High Court

Legal Reasoning

1 905-WP-3630-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3630 OF 2024Sindhubai w/o. Dadasaheb Shinde,Age 60 years, Occu. Sarpanch,R/o. At Murma, Post Pachod,Taluka Paithan, District Aurangabad..Petitioner (Original Applicant)Versus1.The Additional Divisional Commissioner-2,Aurangabad2.The District Collector,Aurangabad, District Aurangabad3.The Village Development Officer,Grampanchayat Murma,Taluka Paithan, District Aurangabad4.Gopichand s/o. Dagadu Aher,Age 42 yiears, Occu. Social Worker,R/o. At Murma, Post Pachod, Taluka Paithan,District Aurangabad..Respondents(Original Respondents)Mr. R. V. Gore, Advocate for the Petitioner;Mr. P. D. Patil, A.G.P. for Respondents No.1 and 2;Mr. V. H. Pathade, Advocate for Respondent No.3;Mr. Y. V. Kakade, Advocate holding for Mr. S. A. Nandure, Advocate for Respondent No.4CORAM :S. G. MEHARE, J.DATE:03-05-2024PER COURT :-1.Heard the learned counsel for the petitioner, the learnedA.G.P. for respondents No.1 and 2 and the learned counsels forrespondents No.3 and 4. 2 905-WP-3630-24.odt2.The petitioner was elected as Member of Village Panchayat,Murma on 15.12.2020. Respondent No.4 had filed a complaintunder Section 14(1)(j-3) and 16 of the Maharashtra VillagePanchayats Act, 1959 (for short, “the Act”) to respondent No.2 /the Collector alleging that the petitioner’s husband hasencroached upon the Government land bearing Gut No.251 and237 of the village and she was residing with her husband in thesaid house property.3.Respondent No.2 directed to make inquiry. The concernedOfficer made inquiry. The Tahsildar, Paithan referred to the inquirymade by Gramsevak, who had opined that at this juncture inVillage Panchayat record, there is no name of the petitioner andher husband showing possession of Government land. In otherwords, it has been contended that presently the record of VillagePanchayat does not show that the petitioner and her husband arepossessing the Government property.4.The petitioner was served with notice. She appeared beforerespondent No.2/the Collector. However, she did not file herwritten statement. Since she failed to conduct the proceeding,respondent No.2, by order dated 01.01.2024, allowed theapplication filed by respondent No.4 and declared the petitioner tobe disqualified to continue as a Member of Village Panchayat,under Section 14(1)(J)(3) and 16 of the Act. 3 905-WP-3630-24.odt5.Against the said order, the petitioner preferred an appealbefore respondent No.1/ Additional Commissioner-2, Aurangabad.Respondent No.1 also believed the material placed on record anddismissed her appeal.6.The bone of contention of the petitioner is that after the spotinspection was done, respondent No.2/the Collector did not issueher a fresh notice. Her husband was attending the proceeding.However, he died during pendency of the case before respondentNo.2. Therefore, no opportunity has been granted to the petitionerto rebut the allegations levelled against her.7.Referring to the report of the Gramsevak and the Tahsildar,learned counsel for the petitioner submits that at the relevanttime, there was no encroachment on the Government land. Onedocument of 2000 in which the name of husband of the petitionerwas shown as possessor of the Government land was produced.He submits that a new document i.e. sale deed of the houseproperty No.249 was placed first time before respondent No.1.She had no opportunity to rebut the validity of that document. Itmay be a created document. The inquiry under Sections 14(1)(j-3)and 16 of the Act, is a summary inquiry. In a summary inquiry, thelegality and validity of such document cannot be adjudicated. Helastly submits that both judgments are against the law and notfollowing the principle of natural justice; hence, liable to set aside. 4 905-WP-3630-24.odt8.Learned counsel for respondent No.4 submits that thelearned counsel for the petitioner has not read the reportcompletely. In the report of the Circle Officer addressed toTahsildar, it has been specifically mentioned that Online Namuna-8and the tax assessment register for the property No.251 wasproduced. The Government was the owner of that property andthe husband of the petitioner was possessing that property. Thatwas the evidence against the petitioner. He also referred to theGram Panchayat’s record and submits that it clearly establish thatthere was an encroachment on the Government land. Thehusband of the petitioner created the document/agreement toevade her disqualification. This document has been created afterthe election of the petitioner as a Member. Sufficient opportunitywas granted to the petitioner, but she voluntarily did not filewritten statement. Once the notice is served, there is no provisionto issue notice again and again to the parties. It is the party toappear before the authority on each date. He also submitted thatthe petitioner did not produce evidence in rebuttal showing thatshe is not residing on the disputed property. Therefore, an adverseinference may be drawn.9.In reply, the learned counsel for the petitioner submits thatthere was no evidence, whether the petitioner was sharing theGovernment property with her husband. Therefore, the view in thecase of Janabai Rathod would not be helpful. 5 905-WP-3630-24.odt10.Perused the papers placed on record. 11.The Grampanchayat maintained the record of the propertiesand also the record of possessors of the properties for the purposeof assessing the tax. Namuna-8 of house property No.251 issuedon 28.08.2023 clearly shows that the husband of the petitionerwas in possession of the Government land. This was thepossession of 2023. 12.So far as house property No.237 is concerned, the villagepanchayat’s record/Namuna-8 shows that it was the Governmentproperty and possessed by the deceased husband of thepetitioner. That apart, one another Namuna-8 about house No.251shows that one Siddheshwar Manohar Gore was the possessor ofsaid property. The document of sale deed/agreement wasexecuted by the husband of the petitioner in favour ofSiddheshwar, who was admittedly his son-in-law. This documentdated 26.12.2022 is apparently after the election of the petitioneras a Member of Village Panchayat. In the report of Gramsevak, hesimply said that on the day of inspection, the Village Panchayathas no record showing that the petitioner or her husband waspossessing the Government land. However, the document placedon record clearly indicates that he had encroached upon theGovernment land and with ill intention, probably to evade thedisqualification, executed sale deed/agreement, dated 26.12.2022in favour of son-in-law, transferring the house property which is 6 905-WP-3630-24.odtowned by the Government. 13.Learned counsel for respondent No.4 was right in submittingthat the private party has no right to sell or transfer theGovernment land. 14.Law does not provide for inviting the litigant again and againby issuance of notice by the authority. Therefore, there is nosubstance in the submission of the learned counsel for thepetitioner that after inspection of spot, respondent No.2/Collectordid not issue her a fresh notice. It seems that her deceasedhusband was attending the proceeding. Probably, he may beacting as a proxy member of the Village Panchayat for and onbehalf of his wife. It is presumed, unless contrary is proved, thathusband and wife resides under one roof. The petitioner did notproduce the evidence in rebuttal that she never shared the houseproperty with husband and she was residing at another placewhich was not the Government land. 15.Considering the facts of the case and the relevant provisionsof law, the Court is of the view that there is no error of law in thefindings and the impugned judgments and orders. The petitionbeing devoid of substance stands dismissed.16.No order as to costs. ( S. G. MEHARE, J. )rrd