot No.14 from the assessment book.
There is no dispute that land bearing survey No.444 is government
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land. What has been allotted to Respondent No.3 as evident from
7/12 extract is land admeasuring 1 guntha and the Property has
thereafter been divided between Respondent No.3 and his brother
which shows the area from the assessment extract to be around one
guntha. Although it is sought to be contended by Mr. Ganbavale that
what has been allotted is 1 square meter, the same is not acceptable
upon reading of the 7/12 extract with the assessment records of the
grampanchayat. It is therefore clear that as far as Plot No.14 is
concerned the same is about 1 guntha.
24. Coming back to the Village form No.8, which shows the
construction of the house admeasuring of about 360 square feet, the
construction is shown of the year 1992, whereas, at that time the
Petitioner's husband was about 8 years of age. In addition to that, it is
Respondent No.3's own contention in the first complaint filed on 26 th
August, 2022, that although assessment shows construction of house,
the entire land is an open space.
25. The Collector, without taking into consideration the documents
produced on record which showed clear dispute as regards the
Property 1805-D and the evident interpolation in the assessment
records for the year 2008-2012 showing the name of Petitioner's
husband in respect of Property 1798-D demonstrating no connect of
Petitioner's husband with the alleged Property No.1805-D, has
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ordered the disqualification. What was required to be considered is
whether there is material on record to demonstrate that there has
been an actual possession and occupation of Property 1805-D by the
Petitioner's husband which is an encroachment on government land.
26. The measurement map which was directed to be produced
does not refer to 1805-D and merely refers to the boundary marks of
Plot No. 14. Apart from the alleged assessment records which cannot
be relied upon, there was nothing to demonstrate that Property
bearing 1805-D was government land in the occupation and
possession of the Petitioner's husband and that Petitioner continued
to be the beneficiary of the encroachment.
27. The Collector's order though refers to the report of the
Gramsevak dated 10th March 2023 that the name of the Petitioner's
husband is not recorded in respect of 1805-D, relies upon the
assessment extract of 10th September 2022 showing the name of the
Petitioner's husband. That is without noticing that the subsequent
assessment extract of 7th October 2022 showing the name of the
Petitioner's husband bracketed in respect of Property 1805-D by
virtue of grampanchayat resolution dated 30th June 2022.
28. The Collector has held that the Petitioner's family's name is
noted since the year 1998 when the Petitioner's husband was minor
and it is nobody's case that Petitioner's father-in-law was earlier the
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encroacher and thereafter the encroachment continued. Both the
authorities failed to notice that the assessment extract of the year
2008-2012 was clearly a fabricated document by inserting the name of
Petitioner's husband which did not tally with the figures appearing in
the assessment extract. The Divisional Commissioner has factually
erred in holding that the Petitioner has accepted that Plot No.1805-D
is in her possession which has been throughout disputed by Petitioner
stating that they have no connection with 1805-D.
29. Mr. Ganbavale has rightly relied on the decision in the case of
Ravi Yashwant Bhoir (supra) where the Apex Court has held in
paragraphs 34 and 35 as under:
34. In a democratic institution, like ours, the incumbent is
entitled to hold the office for the term for which he has been
elected unless his election is set aside by a prescribed procedure
known to law or he is removed by the procedure established
under law. The proceedings for removal must satisfy the
requirement of natural justice and the decision must show that
the authority has applied its mind to the allegations made and
the explanation furnished by the elected office bearer sought to
be removed.
35. The elected official is accountable to its electorate because
he is being elected by a large number of voters. His removal has
serious repercussions as he is removed from the post and
declared disqualified to contest the elections for a further
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stipulated period, but it also takes away the right of the people
of his constituency to be represented by him. Undoubtedly, the
right to hold such a post is statutory and no person can claim
any absolute or vested right to the post, but he cannot be
removed without strictly adhering to the provisions provided by
the legislature for his removal."
30. In the case of Kisan Laxman Navale (supra) learned Single
Judge of this Court has held that there has to be first a finding of
encroachment and thereafter the question will come whether the
encroachment is made by any member of the family which could make
the member elected disqualified. Said judgment is squarely applicable
in the present case as there can be no finding of encroachment by the
Petitioner's husband. In the case of Kisan Navale (supra) the issue
was as regards the encroachment on gairan land and it has been held
that encroachment has to be proved and the encroacher has to be
shown in continued occupation of the premises and a clear cut case
has to be made out for seeking disqualification.
31. In case of Manisha Ravindra Panpatil vs The State of
Maharashtra11, the Apex Court in context of disqualification of
woman Sarpanch has held that in matter of removal of an elected
public representative should not be treated so lightly, especially when
it concerns women belonging to rural areas. The Apex Court held that
11 Civil Appeal No 10913 of 2024
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it must be acknowledged that these women who succeed in occupying
such public offices, do so only after significant struggle. The Apex
Court struck a note of caution that the concerned authorities need to
sensitize themselves and work towards creating a more congenial
atmosphere where women, such as the appellant, can prove their
worth by rendering their services as Sarpanch of the Grampanchayat.
32. In the present case, I do not find that there can be any finding as
regards the encroachment by the Petitioner or the family members.
The records do not show that Petitioner is in continued occupation of
the Property stated to be an encroachment on government land. In
the assessment extracts of said Property No 1805-D, the name of
Petitioner's husband is evidently inserted subsequently. A clearcut
case must be made out that the Property bearing No.1805-D was an
encroachment on Survey No.444, which encroachment has been at the
hands of the Petitioner's family members and which continued to be
in the enjoyment of the Petitioner. From the material which has come
on record, I do not find any such case being made out. It is indeed
unfortunate that the allegations have been levied by the brother of
the Petitioner's father in law, who instead of appreciating the
accomplishment of the Petitioner, has made a concerted effort to
ensure that the Petitioner does not continue as the Sarpanch of the
Grampanchayat.
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33. In light of the discussion above, the impugned order dated 8 th
September, 2023 passed by Respondent No 1 in Appeal No 16 of 2023
is hereby quashed and set aside. Resultantly, the Appeal No 16 of
2023 stands allowed.
34. Petition succeeds. Rule is made absolute. In view of disposal of
petition, Interim/Civil Applications, if any, do not survive for
consideration and stand disposed of.
[Sharmila U. Deshmukh, J.]
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Signed by: Rajeshwari S. Karve
Designation: PA To Honourable Judge
Date: 22/10/2024 18:19:27
