High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1094 OF 2024SANJAY BAJIRAO MARKADVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr. Shaikh Ashraf Mannulal Patel h/f Mr. A. P. Avhad, Advocate for the petitioner Mrs. M. N. Ghanekar, AGP for respondent/StateMr. S. B. Parnere, Advocate for respondent No.4Mr. D. R. Markad, Advocate for respondent No.5.CORAM: R. M. JOSHI, J.DATE: 20th MARCH, 2025PER COURT :-1.This petition takes exception to the order passed by theDivisional Commissioner directing remand of the proceedings underSection 14(1)(j-3) of the Maharashtra Village Panchayats Act (for short’the Act’) to the Collector in Grampanchayat Dispute No. 116/2021 fordecision afresh.2.Petitioner is the member of Gram Panchayat. RespondentNo.6 who is the resident of village filed dispute Application No. 116/2021before the Collector, Ahmednagar invoking provisions of Section 14(1)(j-3) of the Act. It was alleged against the petitioner that the petitioner hasencroached upon gut No. 741 which is class III inam land belonging toShree Kanifnath Devasthan, Madhi. It is alleged that the petitioner haswp1094.24.odt1 of 5 constructed a cow shelter home therein. The Collector, Ahmednagar byorder dated 13/01/2023 dismissed the dispute. Being aggrieved by thesaid order appeal came to be preferred before the DivisionalCommissioner, Nashik being No. 17/2023. By order dated 11/12/2023,Additional Divisional Commissioner set aside the order passed by theCollector and remanded back the matter for decision afresh withobservation that the Collector has not dealt with the issue as to whetherthe encroachment caused on inam land would be covered by Section14(1)(j-3) of the Act.3.Learned counsel for the petitioner submits that the DivisionalCommissioner has committed serious error in not considering theprovision of Sections 14(1)(j-3) of the Act in proper perspective. It is hisargument that it is only in case of the government land or publicproperty encroachment is done, it becomes disqualification for continuitywith the membership of Gram Panchyat. It is his submission that theproperty even if it is a inam land or the property of a trust cannotbecome a public property within a meaning of the said provision. Hetherefore submits that there is no reason or purpose for which theremand order can sustain.4.Learned counsel for respondent No.5 opposed the saidpetition on the ground that the order of remand need not be interferedwp1094.24.odt2 of 5 with as it is open for the Collector to consider the submission of bothsides and to pass appropriate order on merit. Learned AGP madesubmission referring relevant provisions of law and factual matrix of thematter.5.Herein this case Section 14(1)(j-3) of the Act has beeninvoked against the petitioner. The said provision reads thus:14. Disqualifications.[(1) No person shall be a member of a panchayatcontinue as such, who-] [This existing section 14 wasrenumbered as sub section (1) by Maharashtra 34 of2000, Section 2.]xxxx(j-3) has encroached upon the Government land orpublic property; or] [Clause (j-3) was inserted byMaharashtra 38 of 2006, Section 4 w.e.f. 21 12-2006.]6.It is clear from this provision that when the member ofgrampanchayat has encroached upon any government land or publicland, the disqualification gets attracted against him. The term publicproperty has not been defined under the provisions of the Act. The saiddefinition however is found in Prevention of Damage to Public PropertyAct, 1984. the said provision reads thus:b) "public property" means any property, whether immovableor movable (including any machinery) which is owned by, or inthe possession of, or under the control of—(i) the Central Government; or(ii) any State Government; or(iii) any local authority; orwp1094.24.odt3 of 5 (iv) any corporation established by, or under, a Central,Provincial or State Act; or(v) any company as defined in section 617 of the CompaniesAct, 1956 (1 of 1956); or(vi) any institution, concern or undertaking which the CentralGovernment may, by notification in the Official Gazette,specify in this behalf:Provided that the Central Government shall not specify anyinstitution, concern or undertaking under this sub-clauseunless such institution, concern or undertaking is financedwholly or substantially by funds provided directly or indirectlyby the Central Government or by one or more StateGovernments, or partly by the Central Government and partlyby one or more State Governments.7.It is clear from this definition of public property that theproperty belonging to the trust has not been included in the saiddefinition. The Act of 1958 specifies encroachment on government landor public property. The encroachment means the Act is wrongful and notpermissible under the law. Even in general parlance the public propertywould be the property wherein there is free and unobstructed access toany person. Herein this case the property is claimed to be the property ofthe trust. Even if the property belongs to the trust, it cannot be said thatall subjects of the state are having free and unobstructed access to thesaid property. For all practical purposes the property belongs to the trustand it is the private property of the trust. One more criteria which can beconsidered for the purpose of a property being government land or publicproperty is that in case the government desires to make use of the same,it does not require acquisition thereof. This may not be the case in case ofwp1094.24.odt4 of 5 property belonging to the trust. Similarly, the public property can beconsidered as the property which is reserved for street, parks or publicpurposes and it precludes even the owner from transferring or selling isinterest therein. When admittedly the property wherein the allegedencroachment is caused is owned by the public trust, question of thisbeing used by the government or local authority without acquisition doesnot arise. Even for the sake of the argument it is accepted that the act ofthe petitioner is a wrongful act, the same may be dealt with under theother law, but cannot attract disqualification under Section 14(1)(j-3) ofthe Act. In this regard reference can be made to the judgment of the Co-ordinate bench of this Court in case of Shantaram Narayan Raut Vs.Additional Collector, Nashik and others, 2012 (6) Mh.L.J., 790.8.In the above circumstances, there was no propriety/reasonor justification for the Divisional Commissioner to relegate the matterback for conducting inquiry. In view of the admitted facts themselves,the dismissal of the dispute by the Collector ought to have beenconfirmed by the said authority. Hence, petition has made out a case tocause interference in the impugned order. Hence, petition standsallowed. Impugned order is set aside. (R. M. JOSHI, J.)sspwp1094.24.odt5 of 5