High Court
Legal Reasoning
11-wp-5098-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5098 OF 2022Vimalbai Manusingh ThakurAge: 58 years, Occu: Agriculture and Sarpanchof Village Panchayat,R/o: Kalambar (Bu), Tq.: Loha,Dist: Nanded.…..PETITIONERVERSUS1.The Additional Commissioner,Aurangabad2.The Collector, NandedCollector Office, Nanded.3.Block Development Officer,Panchayat Samiti LohaTq. Loha, Dist: Nanded.4.Village Development Officer,Village Panchayat office, Kalambar (Bu),Tq. Loha, Dist: Nanded.5.Sunil Govindappa MukkanwarAge: Major, Occu: Agriculture & Memberof Village Panchayat, Kalambar (Bu)R/o. Kalambar (Bu) Tq: Loha,Dist: Nanded.…..RESPONDENTS______________________________________________________Mr. M. V. Salunke h/f Mr. V. D. Salunke, Advocate for thePetitionerMr. N. D. Raje, AGP for Respondents-StateMr. S. B. Pulkundwar, Advocate for Respondent no.3Mr. V. B. Kulkarni, Advocate for Respondent no.5______________________________________________________
Legal Reasoning
21-wp-5098-2022WITHWRIT PETITION NO. 5100 OF 2022Manusingh Sardarsingh ThakurAge: 62 years, Occu: Agriculture and Memberof Village Panchayat,R/o: Kalambar (Bu), Tq.: Loha,Dist: Nanded.…..PETITIONERVERSUS1.The Additional Commissioner,Aurangabad2.The Collector, NandedCollector Office, Nanded.3.Block Development Officer,Panchayat Samiti LohaTq. Loha, Dist: Nanded.4.Village Development Officer,Village Panchayat office, Kalambar (Bu),Tq. Loha, Dist: Nanded.5.Sunil Govindappa MukkanwarAge: Major, Occu: Agriculture & Memberof Village Panchayat, Kalambar (Bu)R/o. Kalambar (Bu) Tq: Loha,Dist: Nanded.…..RESPONDENTS______________________________________________________Mr. M. V. Salunke h/f Mr. V. D. Salunke, Advocate for thePetitionerMr. N. D. Raje, AGP for Respondents-StateMr. S. B. Pulkundwar, Advocate for Respondent no.3Mr. V. B. Kulkarni, Advocate for Respondent no.5______________________________________________________
Decision
31-wp-5098-2022CORAM:ROHIT W. JOSHI, J. DATED:07TH JULY, 2025ORAL JUDGMENT :-.The petitioner in the Writ Petition No.5098 of 2022 iswife of petitioner in Writ Petition No.5100 of 2022. Both thepetitioners were initially elected as Members of GramPanchayat, Kalambar, (Bu) Tq. Loha Dist. Nanded.Thereafter, the petitioner in Writ Petition No.5098 of 2022was elected as Sarpanch of the Gram Panchayat. Therespondent no.5 in both the petitions had made an applicationseeking disqualification of the petitioners on the ground thatthey had made encroachment over public properties. Theallegation against petitioner in Writ Petition No.5098 of 2022is that she has made encroachment over property nos.596 and759. The allegation against the petitioner in Writ PetitionNo.5100 of 2022 is that he had encroachment over theproperty nos.376, 377 and 378 of (Gaothan) and SurveyNo.595, Namuna No.103 i.e. property no.103 recorded inform no.8A in the record maintained by the concerned GramPanchayat. On being noticed in the matter, the petitioner inWrit Petition No.5098 of 2022 filed reply denying the fact of 41-wp-5098-2022encroachment it is stated in paragraph no.2 of the reply asunder:2-gs dh] fookn eseksP;k ifjPNsn dz-3 e/khy etdqj/kkankr [kksVk vlwu izfroknhyk ekU; ukgh- dkj.k izfroknhusxzkeiapk;rP;k feGdr dz- 596 oj o R;kp izek.ks feGdrdz 759 g;k tkxsoj dks.kR;kgh izdkjps vukf/kd`r vfrdze.kdsysys ukgh- lnj tkxsph ekydh gh izfroknhP;k ukokus vkgs-izfroknh gk lnj feGdrh ckcr xzkeiapk;r dk;kZy;krnjo”khZ djkpk Hkj.kk djrks- Eg.ktsp lnjhy feGdr ghizfroknhph fu;ekuqdqy o dk;ns’khj gDdkph feGdr vkgs-R;keqGs izfroknhus ojhy iSdh dks.kR;kgh feGdrhojvukf/kd`r vfrdzek.k dsysys ukgh- R;keqGs fooknhpk fooknvtZ [kksVk] pqdhpk] o csdk;ns’khj vlY;keqGsQsVkG.;kr ;kok-Similarly, the petitioner in Writ Petition No.5100 of2022, has filed reply wherein, in paragraph nos.2 and 4, it isstated as under:2-gs dh] fookn eseksP;k ifjPNsn dz-3 e/khy etdqj/kkankr [kksVk vlwu izfroknhyk ekU; ukgh- dkj.k izfroknhusxzkeiapk;rP;k feGdr dz-376] 377] 378 R;kp izek.ks ‘ksrtehu losZ ua-595 xko uequk ua 103 g;k tkxsoj dks.kR;kghizdkjps vukf/kd`r vfrdzek.k dsysys ukgh- lnj tkxsphekydh gh izfroknhP;k ukokus vkgs- izfroknh gk lnj 51-wp-5098-2022feGdrh ckcr xzkeiapk;r dk;kZy;kr njo”khZ djkpk Hkj.kkdjrks- Eg.ktsp lnjhy feGdr gh izfroknhph fu;ekuqdqyo dk;nsf’kj gDdkph feGdr vkgs- R;keqGs izfroknhus ojhyiSdh dks.kR;kgh feGdrhoj vukf/kd`r vfrdze.k dsysysukgh-4-gs dh] fookn eseksP;k ifjPNsn dz-6 e/khy etdqj/kkankr [kksVk vlwu izfroknhyk ekU; ukgh- dkj.k xkokrhy‘ksr tehu losZ ua-595 g;k tkxsr feGDr dz-103 ojizfroknhus vukf/kd`r vfrdze.k dsysys ukgh- ,danjhrizfroknhus xzkeiapk;r feGdr dz-376] 377] 378 rlspfeGdr dz-103 g;k feGdrhoj vukf/kd`rfjR;k vfrdze.kdsysys ukgh- g;k feGdrhph uksan xzkeiapk;rP;k uequk ua-8e/;s izfroknhP;k ukokph uksan vlqu izfroknh gk R;k tkxspkVWDl Hkjrks- R;keqGs fooknhpk fookn vtZ [kksVk o pqdhpkvlY;keqGs QsVkG.;kr ;kok v’kh fouarh vkgs-2.Perusal of the replies will demonstrate that thepetitioner in Writ Petition No.5098 of 2022 claims ownershipover suit property nos.596 and 759. It is categorically statedthat she is paying taxes with respect to both the propertiesand on that basis, it is stated that in view of fact that she ispaying taxes for the said properties regularly, she has rightsover the said property in accordance with law. In view of this,the statement is made that she cannot be said to be anencroacher with respect to the said properties. 61-wp-5098-20223.The reply by the petitioner in Writ Petition No.5100 of2022, who is the husband of petitioner in 5098 of 2022 is alsoon similar lines. He too claims entitlement to the propertieson the ground that he is regularly paying taxes with respect tothe properties alleged to be encroached by him. Like the wife,the case of husband is also that because he is paying the taxes,he cannot be said to be an encroacher.4.The Collector, who is the Competent Authority to ruleon the issue of disqualification has held that both the husbandand wife have incurred disqualification on account ofunauthorized encroachment over the Government/GramPanchayat lands. 5.The petitioners have preferred appeals against therespective orders passed against them under Section 16 of thesaid Act. The Appellate Authority i.e. the Additional DivisionalCommissioner has dismissed both the appeals.6.Mr. Salunke, learned Advocate for the petitionerscontends that in both the matters, spot inspection wasdirected to be conducted by the Block Development Officer.He contends that the inspection reports by the Block 71-wp-5098-2022Development Officer do not indicate the exact nature ofalleged encroachment. He states that there is no allegation ofany construction over the alleged lands or even erection offencing etc. to infer physical possession of the petitioners overthe said lands. He attacks the findings recorded by thelearned Collector contending that the Collector has notapplied his mind independently and has merely passed orderof disqualification placing reliance on the report by the BlockDevelopment Officer. His contention is that the order passedby the Collector does not indicate application of independentmind. The contention of the learned Advocate with respect tothe appeal order passed by the Additional DivisionalCommissioner is also the same. He therefore contends thatboth these orders are unsustainable and are liable to bequashed.7.Per contra, the learned Advocates appearing for therespondents justify the orders. Principal contention of learnedAdvocate for the respondent no.5 is that in the replies filed byboth the petitioners before the Collector, the fact ofencroachment is expressly admitted. He has referred to theaforesaid paragraphs and the replies of both the petitioners. 81-wp-5098-20228.Having heard the respective submissions as aforesaidand on perusal of the record of the case as also both theorders impugned, I am of the considered opinion that there issubstance in the submission of Mr. Salunke that the learnedAuthorities have not recorded proper findings on the aspect ofencroachment. The learned Collector has merely recorded asthe Block Development Officer has stated in the report thatthe petitioners have made encroachment in respective lands.It is then observed by the Collector that there are entries withrespect to this encroachment in the Gram Panchayat records,which have since then not been corrected by the petitionersalthough the petitioners hold the office of Sarpanch andMember in the Gram Panchayat. The appeals are also rejectedrecording similar findings.9.Normally, the petition would have been allowed in viewof such findings recorded by the authorities. However, in thepresent case, I am not inclined to interfere with the impugnedorders in view of express statement in the reply admittingpossession over lands which are not owned by the petitioners.The contention of the petitioners as is apparent from the replyis that they cannot be termed to be encroachers because they 91-wp-5098-2022are paying taxes with respect to the lands which are in theirpossession. It is now well settled that only because a personin wrongful possession of property belonging to theGovernment or Public Authority makes payment of taxes orfine for such possession, the possession cannot be said to belegal or authorized. Such possession despite the payment oftaxes or fine shall continue to be an unauthorized possessionor an encroachment.10.Shri Salunke has contended that the petitioners areowners of properties bearing Gram Panchayat propertyno.596, 376, 377 and 378. However, admittedly, thepetitioners are not owners of property no.759 and SurveyNo.595 i.e. property no.103.11.Mr. Salunke further contends that the petitioners cannotbe said to be encroachers of the subject property havingregard to Section 53 of the Maharashtra Village PanchayatsAct. He contends that physical possession over the property isnecessary in order to hold that a person has encroached overpublic property. The contention must fail, having regard tothe express words employed under Section 53. All the words 101-wp-5098-2022will imply that provision contemplates encroachment of everynature and not only encroachment by making constructionactivity over the property. The contention of Mr. Salunke istherefore liable to be rejected.12.Perusal of the reply will indicate that these propertieswhich are admittedly not owned by the petitioners are theproperties of Gaothan, are in possession of the petitioners. Inview of the aforesaid, since facts admitted in the repliesindicate encroachment by the petitioners over Public property,this Court is not inclined to show any indulgence in favour ofthe petition. Both the Writ Petitions are therefore dismissed.13.Civil Application, if any, stands disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025