Bombay High Court
Sanjay Shivaji Patil Jharekar vs The State Of Maharashtra Throu. Sec. And ... on 28 January, 2025
2025:BHC-AS:4805
Sonali Mane 904-WP-6111-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6111 OF 2024
Sanjay Shivaji Patil Jharekar ... Petitioner
Versus
The State of Maharashtra
Thr. Secretary & Ors. ... Respondents
Mr. Abhijeet A. Desai a/w Mr. Omkar Ganganmale, Mr. Karan Gajva
a/w Ms. Sanchita Sontakke, Mr. Vijay Singh, Ms. Mohini Rehpade, Ms.
Daksha Purghera & Mr. Digvijay Kachare for the Petitioner.
Ms. Dhruti Kapadia, AGP for Respondent Nos. 1 to 3/State.
Mr. Anilkumar Patil a/w Mr. Sachin M. Bhavar, Ms. Zeel Jain & Mr.
Digvijay A. Patil for Respondent No.5.
Ms. Priyanka Chavan, for Respondent No.4.
CORAM : SANDEEP V. MARNE, J.
DATE : 28 JANUARY 2025.
ORAL JUDGMENT :-
1) The Petition challenges order dated 28 February 2024
passed by the Additional Divisional Commissioner, Pune dismissing
Appeal preferred by the Petitioner and confirming the order dated
22 September 2023 passed by the Collector, Solapur thereby disqualifying
him from acting as member of Gram Panchayat of Village Mahud, Taluka
Sangola, District Solapur under provisions of Section 14(1)(j-3) of the
Maharashtra Village Panchayats Act, 1959 (Village Panchayats Act).
Digitally
signed by
MANE
MANE SONALI
SONALI DILIP
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DILIP Date:
2025.01.31
11:05:58
+0530
28 January 2025
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2) Petitioner was elected as a Member of Gram Panchayat
Mahud, Taluka Sangola, District Solapur in the election held on
18 January 2021. A complaint was filed against him seeking his
disqualification by Respondent No.5 alleging that Petitioner has
encroached upon government land and attracted disqualification under
provisions of Section 14(1)(j-3) of the Village Panchayats Act. In support of
his defence, Petitioner relied upon resolution adopted by the Village
Panchayat on 26 June 2019 and contended that the land in question was
allotted to him by the Panchayat. He also relied upon Rent Agreement
dated 1 July 2019 executed in his favour by the Village Panchayat. He also
relied upon assessment receipts issued by the Gram Panchayat as well as
Form No. 9 recording his name as possessor of the land and the structure.
The Collector however passed order dated 22 September 2023 disqualifying
the Petitioner from acting as a member of Village Panchayat by holding
that he has encroached upon government land under Section 14(1)(j-3) of
the Act. Petitioner's Appeal has been dismissed by the Additional
Divisional Commissioner by order dated 28 February 2024 and accordingly
he has filed the present Petition challenging the orders dated
22 September 2023 and 28 February 2024.
3) Mr. Desai, the learned counsel appearing for the Petitioner
would submit that since the Petitioner is an allottee of land in question
allotted in his name by the Gram Panchayat, he cannot be termed as an
encroacher within the meaning of Section 14(1)(j-3) of the Act. He would
submit that the Gram Panchayat adopted a resolution in meeting held on
19 June 2019 thereby allotting the land in his name. That the said
resolution was given effect by entering the name of the Petitioner in Form
No.9 in relation to House Property No. 3513 by referring to the resolution
dated 26 June 2019 and by incorporating his name in the 'occupier'
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column. He would submit that additionally, Gram Panchayat also executed
Rent Agreement in favour of Petitioner on 1 July 2019. He would submit
that in pursuance of the resolution so adopted and the agreement so
executed, Petitioner has duly paid the assessment to the Gram Panchayat
from time to time. That therefore occupation of the land and structure by
him is with the active consent of the Gram Panchayat and that therefore
Petitioner cannot be termed as an encroacher within the meaning of
Section 14(1)(j-3) of the Act. In support of his contention, Mr. Desai would
rely upon order passed by this Court, Bench at Aurangabad in Harku S/o.
Kisan Magar Vs. The Divisional Commissioner Nashik Division
Nashik & Ors.1 In support of his contention that a person remaining in
possession on expiry of lease remains in juridical possession and therefore
cannot be branded as an encroacher, Mr. Desai would rely upon judgment
of this Court, Bench at Aurangabad in Gram Panchayat, Aurala & Anr.
Vs. Kailas Rangnath Vare2.
4) Mr. Desai would further submit that all the authorities have
construed the resolution dated 26 June 2019 as allotting the land in favour
of the Petitioner. In this regard he would rely upon the report of Deputy
Superintendent Land Records, Sangola reflecting allotment land by virtue
of Resolution dated 26 June 2019. He would rely upon provisions of Section
37 of the Village Panchayat Act in support of his contention that the
Panchayat did not adopt a resolution rescinding the Resolution dated
26 June 2019 and that therefore allotment in the land in the name of the
Petitioner remains valid. Lastly, Mr. Desai would contend that
disqualification under provisions of Section 14(1)(j-3) results in unseating
of democratically elected candidate and therefore such disqualification
cannot be resorted to unless a conclusive finding is recorded that the
1 Writ Petition No. 1340 of 2023 decided on 13 February 2024
2 Civil Revision Application No. 186 of 2015 decided on 8 August 2023
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Member has actually encroached upon government land. That in the
present case, since Gram Panchayat has consented to occupation of the
land by the Petitioner, he cannot be treated as an encroacher within the
meaning of Section 14(1)(j-3) of the Act. He would therefore pray for
setting aside the orders passed by the Collector and the Divisional
Commissioner.
5) The Petition is opposed by Ms. Kapadia, the learned AGP
appearing for Respondent - State. She would submit that the Collector has
rightly interpreted the Resolution dated 26 June 2019 to mean mere
mutation of name of the Petitioner in the records of Gram Panchayat as
occupier and that the said resolution does not mean that the land has
actually been allotted in his name. She would refer to the affidavit filed on
behalf of the Respondent-State to buttress her contention that the
Petitioner is ultimately held to be an encroacher on government land.
6) Mr. Patil, the learned counsel appearing for Respondent No.
5-Complainant would also oppose the Petition. He would submit that
under provisions of Section 56 of the Village Panchayat Act, prior sanction
of Chief Executive Officer is necessary for disposal of any property of
Panchayat in any manner. That the Gram Panchayat has neither resolved
nor could have resolved to allot land in favour of Petitioner in absence of
previous sanction of the Chief Executive Officer. He would submit that
concurrent findings recorded by the Collector and the Divisional
Commissioner do not warrant interference in extraordinary jurisdiction of
this Court under Article 227 of the Constitution of India. He would pray for
dismissal of the Petition.
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7) Rival contentions of the parties now fall for my
consideration.
8) There is no dispute to the position that the Petitioner
actually possesses and occupies the land together with structure standing
thereon, which has been numbered as House Property No. 3513 in the
records of Gram Panchayat. There is also no dispute to the position that
the concerned land where the structure (patra shed) is erected, belongs to
the Gram Panchayat. When the Petitioner was accused of encroaching
upon the land belonging to Gram Panchayat, he relied upon resolution
adopted in the meeting of the Gram Panchayat held on 26 June 2019. In
that meeting, the Gram Panchayat adopted Resolution No. 254(2) as under:
वि षय नं ६ (२) :- भोग टा सदरी नोंदी करणेबाबत
ठरा नं २५४(२) :- मौजे महूद बु" येथील पशु ैद्दविकय द ाखाना समोरील जागेमध्ये (१) वि क्रम
वि लास पाटील यांचे ना भोग टा सदरी १७ +४० पत्राशेड (२) वि लास नारायण पाटील यांचे मौजे
१७ +४० पत्राशेड(३) देवि दास भग ान गोपूने यांचे मौजे १७ +४० पत्राशेड महूद बु" चौकालगत
संजय शिश ाजी पाटील यांचे मौजे ३०+६० पत्राशेड नोंदणी करीता रीलप्रमाणे १ ते ८ अज6 प्राप्त
झालेले असून सदर अजा6 र चचा6 केली असता सदर अज6 मंजूर करणेत येत असून भोग टा सदरी
नोंद करण्यात या ी असे ठरले त्यास विह मला मंजुरी देणे नसून केल्याचे ठरले.
9) Careful perusal of the above resolution would indicate that
the subject of the resolution was 'recording of names against column
occupier'. The agenda for the meeting was not for allotment of Gram
Panchayat land in favour of any person, but the agenda was only for
considering the applications preferred by the occupiers of few structures in
the 'occupier column' in the Gram Panchayat records. It appears that in
addition to the Petitioner, some other persons had also preferred
applications for recording of their names in 'occupier column' of Gram
Panchayat records. The Gram Panchayat discussed the issue and resolved
to enter their names in the 'occupier column' of Gram Panchayat record.
Thus, all that is done by way of Resolution No. 254(2) adopted in the
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meeting held on 26 June 2019 was to merely record names of occupiers of
structure in the assessment records of the Gram Panchayat. Petitioner has
erroneously misconstrued the Resolution No. 254(2) to mean as if the
Gram Panchayat has allotted its land in his favour for use or occupation
thereof. The fact that Petitioner's application was for mutation of his name
in the assessment records would itself mean that he was already occupying
the land and the structure and all that he wanted was to add his name in
the assessment records of Gram Panchayat as he was occupier of the
structure. Thus, Petitioner was occupying the land and the structure much
prior to adoption of Resolution No. 254(2). The resolution by itself did not
allot any portion of land in the name of the Petitioner. It merely accepted
the request for entering the name of the Petitioner in the Gram Panchayat
assessment records as occupier thereof.
10) It appears that the Resolution No. 254(2) adopted on
26 June 2019 was given effect to by issuance of Form No. 9, which shows
that Petitioners name was reflected against House Property No. 3513
comprising of (patra shed) admeasuring 30 x 60 by showing the year of
construction as 2019 and area of land as 167.22 sq.ft. The Gram Panchayat
accordingly made the assessment and levied tax of Rs.1589/- from the
Petitioner. Thus, adoption of Resolution No. 254(2) dated 26 June 2019 was
only for the purpose of ensuring that the Gram Panchayat recovers
assessment tax from the Petitioner as per his own request. The resolution
can neither be read to mean either allotment of land or regularization of
occupation thereof by the Petitioner. Petitioner applied to the Gram
Panchayat by showing willingness to pay taxes in respect of the structure
illegally adopted by him and the Gram Panchayat merely allowed him to
pay taxes in respect thereof. Such an Act on the part of Gram Panchayat
cannot be construed to mean as if Gram Panchayat permitted him to
occupy the land in question.
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11) Petitioner has relied upon Rent Agreement dated 1 July
2019 shown to have been executed by the Gram Panchayat, by which he
was allowed to occupy land admeasuring 30 x 60 for 11 months for
business by erection of temporary patra shed. The agreement refers to
Resolution No. 254(2) dated 26 June 2019. Carful perusal of the said
document would indicate that the same is in the nature of self-declaration
made by the Petitioner and reads thus:
कारणे करारनामा लिलहून देतो की, मी संजय शिश ाजी पाटील रा. महुद बु।। ग्रामपंचायत महुद बु।।
हदद्दीतील गा ठाण मधील खुली जागा मालमत्ता क. ३५१३ ग्रामपंचायत मासिसक सभा ठरा क.
२५४(२) विदनांक २६/०६/२०१९ अन् ये ण6 न ३० x ६० ही ११ मविहनेच्या भाडेकर तत् ा र
व्य सायासाठी ापरण्यास घेतली आहे.
सदर जागेमध्ये मी तात्पुरत्या स् रूपाचे पत्राशेड उभारणी करून ापर करीत आहे. यामध्ये ीज,
पाणी या सुवि धा मी स् खचा6ने घेत आहे. ग्रामपंचायतीने विनश्चिNत केले ले रेश्चिडरेकनर दराप्रमाणे ार्षिषक
मुल्य/कर ेळो ेळी भरण्यास मी तयार आहे. या जागेमध्ये मी पक्के बांधकाम करणार नाही. तसेच
जागेचे कसलाही गैर ापर करणार नाही. ग्रामपंचायतीस गरज भासल्यास ग्रामपंचायतीचे ले खी पत्र
आल्यास मी माझे साविहत्य स् खचा6ने काढू न घे ून जागा परत करण्यास तयार आहे.
हा करारनामा सिलहून विदला/घेतला असे.
12) This does not appear to be a contract between two
contracting parties and the document is in the nature of self-declaration
made by the Petitioner. True it is that the document reflects signatures of
Sarpanch and Gram Vikas Adhikari towards the end of the document, but
the language employed in the document makes it a self-declaration, rather
than a contract of rent/license. By that document, Petitioner has declared
that he has taken over possession of vacant land bearing No. 3513 in
pursuance of Resolution No. 254(2) adopted on 26 June 2019 for a period of
11 months and that he has constructed a temporary tin shed and is
occupying the same. He undertook to pay Gram Panchayat assessment
taxes and not to carry out any permanent construction and also to remove
himself from the land as and when informed to do so by Gram Panchayat.
Firstly, it is highly doubtful as to whether the said document can really be
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treated as a Rent Agreement as sought to be construed by the Petitioner.
Even if the said document is construed as Rent Agreement, the same could
not have been executed by Gram Panchayat in view of specific provisions of
Section 56 of the Village Panchayat Act, which provides thus:
56. Property of panchayat.
(1) It shall be competent for a Zilla Parishad from time to time to direct
that any property vesting in it shall vest in a panchayat and on such
direction being issued, the property shall, subject to rules made in that
behalf, vest] in the panchayat notwithstanding anything contained in the
Transfer of Property Act, 1882, or the Indian Registration Act, 1908:
Provided that no lease, sale or other transfer of any such immovable
property by the panchayat shall be valid without the previous sanction of
the Chief Executive Officer
(2) Every work constructed by a panchayat out of the village fund, or with
Government assistance or peoples', participation shall vest in such
panchayat and every work constructed by a panchayat with the assistance
of Zilla Parishad or Panchayat Samiti shall vest in a panchayat in the
manner provided by rules made in that behalf.
13) Thus, no transfer of any immovable property can be done by
a Panchayat without previous sanction of the Chief Executive Officer.
Admittedly, previous sanction of Chief Executive Officer was not obtained
for execution of the document, which Petitioner believes to be a 'rent
agreement'. Curiously, the document does not create any liability for
Petitioner to pay rent for occupying the panchayat land and this is yet
another reason why the same cannot really be treated as a contract for
legal occupation of panchayat land by Petitioner.
14) Even if the infirmity of failure to obtain previous sanction of
the Chief Executive Officer is to be momentarily ignored and even if the
document relied upon by the Petitioner is to be treated as a Rent
Agreement, the tenure thereof has admittedly come to an end on expiry of
period of 11 months. Thus, as on the date of contesting the elections, the
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Petitioner continued to remain in illegal possession of the Gram Panchayat
land after expiry of tenure of the so-called Rent Agreement.
15) Thus, in the present case Petitioner has encroached upon
the Gram Panchayat land prior to 26 June 2019 and applied to Gram
Panchayat for adding his name in the assessment record. The subsequently
executed document on 1 July 2019 seeks to create an impression as if the
Petitioner took over possession of the land after 26 June 2019, which
assertion does not match with the language employed in Resolution No.
254(2), which shows that Petitioner was already occupying the land and
wanted his name to be entered in Gram Panchayat records as occupier
thereof. Admittedly, Petitioner did not vacate the land after expiry of
tenure of the so called rent agreement.
16) Thus, Petitioner is an encroacher prior to passing of
Resolution No. 254(2) where he admittedly possessed the Gram Panchayat
land in absence of any authorization. Similarly, he remained encroacher
after expiry of the period of license granted vide so called Agreement dated
1 July 2019. Thus, on both the counts, he will have to be treated as
encroacher in respect of the Gram Panchayat Land.
17) Reliance by Mr. Desai on judgment of this Court in Harku
S/o. Kisan Magar (supra) does not cut any ice. In that case, Gram
Panchayat had adopted a resolution for lease of the village panchayat land
in favour of the Petitioner therein. In the present case, Resolution No.
254(2) dated 26 June 2019 did not contemplate grant of any lease in favour
of the Petitioner in any manner. Thus, the facts in the case of Harku S/o.
Kisan Magar are entirely at variance with the facts involved in the
present case.
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18) Reliance by Mr. Desai on the judgment of this Court in
Gram Panchayat, Aurala & Anr. (supra) also does not assist the case of
the Petitioner. The judgment in Gram Panchayat, Aurala & Anr. is
rendered in the light of suit filed under provisions of Section 6 of the
Specific Relief Act, 1963 and one of the issues before this Court was about
possession by a tenant after termination of tenancy. In the present case,
Petitioner is not a tenant and therefore there is no question of termination
of his tenancy. It therefore cannot be contended that Petitioner has
remained in juridical possession of the gram panchayat land.
19) Mr. Desai has relied upon provisions of Section 37 of the
Village Panchayat Act, in support of his contention that the Resolution No.
254(2) dated 26 June 2019 has not been rescinded by two-thirds of the total
number of members of the Panchayat and that until the resolution is
cancelled, the same would continue to operate. In my view, reliance by Mr.
Desai on provisions of Section 37 of the Act does not make the case of the
Petitioner any better. In the first place the resolution does not allot the
land in favour of the Petitioner. It merely records the name of the
Petitioner as occupier of the land for the purpose of payment of taxes. The
resolution is adopted on a request made by the Petitioner and readiness
shown by him to pay Gram Panchayat assessment taxes on account of his
possession of the Gram Panchayat land. Since the resolution does not allot
the land in favour of Petitioner, there is no necessity of cancellation of the
said resolution.
20) With regards to the contention of Petitioner that he has been
occupying the land with the consent of the gram panchayat, I am of the
view that entering name of Petitioner in the records of the panchayat for
recovery of taxes would not make Petitioner an authorised occupier, in any
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manner. It is inconceivable that encroachers on panchayat land can be
permitted to cite recording of their names in panchayat assessment records
to claim legal possession of Government land. The observations made by
Single Judge of this Court (His Lordship Justice Ravindra V. Ghuge) in
Sanjay Kantilal Thakre Vs. State of Maharashtra & Ors. 3 in this
regard are apposite. This Court has adversely commented on the concept of
regularization of possession of government lands by politicians by holding
in paragraph 15 as under:
15. At times, I find it quite intriguing that when politicians cause
encroachment on their own motherland, the State Government brings
out a G.R. to regularize such encroachment. In the instant case, the
husband of the Sarpanch has moved the State to regularize such
encroachment. I hope that the State Government would ensure that a
clean and fair atmosphere is maintained and all those causing
encroachment be dealt with, with an iron hand. If not, I find that
policies promoting regularization of encroachments would be
counterproductive and would embolden such people since they would be
under the impression that they could resort to encroachment and
subsequently influence the policy makers to get such encroachments
regularized.
21) After considering the overall conspectus of the case, I do not
find that any valid case is made out by the Petitioner to interfere in
concurrent findings recorded by the Collector and the Divisional
Commissioner. Petitioner has admittedly encroached upon the Gram
Panchayat land and has thereby attracted disqualification under provisions
of Section 14(1)(j-3) of the Village Panchayat Act.
22) This Court is mindful of the fact that disqualification of the
Petitioner would entail removal of a democratically elected person.
However, objective behind enactment of Clause (j-3) under sub-section (1)
of Section 14 of the Village Panchayat Act must be borne in mind. Any
person vying to became elected representative of a Gram Panchayat should
3 2019 (3) Mh.L.J. 730
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not indulge in encroachment of any Government land in any form. In the
present case, Petitioner first encroached upon the Gram Panchayat land,
then applied for recording his name in assessment records of the
Panchayat, executed a self-declaration kind of document to show legal
possession of Panchayat land for 11 months and continued occupying the
land after expiry of period of 11 months. Having brazenly enchorached
upon the Panchayat land, he has attracted the disqualification under
provisions of Section 14(1)(j-3) of the Act. Resultantly, I do not find any
valid reason to interfere in the impugned orders. Writ Petition is devoid of
merits and it is accordingly dismissed, without any order as to costs.
23) After the judgment is dictated, Mr. Desai would request for
continuation of interim order granted by this Court on 14 November 2024
for a period of eight weeks. This Court had granted interim relief in terms
of prayer Clause (b) in the Petition meaning thereby that the orders passed
by the Collector and Divisional Commissioner were stayed. However, the
order disqualifying the Petitioner was passed on 22 September 2023 and
the said order was upheld on 28 February 2024. Petitioner has thus been
disqualified way back on 22 September 2023. It is therefore highly doubtful
as to whether the interim order dated 14 November 2024 would have the
effect of reinstating the Petitioner as Member after passage of more than 1
year from his disqualification. The interim order would, at the highest,
prevent election of new Member in place of Petitioner. Also, considering the
findings recorded in the judgment, I am not inclined to continue the
interim order granted by this Court any further. The request for
continuation of the interim order is accordingly rejected.
[SANDEEP V. MARNE, J.]
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