RAVINDRA v. GHUGE & Y.G. KHOBRAGADE, JJ.DATED
Legal Reasoning
( 1 ) wp789.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD179 WRIT PETITION NO. 789 OF 2024BABASAHEB FAKKAD RANDHAWANE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERS180 WRIT PETITION NO. 819 OF 2024LOKMANYA GRAMIN BIGARSHETI SAHAKARI PATH SANSTHA LTDTHROUGH ITS AUTHORIZED PERSONSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERS181 WRIT PETITION NO. 828 OF 2024ARUN GOVIND RAYKAR AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERS182 WRIT PETITION NO. 833 OF 2024POPAT YOHAN SHINDE AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERS183 WRIT PETITION NO. 844 OF 2024SHARAD DAGDU MHASKE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERS184 WRIT PETITION NO. 847 OF 2024SAYYAD SHAUKAT ALI HAMID KAZI AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS
Legal Reasoning
( 2 ) wp789.24185 WRIT PETITION NO. 855 OF 2024SHASHIKANT CHANDRABHAN SASANE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH THE PRINCIPAL SECRETARYAND OTHERS186 WRIT PETITION NO. 868 OF 2024MACCHINDRA RAMDAS SAWANT AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS187 WRIT PETITION NO. 882 OF 2024YOGESH BHAUSAHEB LOKHANDE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY ANDOTHERSWITHWRIT PETITION NO. 883 OF 2024 188 WRIT PETITION NO. 884 OF 2024IMRAN BHAIYYA SHAIKHVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS189 WRIT PETITION NO. 934 OF 2024RAJU BABU SAYYAD AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS190 WRIT PETITION NO. 935 OF 2024JADAHV SUBASH CHINTAMANI AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERSMr. N.B. Narwade, Mr. V.V. Wagh, Mr. V.D. Sapkal,Sr. Advocate i/b. Mr. A.B.Jagtap, Mr. A.G. Ambetkar, Mr. V.D. Hon, Sr. Advocate i/b. Mr. Vakil Afzal
Decision
( 3 ) wp789.24Hussain M., Mr. T.Y. Sayyed, Advocates for the petitioners.Mr.S.K. Tambe, Mr. S.B. Narwade, Mr. R.S. Wani, AGPs for the respondent/State.Mr.S.B. Parnere, Mr. A.D. Aghav, Advocates for the respondent – Zilla Parishad,Ahmednagar.Mr. H.F. Pawar, Advocate for R-9 in WP No. 789 of 2024.Mr. P.R. Nangare, Advocate for R-7 & 8 in WP No. 789 of 2024.CORAM: RAVINDRA V. GHUGE & Y.G. KHOBRAGADE, JJ.DATED: 29.01.2024PC :-01.In all these writ petitions, we had passed an order on 22.01.2024as under :-“1.In all these Writ Petitions, the Petitioners are aggrieved by the orders passedby the Block Development Officer, Panchayat Samiti, Pathardi, District Ahmednagar,by which, the Petitioners have been directed to voluntarily remove encroachments.The foundation of these orders is the order passed by this Court dated 17.08.2023 inPublic Interest Litigation No.4/2022 (Valmik Rajaram Garudkar vs. The State ofMaharashtra and others). It would be apposite to reproduce the directions issued bythis Court below paragraph 4, here under:-“4. In view of the above, this petition is disposed off with thefollowing directions:-[a] Respondent No.4 shall initiate steps as are permissible in Law,for the removal of encroachment.[b] All the persons alleged to be the encroachers, shall be issuedwith appropriate notices, as is prescribed in Law.[c] Respondent No.3 would personally monitor the abovesaidexercise and respondent No.4 would be bound to report toRespondentNo.3, on weekly basis with regard to the progress made.[d] All the stake holders and concerned persons would be grantedadequate opportunity of representation and would bepermitted toproduce their title documents to indicate their ownership ortheir legally sustainable interest, over the concernedproperties.[e] The above stated exercise would be completed within a periodof 150 days.” ( 4 ) wp789.242.The Block Development Officer, Panchayat Samiti, Pathardi, hasentered an affidavit in reply dated 22.01.2024 along with several documents. Duringthe course of this hearing, he frankly stated that though this Court has directed in thePIL (reproduced portion as above) that the Block Development Officer should passfinal orders and initiate steps for removal of encroachment, the task is herculean andthe Block Development Officer is finding the said task too heavy to be handled.3.While these matters are being heard, we have been categoricallyinformed by the Petitioners that the in-charge Block Development Officer Dr. JagdishPalve had heard all these purported encroachers. However, after the regular BlockDevelopment Officer, namely, Mr. S.R. Kamble, was appointed, there was no furtherhearing conducted and on the basis of the hearing held by Dr. Palve, Mr. Kamble haspassed the impugned orders. We do not find that such procedure could becountenanced. It is well settled that the Presiding Officer, who hears the parties, issupposed to pass an order. If the coram has changed, the new officer is supposed toconduct a re-hearing and pass orders. So also, considering the view of the BlockDevelopment Officer before us, we find that certain steps will have to be initiated inorder to ensure that the superior officer could deal with this entire exercise, whichappears to be burdensome and cumbersome for the Block Development Officer.4.The learned AGP would take instructions from the District Collector,Ahmednagar and would address this Court. He prays that the disposed off PILNo.4/2022 be listed along with these matters on the next date.5.The learned Advocate appearing for the Respondents/ Zilla Parishadand Panchayat Samiti (Block Development Officer), submits that time was granted tothe purported encroachers to voluntarily remove their encroachments until todayevening (22.01.2024). The Block Development Officer would extend the time until31.01.2024.6.Since the learned Senior Advocate Shri Sapkal is leading the learnedAdvocates in these matters, we expect him to have proper instructions from thebriefing Advocates and convey to the Petitioners that those who have actuallyconstructed by encroachment, they should remove such encroachments bythemselves on or before 31.01.2024.7.List these matters on 29.01.2024 at 02:30 PM.8.We find it appropriate to record that the concerned Gram Panchayatwill not extend any lease agreements with any of these Petitioners without the leaveof this Court.9.Since most of the parties are before us on the Advocate’s notice, wegrant liberty to the Petitioners to serve the Gram Panchayat through it’s Sarpanchand/or Gram Sevak by humdust.10.Leave to add the original PIL Petitioner as the Respondent. Addition ( 5 ) wp789.24be carried within two days. Shri H.F. Pawar appears on his behalf.”02.We have heard the learned Sr. Advocates Mr. Hon and Mr. Sapkaland briefing Advocates on behalf of the respondents. We have perused thelaw laid down by the Hon’ble Supreme Court in Jagpal Singh & Ors. Vs. Stateof Punjab & Ors., (2011) 11 SCC 396.03.It is, thus, obvious that after the directions were issued inParagraph No.4 in Valmik Rajaram Garudkar (Supra), which are reproducedhereinabove, the BDO issued notices to all the purported encroachers andstarted hearing each one of them and started receiving the documents thatthey were tendered. The BDO was expected to prepare reports on the case ofeach encroacher and submit the same to the CEO. Since the land was underthe charge of the Grampanchayat and considering Section 53 of theMaharashtra Village Panchayats Act, the Panchayat had the power to removesuch obstructions or the encroachments. Under sub-section 2-A, if thePanchayat fails to take action under sub-section 2, the Collector suo moto oron an application made in that behalf, can take action and submit a report tothe Commissioner. The expenses of such removal is to be paid by the personwho has caused the said obstruction or encroachment. ( 6 ) wp789.2403.We were informed in the PIL that the BDO would be conductingthe exercise of hearing the encroachers after issuance of notices, receive thedocuments tendered by them and submit a report to the CEO, who would takea final decision. What has actually happened is recorded in paragraph 3 ofour order reproduced above, which would indicate that the In-charge BDO Dr.Jagdish Palve had heard the purported encroachers and thereafter, the regularBDO Mr. S.R. Kamble passed the impugned orders. This procedure is alien tolaw. 04.In view of the above, all these petitions are disposed off with thefollowing directions :-(a)Since a regular BDO is now appointed, namely Mr.S.R. Kamble, he would proceed to issue fresh notices to each ofthe encroachers granting them seven days’ time to tender theirwritten replies accompanied with all documents. (b)He would prepare confidential reports of eachhearing conducted by him in each case, with his impressionsabout the documents and submit the report in a sealed envelopeto the CEO as directed in the order dated 17.08.2023 in the PILfiled by Valmik Rajaram Garudkar (Supra).(c)After the hearing of all the encroachers is concludedand the reports are submitted in sealed envelopes to the CEO, the ( 7 ) wp789.24said Authority will open the envelopes at the same time and willbe at liberty to follow the due procedure laid down in law fortaking action on the said reports.(d)Since we are informed that there are about 401encroachers, we would grant 120 days time for completion of thisentire exercise. If the BDO or the CEO finds itself short of time,an application with proper justification shall be tendered to theCourt for seeking extension of time. However, this would notmean that the said Authorities would proceed slowly in thesematters.(e)After the final decision is arrived at by the CompetentAuthorities, if the encroachers are aggrieved by such decision,they would be at liberty to avail of remedies as would bepermissible in law. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]snk/2024/JAN24/wp789.24