Jalna v. D. Hon, Senior

Legal Reasoning

(1) WP-5160-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5160 OF 2022Sangita Raosaheb Bhavar,Age: 47 years, Occupation: Sarpanch,R/o: At and Post Aasarkheda,Taluka Badnapur, District: Jalna...PetitionerVersus1.The Additional Divisional Commisser,Aurangabad, Aurangabad.2.The District Collector,Jalna, Taluka and District Jalna.3.Uddhav Digambar Hiwale,Age: 36 years, Occupation: Agriculture, R/o: At and Post Aasarkheda, Taluka Badnapur, District: Jalna.4.Gram Sevak,Grampanchayat Aasarkheda, At and Post Aasarkheda,Taluka Badnapur, District: Jalna...Respondents....Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon, Advocate forPetitioner.Mr. S. N. Kendre, AGP for Respondent Nos.1 and 2.Ms. Pradnya Talekar i/by M/s Talekar and Associates, Advocate forRespondent No.3.Mr. V. B. Kulkarni, Advocate for Respondent No.4.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent of theparties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner impugns the order dated 22.03.2022 passed bythe District Collector, Aurangabad in Grampanchayat DisputeNo.284/2021 as well as order dated 26.04.2022 passed by theDivisional Commissioner, Aurangabad in Appeal No.49/2022, by (2) WP-5160-2022.odtwhich the disqualification of the petitioner has been upheld interms of Section 14(G)(J) of the Maharashtra Village PanchayatAct, 1958 (for short ‘Act of 1958’).3.Mr. Hon, learned Senior Advocate appearing for thepetitioner submits that the petitioner came to be elected asSarpanch of Village Aasarkheda. The respondent no.3, who ispolitical opponent raised Grampanchayat Dispute No.284/2021seeking disqualification under Section 14 (G)(J) of the Act of 1958alleging that the petitioner’s husband has encroached upon theGovernment land/road. Mr. Hon would invite attention of thisCourt communication dated 30.08.2021 issued by Deputy ExecutiveEngineer, P.W.D., Badnapur, by which he informed DistrictCollector, Jalna asserting encroachment by the petitioner’shusband on Aasarkheda-Nivdunga highway. He would submit thatin fact there is voluminous evidence in the form of panchanamasconducted by the Grampanchayat authorities, Tahsildar and BlockDevelopment Officer, Panchayat Samiti indicating that there is noencroachment is discernible as alleged. He would further submitthat only on the basis of communication dated 30.08.2021 inferenceis drawn about encroachment made by the petitioner’s husbandand disqualification order has been passed. The AppellateAuthority i.e. Divisional Commissioner, Aurangabad withoutlooking to the grounds of Appeal, mechanically confirmed theorder. Mr. Hon would submit that in absence of jointmeasurement, no inference can be drawn as regards to theencroachment on public road.4.He would further submit that elected representative cannotbe unseated by executive action in absence of impeccable evidence.He would further point out that this Court granted stay to theexecution of disqualification order after recording detailed reasons (3) WP-5160-2022.odtand the petitioner is continued as Sarpanch. He would, therefore,urge to allow the Writ Petition and set aside the impugned order.To buttress his submissions, he relies upon the judgment of thisCourt in Writ Petition No.69/2020 (Prashant S/o. EknathGhule Vs. The Additional Commissioner and Ors.) dated15.01.2020.5.Per contra, Ms. Talekar, learned Advocate appearing forrespondent no.3, vehemently submits that District Collector causedindependent enquiry into the complaint made by respondent no.3.In pursuance of the directions given by the District Collector, videhis communication dated 20.08.2021, the Deputy ExecutiveEngineer, P.W.D., Badnapur caused spot inspection and drawnpanchanama, which records existence of construction of petitionershusband admeasuring 10 x 8 feet, having encroachment upto 7 feeton the public road. Ms. Talekar, learned Advocate would furthersubmit that both the authorities have concurrently recordedfindings of facts leading to the disqualification of the petitioner.She would further submit that the Authority, who considered thecomplaint is not expected to render full-fledged enquiry like CivilSuit or Criminal matter. The finding of the fact is based onsufficient evidence. The petitioner has not rebutted the materialon record to prove her innocence. She would further point out thatafter spot inspection by the Deputy Executive Engineer, P.W.D.,Badnapur, the petitioner has removed encroachment withintention to vanish evidence. To buttress her submissions sherelies upon the judgment of this Court in case of Shobha PradeepPatil (Gaikwad) and Others Vs. Additional DivisionalCommissioner, Pune and Others1 and judgment in case ofNikhil Uttam Undre Vs. State of Maharashtra and Others2.12018 (4) Mh.L.J. 433.2(2023) 6 Mah LJ 454. (4) WP-5160-2022.odt6.Having considered submissions advanced by the learnedAdvocates for the respective parties and after going through thedocuments tendered into service, it can be observed that thepetitioner is elected Sarpanch of the Grampanchayat, Aasarkheda.The respondent no.3 made representation to Deputy Engineer,P.W.D., Jafrabad alleging encroachment by the petitioner’shusband on Aasarkheda-Nivdunga road. In pursuance torespondent no.3’s representation, Deputy Executive Engineer,P.W.D., Jafrabad informed him that subject portion of road fallswithin the jurisdiction of the Deputy Executive Engineer, P.W.D.,Badnapur. Consequently, respondent no.3 made representation toDeputy Executive Engineer, P.W.D., Badnapur, who addressedcommunication dated 23.05.2021 to petitioner confirming suchencroachment. Relying on the aforesaid communication,respondent no.3 raised Grampanchayat Dispute, allegingdisqualification of the petitioner under Section 14(1)(J-3) of the Actof 1958. In pursuance of the dispute filed by respondent no.3,District Collector, Jalna issued communication to Tahsildar and inturn to Deputy Executive Engineer, P.W.D., Badnapur to conductspot inspection and submit report regarding alleged encroachment.On 30.08.2021, Deputy Executive Engineer, P.W.D., Badnapursubmitted his letter confirming encroachment upto 7 feet onAasarkheda-Nivdunga Highway by petitioner’s husband. TheDistrict Collector-respondent no.2 relying upon the communicationdated 30.08.2021 concluded that the petitioner encroached uponpublic road and consequently, declared her to be disqualified. Thepetitioner filed Appeal before the Divisional Commissioner,however, the same has been dismissed.7.Perusal of the findings recorded by the District Collector inhis order dated 22.03.2022 shows that he based decision only oncommunication dated 30.08.2021 issued by the Deputy Executive (5) WP-5160-2022.odtEngineer, P.W.D., Badnapur. The contents of document annexedwith the said communication are not discussed. The collector hasnot independently assessed material on record. No independentconclusion is arrived after applying his own mind to the materialtendered before him by various Authorities.8.Perusal of communication dated 30.08.2021 merely recordthat on spot inspection, encroachment on public road by thepetitioner’s husband has been noted. Pertinently, communicationstates photo print and satellite print was attached. However itdoes not refer to panchanama drawn on the spot. Copy ofpanchanama placed by respondent no.3 alongwith affidavit in replydoes not seem to be the part of communication dated 30.08.2021.The list of annexures or contents of said communication nowhererefers to such panchanama. The panchanama is undated. If thepanchanama would have been prepared in presence of TechnicalOfficer like Deputy Executive Engineer, relevant technical detailsand map of measurement containing width of road, alignment fromcenter, location of encroachment could have been set-out withperfection. The language and manner of panchanama clearlydepict that it has been prepared by non-technical person.Pertinently, there is no reference of such panchanama even in theorder passed by the District Collector. There is nothing to showthat the petitioner was served with notice before drawingpanchanama. Although panchanama refers that the husband ofthe petitioner and the other family members refused to accept thenotice, no particulars of person who attempted such service aregiven. Independent panchanama depicting refusal to accept noticeis not carried. The very panchanama becomes unacceptable anddoubtful document. (6) WP-5160-2022.odt9.Pertinently, there was no notice by the PWD Authorities tothe petitioners husband asserting encroachment on public road orasking him to remove the same at any point of time. The so calledletter is given only when respondent asked for it. The finding ofDistrict collector as regards to the encroachment by petitioner’shusband is not sustainable for want of acceptable material.10.Although there is force in contention of Ms. Talekar thatQuasi Judicial Authorities discharging functions under the VillagePanchayat Act are not expected to hold expertise like Civil orCriminal Courts or principals of evidence act cannot be strictlyapplied in such proceeding, it cannot be ignored that when it comesto removal of elected representative from the office by executiveaction, the concrete evidence must come on record in support offacts constituting disqualification. It is trite that, removal of theelected representative has serious repercussion on the person inoffice. Further it takes away valuable right of representation of therespective Constituency by the person of their choice. Therefore, insuch cases reasonable standards of procedure and proof are needsto be adhered. Removal from public office without impeccablematerial and sufficient reasons cannot be countenanced. In light ofthe aforesaid observations, the impugned orders are notsustainable in law. Consequently, Writ Petition deserves to beallowed. Hence, the following order:ORDERa.Writ Petition is allowed in terms of prayer Clause (B).b.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR) JUDGE Devendra/July-2024