Dinkar Sampatrao Mogal And Others vs Additional Commissioner And Others

M.S. Jawalkar, J

(1) Heard Shri P.B. Patil, learned Advocate for the Petitioners, Shri A.M. Kadukar, learned AGP for the Respondent/State, Ms. M. Ghatode, learned Advocate for the Respondent No. 4 and Shri A. Jaiswal, learned Senior Advocate assisted by Shri K. Deshmukh, learned Advocate for Respondent No. 6.

(2) Being aggrieved by the order passed by the Respondent No. 1 – Additional Commissioner, Amravati Division, Amravati on 02/02/2022, the Petitioners have filed the present Writ Petition. The relevant facts for adjudication of the present Writ Petition can be summarized as under:-

(3) In October, 2017, the Respondent No. 6 came to be elected as Sarpanch of Village Changefal, Tq. Sindkhed Raja, District Buldhana. The Petitioners filed Complaint under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as “the said Act”) before the Additional Commissioner, Buldhana on 14/09/2020 alleging that the Respondent No. 6 has misused the powers by encroaching upon the government land and because of misuse of his powers, he be removed from the said post. The said Complaint came to be transferred to the Respondent No. 2 - Additional Collector, Amravati, who by the order dated 07/10/2021, rejected the said Complaint of the Petitioners by maintaining the Respondent No. 6 on the post of Sarpanch. Being aggrieved by the same, the Petitioners challenged the order of the Respondent No. 2 by way of Appeal under Section 16(2) of the said Act before the Respondent No. 1. The Respondent No. 1, by the order dated 02/02/2022, dismissed the Appeal of the Petitioners and thereby maintained the order of the Respondent No. 2. The said orders passed by the Respondent Nos. 1 & 2 are the subject matter of challenge in the present Writ Petition.

(4) Heard both the parties at length. It is the contention of the learned Counsel for the Petitioners that both the Authorities below have not considered the documents on record in their proper perspective and perverse finding is recorded. He is relying mainly on the map at Annexure-E. It is vehemently urged that from the map, it appears that there is clear cut encroachment on the Government land by the Respondent No. 6 – Janardhan Mogal on the Government land. The Respondent No. 6 is disqualified in view of Section 14(1)(j-3) of the said Act.

(5) It is relevant to reproduce Section 14(1)(j-3) of the said Act which runs as under:-

“S.14. Disqualifications:- (1) No person shall be a member of a panchayat continue as such, who -

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(j-3) has encroached upon the Government land or public property”

(6) It is the contention of the Petitioners that there is discrepancy in the documents placed on record by the Respondent No. 6. There is overwriting and the Survey numbers are not tallying. As such, both the Authorities below ought to have held that the Respondent No. 6 is disqualified to hold the post of Sarpanch in the Office of Gram Panchayat, Changefal.

(7) Learned Counsel for the Petitioners, in support of his contentions, relied on the judgment of the Hon’ble Apex Court in the case of Janabai vs. Additional Commissioner & others reported in 2018(5) Mh.L.J. 921. He submitted that when a person shares an encroached property by residing there and there is continuance, he/she has to be treated as disqualified. It is submitted that the very object of introducing the provision of disqualification under Section 14(1)(j-3) of the said Act is to avoid the conflict of interest by prohibiting the persons, who are the encroachers upon the Government land or public property to get elected or continued as a member of the Panchayat, which is democratically elected body of the villagers.

(8) As against this, learned Senior Counsel for the Respondent No. 6 submitted that the Petition is not maintainable as the Petitioners are seeking re-appreciation of the evidence which was concurrently held by both the Authorities below in favour of the Respondent No. 6. Moreover, this challenge of overwriting or discrepancy was never raised before the Authorities. The scope of Writ Petition is limited and only in the circumstances that perverse finding is recorded or principles of natural justice are violated, this Court can entertain the Petition. It is not open to any party to challenge any finding of fact on the ground of insufficiency of evidence and appreciation or re-appreciation of evidence. It is further submitted that to hold Sarpanch as disqualified, there has to be clear case of encroachment.

(9) Learned Senior Counsel for the Respondent No. 6, in support of his contentions, relied on the judgment of the Hon’ble Apex Court in Civil Appeal No. 2085/2012 (Ravi Yashwant Bhoir vs. District Collector, Raigad & others) dated 02/03/2012. It is submitted that removal of an elected office bearer is a serious matter. The elected office bearer must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the Authority should not be guided by any other extraneous consideration or should not come under any political pressure. He has also relied on the judgment of the Hon’ble Apex Court in the case of Jai Singh & others vs. Municipal Corporation of Delhi & another reported in (2010) 9 SCC 385 in support of his contention that the correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an Appellate Court and re-appreciate the evidence.

(10) I have considered the rival submissions as well as the orders passed by the Lower Authorities. The Additional Collecter, while passing the order in Case No. 14(1)(j-3)/changefal-5/2020-21, considered the contention of the Petitioners that the Respondent No. 6 encroached the Government land in Gat No. 66 while constructing “field lake”. The said field lake is constructed by encroaching certain portion of the land of Government. It is also alleged by the Petitioners that when the measurement of the Gat No. 66 was carried out, it was found that there is encroachment by the Respondent No. 6 and his son Satish & brother Subhash. At the relevant time, the Respondent No. 6 was also present. This fact was suppressed by the Respondent No. 6 at the time of submitting the nomination papers.

(11) As against this, the contention of the Respondent No. 6 was that there was no encroachment by the Respondent No. 6 or his son and brother. It is further submitted that the land shown as per the E-Sheet is in possession of Satish Mogal. In connection to that land, one Mahadev Sadashiv Narwade filed Civil Suit before the learned Civil Judge Senior Division, Mehkar vide Regular Civil Suit No. 33/2020. The learned Court passed an order below Exhibit No. 5. It was held that the said land was not in possession of Satish Mogal and it is in possession of Mahadev Narwade and accordingly injunction was granted in favour of the Plaintiff. All these facts were duly considered by the Additional Collector. The learned Authority below observed that in fact the said field lake is not constructed by the Respondent No. 6. It was constructed by one Subhash Nilkanth Mogal and for that reason, he received government grant. The said Subhash Mogal is not the Member of family of the Respondent No. 6. In view thereof, the allegation of encroachment cannot be applied for disqualification of the Respondent No. 6. After considering the evidence before the Authority, it came to the conclusion that the alleged encroachment on the Government land by the Respondent No. 6 or his son and brother is not established.

(12) The Petitioners preferred an Appeal bearing No. 13/BVP/Changefal/2021-22 under Section 16(2) of the said Act. The learned Commissioner, after hearing both the parties and on perusal of the record, also came to the conclusion that the Respondent No. 6 has not encroached upon any Government land. So far as the land shown in possession of Satish Mogal – son of the Respondent No. 6, as per the order passed by the learned Civil Judge Senior Division dated 15/09/2021, 1.23 R is in the possession and cultivation of one Mahadev Narwade. He also observed that the measurement of Gat No. 66 is not beyond doubt. Some portion of field lake shown in Gat No. 66 is belonging to one Subhash Mogal who is the not family member of the Respondent No. 6. Therefore, it is not duly established that there was any encroachment by the Respondent No. 6 and confirmed the order passed by the learned Additional Collector.

(13) Insofar the judgment relied upon by the learned Counsel for the Petitioners in the case of Janabai (supra) is concerned, the facts involved in the said case are distinguishable as there was concurrent finding of fact that the father-in-law and the husband of the Appellant therein have encroached upon the Government land and despite notice, they have not vacated the same on one pretext or the other and the Appellant continued to use the said land and therefore was disqualified. The judgment relied by the learned Counsel for the Petitioners in present set of fact is of no help to the Petitioners.

(14) For disqualification, there has to be encroachment duly established and it cannot be on the vague allegations of encroachment on the Government land. When there is order of Civil Court prima-facie declaring possession of one Mahadev Narwade, it cant be expected to record finding otherwise by Collector or Commissioner. Moreover, it is concurrently held that no clear case of encroachment is established. As such, I do not see any reason to interfere in the findings recorded by both the Authorities below.

(15) The Writ Petition is devoid of merit and accordingly is dismissed. Pending Application(s), if any, stand(s) disposed of.