902 WRIT PETITION NO.8004 OF 2018

19th June 2019

Petitioner Counsel: Shri V.D.Hon Shri Ashwin V. Hon
Respondent Counsel: Shri S.K.Tambe Shri Nilesh N. Desale Shri R.N.Dhorde Shri Vijay B. Patil Shri A.D.Pawar
Act Name:

Section :

Cases Cited :
Paras 8, 27: Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, [(2012) 4 Supreme Court Cases 407]
Para 11: Devidas Matiramji Surwade Vs. Additional Commissioner, Amravati and Others, [2017 (7) Bom.C.R. 411]
Para 11: Sandip Ganpatrao Bhadade Vs. Additional Commissioner, Amravati and Others, [2017 (1) Mh.L.J. 79]
Para 11: Janabai Vs. Additional Commissioner and Others, in Civil Appeal No.6832 of 2018

JUDGEMENT

1. The petitioner has challenged the orders passed by the Collector, Dhule and the Revenue Commissioner, Nashik, whereby the petitioner has been held disqualified to hold the post of Member of Gram Panchayat, Mhalsar, Tq.Shindkheda, Dist.Dhule.

2. The General Elections of Gram Panchayat, Mhalsar were held in the year 2015 for the term of five years i.e. 2015-2020. Petitioner contested the said election and got elected as the Member of the said Gram Panchayat. Wife of respondent No.4 was, then elected as Sarpanch of the said Gram Panchayat. After completing the tenure of one year, she resigned from the post of Sarpanch and therefore, the election was held for electing a new Sarpanch for the further period. The present petitioner contested the said election and got elected.

3. On 06.09.2017, respondent No.4 raised a dispute and filed a complaint before the Collector, Dhule alleging therein that the petitioner was disqualified to hold and to be continued as the Member of Gram Panchayat, Mhalsar and in turn Sarpanch of the said Gram Panchayat, as she has committed encroachment on the Government land. On such complaint made to the Collector, Dhule, an enquiry was conducted by the Collector and after having heard the complainant and present petitioner and after having gone through the record and reports, which were called by him, the learned Collector vide order passed on 28.03.2018, held the petitioner disqualified to hold and continue as the Member of Gram Panchayat, Mhalsar. The petitioner challenged the said order by filing an Appeal bearing No.25 of 2018, before the Revenue Commissioner at Nashik. The learned Revenue Commissioner vide his order passed on 19.06.2018, has dismissed the appeal filed by the petitioner and confirmed the order passed by the Collector, Dhule. Aggrieved thereby, the present petition has been filed.

4. Shri V.D.Hon, learned Senior Counsel holding for Shri Ashwin V. Hon, learned Counsel for the petitioner, submitted that both the revenue authorities have failed in appreciating the record of Gram Panchayat so far as the allegation made against the present petitioner of committing encroachment is concerned, which has resulted in passing erroneous orders by the said authorities. The learned Counsel submitted that while contesting the election in the year 2015, a certificate was submitted by the petitioner to the effect that she had not encroached on any Government property. The certificate was issued in that regard by the Gram Sevak of Gram Panchayat, Mhalsar on 14.07.2015. The learned Senior Counsel submitted that submission of such certificate was the requirement and such document was part of set of documents to be enclosed with nomination form.

5. The learned Senior Counsel further submitted that nobody including wife of respondent No.4 had raised any objection as about the correctness of certificate so annexed by the petitioner along with her nomination form. The learned Senior Counsel submitted that no such objection was ever raised by respondent No.4 or anybody to the nomination of present petitioner on the ground that she has committed an encroachment on the Government land and thus was not qualified to contest the elections of the Gram Panchayat. The learned Senior Counsel further submitted that even when the present petitioner was elected as Sarpanch that was unanimous Resolution passed by all the Members of the Gram Panchayat, Mhalsar including wife of respondent No.4 and at that time also none has raised any objection that petitioner has committed encroachment on Government land and hence was not qualified.

6. The learned Senior Counsel submitted that subsequently for ulterior reasons, absolutely false complaint came to be lodged alleging that the petitioner has committed an encroachment on public property and there was entry in Gram Panchayat record in that regard. The learned Senior Counsel further submitted that false record was prepared in that regard and was submitted before the Collector. The said record was seriously disputed by the present petitioner stating that at no point of time she had committed any encroachment and it was brought to the notice of the authorities concerned that the record produced against the petitioner was not dependable as there was scoring and the name of the petitioner was falsely included and as such in absence of concrete evidence as about encroachment, the petitioner was not liable to be disqualified.

7. The learned Senior Counsel submitted that, Collector, Dhule has manifestly erred in appreciating the evidence, which was attempted to be brought on record by the petitioner and also failed to appreciate the record possessed by the Gram Panchayat of earlier years and merely on the fact that the petitioner on 14.09.2017 did pay the amount of Rs.1,292/- towards the Gram Panchayat house tax for the property numbered as 632, held that the petitioner had encroached on the Government land. The learned Senior Counsel further submitted that wrong inference has been drawn of the Resolution passed after the petitioner became Sarpanch of village Mhalsar, to the effect that her name should be deleted from the encroachment register maintained by the Gram Panchayat against house No.632. The learned Senior Counsel submitted that the appellate authority i.e. Revenue Commissioner, Nashik, also failed in appreciating the contentions raised on behalf of the petitioner as well as the record which was available before him and has mechanically confirmed the order passed by the Collector, Dhule.

8. The learned Senior Counsel relying on the Judgment of the Hon'ble Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others [(2012) 4 Supreme Court Cases 407] submitted that removal of an elected representative has serious repercussions as it casts stigma and takes away valuable rights of the said persons as well as the rights of the people of their respective constituencies to be represented by the said persons. The learned Senior Counsel submitted that unless there is strict compliance and strict proof as about the allegations made, the order of removal cannot be passed in a casual manner. The learned Senior Counsel further submitted that having regard to the facts involved in the present matter and the evidence brought on record, the order passed by the Collector, which has been confirmed by the Commissioner is liable to be set aside and the petitioner deserves to be restored to her post of Member, Gram Panchayat, Mhalsar.

9. Shri R.N.Dhorde, learned Senior Counsel holding for Shri Vijay B. Patil, learned Counsel appearing for respondent No.4 resisted the submissions advanced on behalf of the petitioner. The learned Senior Counsel supported the orders passed by the Collector, Dhule as well as the Commissioner, Nashik. The learned Senior Counsel taking me through the record of the case and bringing to my notice the entries in the registers maintained by Gram Panchayat, Mhalsar in Namuna No.8 and Namuna No.9, submitted that the said record sufficiently demonstrates that property numbered as Gram Panchayat house No.878, which was subsequently numbered as 632, was the Government open land and was in unauthorized possession of the petitioner. The learned Senior Counsel submitted that after becoming Sarpanch of Gram Panchayat, by bringing undue influence on authorities concerned and the Officers of the Gram Panchayat, the entries in that regard have been illegally got cancelled by the petitioner. The learned Senior Counsel submitted that however, the said act of the petitioner is sufficient to establish that there was a record as alleged by respondent No.4, evidencing that Government open land initially numbered as 878 and subsequently numbered as 632 was encroached upon by the petitioner and was in unauthorized occupation of the petitioner on the date of her filing nomination.

10. The learned Senior Counsel further pointed out that though the Resolution removing the name or cancelling the entry showing the name of petitioner as encroacher on property No.632 was resolved to be cancelled in the meeting of Gram Panchayat held on 24.03.2017, the act of the present petitioner of depositing or paying the tax of Rs.1,292/- on 14.09.2017, negates the plea taken by the petitioner that she had not made any encroachment as alleged by respondent No.4. The learned Senior Counsel further submitted that merely because one of such entries seems to have been scored, wherein the name of the petitioner has been incorporated against house No.632, it would be unsafe to draw a conclusion that entries in the record maintained by the Gram Panchayat for earlier years and for subsequent years were false or bogus. The learned Senior Counsel brought to my notice the record maintained by the Gram Panchayat of the year 2014-2015 in Namuna No.9, and more particularly, entry at Sr. No.580 pertaining to house No.878, wherein the name of the petitioner is shown as the occupant of the said house. The learned Senior Counsel submitted that for the year 2016-2017 and 2017-2018 similar entries are there existing on record and as such conclusion drawn by the Collector, Dhule that the petitioner has committed an encroachment on the public property is based on the evidence and hence no interference is liable to be caused in the conclusion so recorded.

11. The learned Senior Counsel referring to the Judgments of this Court in the cases of Devidas Matiramji Surwade Vs. Additional Commissioner, Amravati and Others [2017 (7) Bom.C.R. 411], and Sandip Ganpatrao Bhadade Vs. Additional Commissioner, Amravati and Others [2017 (1) Mh.L.J. 79], and the Judgment of the Hon'ble Apex Court delivered on 19.09.2018, in the case of Janabai Vs. Additional Commissioner and Others in Civil Appeal No.6832 of 2018, submitted that the allegations against the petitioner of having committed encroachment on the Government land was required to be taken seriously and accordingly the record has been brought before the authorities below and having considered the said record, the order of disqualification has been passed. The learned Senior Counsel submitted that the Revenue authorities are not supposed to pass the orders alike the orders passed by the Courts, however, everything has been considered by the Collector, Dhule while passing the impugned order and it cannot be said that the said order has been passed casually and without appreciating the record of the case. The learned Senior Counsel, in the circumstances, prayed for dismissal of the petition and to confirm the impugned orders.

12. Shri S.K.Tambe, learned AGP appearing for the State, supported the impugned orders. The learned AGP submitted that reply has also been filed on behalf of respondent Nos.1 and 2 and the same may be considered as the arguments on behalf of the State.

13. Shri N.N.Desale, learned Counsel appearing for respondent No.3 submitted for passing appropriate orders. He, however, brought to notice of the Court that in the meanwhile, the Administrator has been appointed on Gram Panchayat, Mhalsar and he is looking after the affairs of the Gram Panchayat. Thereupon, it was brought to my notice by learned Senior Counsel Shri Hon that in the year 2018 itself this Court has passed an order protecting the interest of the petitioner and has restrained the respondent authorities from declaring the result of the election held for the post of Sarpanch of Gram Panchayat, Mhalsar after disqualification of the present petitioner.

14. I have carefully considered the submissions advanced by the learned Senior Counsel appearing for the petitioner as well as respondent No.4 and the learned Counsel appearing for the other respondents as well as learned AGP appearing for the State. I have perused the order passed by the Collector as well as the order passed by the Commissioner and the other material placed on record. I have perused the original record, which was made available by Gram Sevak, Gram Panchayat, Mhalsar, who is present before the Court. More particularly, the registers maintained in Namuna No.8 and Namuna No.9 were asked for by the Court and they were accordingly made available for perusal of the Court.

15. It is the specific defence raised by the petitioner that she did never encroach upon any Government land and the record, which was produced in that regard before the Collector was false and not believable. The controversy is relating to the property which has been numbered in the record of the Gram Panchayat Mhalsar, initially as house No.878, and subsequently as house No.632. It is the allegation of respondent No.4 that the said property is Government open land and it was in unauthorized occupation of the petitioner on the date of filing her nomination. It was also the contention of respondent No.4 that being in possession of the Government open land unauthorizedly, petitioner was not qualified to hold the post of Member, Gram Panchayat, Mhalsar.

16. The material on record reveals that some documents were produced by respondent No.4 alongwith his complaint based upon which the enquiry was initiated by Collector, Dhule. The order passed by Collector, Dhule and more particularly, the last paragraph of the said order, which I deem it appropriate to reproduce herein below ad-verbatim is thus:-
^vtZnkj o tkc ns.kkj ;kaps ys[kh@rksaMh [kwykls rlsp R;k lkscrps nk[ky dsysys dkxni= o egkjk"Vª xkeiapk;r vf/kfu;e 1958 ps dye 14 t&3 ps voyksdu dys vlrk] rlsp ek-U;k;ky;kps vkns'kkuqlkj xVfodkl vf/kdkjh] iapk;r lferh] f'kan[ksMk ;kaps fn-14@02@2018 jksthP;k vgokykps voyksdu dsys vlrk] LFkG fujh{k.k varh vls fnlqu ;srs dh] xzkeiapk;rhdMhy ekyeRrk jft"Vj uequk ua-8 ikfgys vlrk R;kr ekyeRRkk dz-632 oj HkksxoVk lnjh Jherh t;kckbZ fd'kksj ikVhy ;kaP;k ukokph uksan gksrh- eqG ekyd lnjh ^ljdkj* vls uko gksrs- ijarq xzk-ia- ekfld lHkk fn- 24@03@2017 Bjko dz-4@2 vUo;s lnj uksan j| dsY;kckcr Bjko dsysyk fnlwu ;srks- rlsp xzkelsod EgGlj ;kapk tckc] uequk ua-8 ps Nk;kafdr izrh o dj Hkj.kk ikorhph Nk;kafdr izr pkSd'kh vgokykr lkehy vkgs- R;keqGs Jherh t;kckbZ fd'kksj ikVhy xzk-ia- lnL; ;kauh ekyeRrk dz-632 oj vfrdze.k dsY;kps fl/n gksr vlY;kus] eh ftYgkf/kdkjh] /kqGs [kkyhyizek.ks vkns'k ikjhr djhr vkgs-*

17. Perusal of the observations made by the learned Collector and the conclusion recorded by him demonstrate that the Collector perhaps has not seen the entire record, which was relevant for deciding controversy raised in the matter. As I noted herein above, the original record is made available for my perusal by the Gram Sevak, Gram Panchayat, Mhalsar. The perusal of the register maintained in Namuna No.8 for the year 2007-2008 to 2015-2016, more particularly, the entry at the relevant page at Sr.No.4, which pertains to property No.878, prescribed to be the open space ad-measuring 30x30 sq.ft., clearly shows that there is scoring in the name of 'Bhogwatadharak'. It is quite visible that some other name was recorded earlier and by using whitener, it has been wiped and the name of petitioner Jayabai has been subsequently recorded. It is also significant to note that by applying whitener, remarks earlier made in column Nos.19 to 25 are also wiped out.

18. Further, in the Register maintained in Namuna No.9 by Gram Panchayat, Mhalsar for the year 2015-2016, the entry pertaining to property No. 878 is at page No.67 of the concerned register at serial No.581. Perusal of the said entry apparently reveals that the name of petitioner Jayabai is introduced by scratching/wiping out the earlier name written in the said column being an occupier of the said property. The scratching or scoring in the name of the occupant of property No.878 in both the Registers maintained by the Gram Panchayat and the subsequent inclusion of the name of petitioner Jayabai as occupant of the said property, one in Namuna No.8 and another in Namuna No.9, cannot be simply said to be a co-incidence.

19. While considering the allegation made by Respondent No.4 and the evidence produced by him, more particularly the receipt, evidencing payment of tax allegedly made by the petitioner of the said property bearing No.878 (subsequently numbered as 632), the learned Collector must have taken into account the facts as aforesaid that the name of petitioner was subsequently included in both the registers maintained by the Gram Panchayat in Namuna Nos.8 and 9 respectively by scoring or scratching the name earlier recorded.

20. The certificate dated 14.7.2015 of `No encroachment’ issued by the Gram Sevak of the Gram Panchayat, Mhalsar, has to be read and appreciated in the aforesaid context. In the said certificate the Gram Sevak has certified that, on scrutiny of the register maintained under Namuna No.8, it was noticed by him that there was no encroachment committed by the petitioner Jayabai of any sort on any of the Government or public properties. There is scope to draw an inference that when the aforesaid certificate was issued by the then Gram Sevak, the name of the petitioner perhaps was not appearing as occupier of property No.878 in the register maintained under Namuna No.8 and the name of somebody else was appearing and subsequently, by scratching/altering the said earlier name or by applying whitener on the said name, name of the petitioner has been intruded as occupier of said property No.878.

21. On 14.7.2015, the petitioner was neither Sarpanch nor member of the Gram Panchayat, Mhalsar. No allegation, therefore, can be made that the certificate dated 14.7.2015 in regard to `No encroachment’ was falsely obtained by the petitioner by influencing the concerned Gram Sevak. 22. It was the submission on behalf of Respondent No.4 that the petitioner, after becoming Sarpanch of the Gram Panchayat, by bringing pressure on the members and office bearers of the Gram Panchayat, got deleted her name from the register of encroachers. The said allegation also needs to be looked into thoroughly. However, the fact remains that in both the registers maintained in Namuna Nos. 8 and 9, name of the petitioner was introduced by scoring/scratching the earlier name for the year 2015-2016 and the certificate issued by the Gram Sevak on 14.07.2015 certifies that, in the register maintained in Namuna No.8, there was no such entry, evidencing that the petitioner was in occupation of any Government or public property as encroacher. In no case, it can be said that scratching or scoring the name of the owner against the property No.878 for the year 2015-2016 in Namuna Nos.8 and 9, was at the instance of petitioner Jayabai. It is difficult to rule out the allegation made by the petitioner that the entries in Namuna Nos. 8 and 9 were manipulated and her name was falsely introduced in the said column as occupier of the said property by scratching the earlier name.

23. The order passed by the learned Collector demonstrates that from the receipt of payment of Gram Panchayat taxes by the petitioner pertaining to house No.632 on 14.09.2017, the learned Collector jumped to the conclusion that the petitioner was an encroacher on the public property and was thus liable to be disqualified. However, as I noted herein above, while considering the receipt of payment of tax by the petitioner of the property allegedly encroached upon by her and relying upon the said evidence, the learned Collector could not have ignored the documentary evidence as about the scored/altered entries in the Gram panchayat registers maintained in Namuna Nos. 8 and 9.

24. It was sought to be contended by Shri Dhorde, learned Senior Counsel appearing for Respondent No.4, that had it been a fact that the petitioner was not in possession of property No.632, which is admittedly a Government land, the petitioner should not have paid the arrears of taxes pertaining to the said house property. It was also argued by the learned Senior Counsel that making such payment of taxes, without lodging any protest, also leads to an inference that the liability to pay the tax of the said house of the relevant period was admitted to the petitioner. There upon it was contended by Shri Hon, learned Senior Counsel that the payment of the taxes was made by the petitioner by way of abundant precaution and to avoid the consequence of being in arrears of the Gram Panchayat taxes, the fact apart whether she was liable to pay the said taxes or not.

25. The possibilities expressed by both the learned Senior Counsel, are difficult to be ruled out. However, the fact remains that the said aspect has also not been properly dealt with by the learned Collector. It appears to me that merely on the receipt of payment of tax, no such conclusion could have been arrived at by the learned Collector, more particularly, when there was no other supportive evidence. On the contrary, some evidence was in support of the plea raised by the petitioner that she has not encroached upon any such public property. If Resolution No.4/2 passed in the meeting of the Gram Panchayat held on 24.03.2017 is perused, it reveals that at that time it was assertively submitted by the petitioner that the property No. 632 allegedly shown in her occupation as an encroachment, was never in her occupation. The submission so made by the petitioner is recorded in the Resolution. The Resolution so passed in the Gram Panchayat meeting has not been challenged. It is significant that wife of Respondent No.4 was present in the meeting of the Gram panchayat held on 24.03.2017 and she also did not oppose for passing Resolution No.4/2, whereby the name of the petitioner, shown as an encroacher of property No. 632, was resolved to be deleted.

26. The order passed by the learned Collector also reveals that he has relied upon report dated 14.02.2018 submitted by B.D.O., Shindkheda. I have carefully perused the said report. What transpires from the said report is the fact that in his spot/site visit, with the aid of the local residents, he inspected the property allegedly shown to be occupied by the petitioner by way of encroachment and in the inspection, it was noticed by him that the said plot of land was lying vacant. Thus, there was no report from the B.D.O., evidencing that the said property was in actual use and occupation of the petitioner.

27. There cannot be a dispute as about the argument advanced by the learned Senior Counsel Shri Dhorde that, no one shall encroach upon the Government land or the public property and if he is an elected representative of the people, he owes the greater responsibility and moral duty not to make any such encroachment and ensure that no encroachments are made. There also cannot be a dispute that if encroachment is noticed to have been made by a public servant and/or by democratically elected representative of the people, that has to be taken more seriously and as such, a member of Gram Panchayat found to be in encroachment of any public property, must be held to be disqualified for the said reason. However, it also has to be borne in mind that as has been observed by the Hon'ble Apex court in the case of Ravi Yeshwant Bhoir (cited supra) removal of the elected member has serious repercussions, as it casts stigma and takes away their valuable right as well as rights of people of the representative constituencies to be represented by them and hence while removing the elected representatives on any ground or for attaching any disqualification to them, there must be a very strong and concrete evidence and the procedure laid down for conducting such enquiry shall be scrupulously followed.

28. In the instant matter, as is prima facie revealing the evidence, which has come on record, is only in respect of some entries in the Gram Panchayat record, showing the petitioner to be in occupation of one Government property as an encroacher. However, there is absolutely no evidence showing that the petitioner is in use or in occupation of the said property. On the contrary, as I noted herein above, the report submitted by the B.D.O. indicates that in his spot inspection/visit, it was noticed that the property allegedly in possession of the petitioner was an open plot and it was lying vacant.

29. After having considered the entire material on record, it appears to me that the learned Collector, Dhule, at the first instance and thereafter the learned Revenue Commissioner, both have not considered the entire material on record. In the circumstances, without going into the merits of the matter and without expressing any opinion as about the rival contentions raised by the respective parties as about the encroachment allegedly made by the petitioner, I deem it appropriate to remit the matter to the learned Collector, Dhule to decide it afresh by scrutinizing the entire record and by giving due opportunities to both the parties to make their respective submissions and to adduce necessary evidence in support of their respective contentions. The parties are directed to appear before the learned Collector on 1st July 2019. The learned Collector shall decide the matter afresh, as expeditiously as possible and preferably within a period of four weeks from the date of appearance of the parties before him. The parties to cooperate the learned Collector for deciding the matter within the stipulated period. Till then, the present arrangement, i.e. appointment of an administrator to look after the affairs of the Gram Panchayat, shall continue to remain in force.

30. The petition stands allowed in the aforesaid terms. Pending civil application, if any, stands disposed of.