High Court
Facts
wp-8120-2025.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION No.8120 OF 2025Ushabai Santosh Wagh Age: 37 years, Occu.:- Sarpanch of Grampanchyat Salve, R/o- Garmpanchayat House No. 376, Salve, Tq. Shindkheda, District- Dhule...PetitionerVERSUS1.The Collector, DhuleTq. & District- Dhule2.The Divisional CommissionerNashik.3.The Grampanchyat SalveTq- Shindkheda, District- Dhule Through the Gramsevak4.Ramesh Khanderao ShindeAge-Major. Occc-R/o- Salve, Tq- Shindkheda, District- Dhule..Respondents...Advocate for the Petitioner : Mr. M.S. ShahAGP for Respondent/State : Mr. S.P. JoshiAdvocate for Respondent No.4 : Mr. M.V. Bhamre… CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON : JULY 14, 2025 PRONOUNCED ON : AUGUST 01, 2025JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finallywith consent of parties. wp-8120-2025.odt(2)2.The petitioner impugns order dated 23.06.2025 passedby Divisional Commissioner, Nashik in Gram Panchayat Appeal No.37of 2025 upholding judgment and order dated 06.02.2025, passed byDistrict Collector, Dhule in Dispute Application No.03 of 2024,thereby declaring petitioner disqualified to hold the post of Memberand Sarpanch of Village Salve, Taluka Shindkheda, District Dhule. 3.Brief facts giving rise to present petition can be stated asunder :The petitioner has been elected as Sarpanch of VillagePanchayat in the year 2023. Respondent no.3 filed a DisputeApplication No.03 of 2024 before District Collector, Dhule, allegingdisqualification of petitioner under Section 14 (1)(J-3) ofMaharashtra Village Panchayat Act, 1958 (‘Act of 1958’ for short) andsought her removal from the post of Sarpanch and Member of VillagePanchayat on the ground that father-in-law of petitioner has raisedexcess construction and encroached over government land. Thelearned Collector issued notice. The petitioner responded to saidnotice and filed her reply denying allegations of encroachment. Sheexplained that Property No.357 was allotted to father-in-law undervillage extension scheme in the year 1976. The plot ad-measuring 50x 30 is in his possession and he has raised construction of 40 x 12over said plot. Petitioner has specifically pleaded that she isseparately residing along with her husband since last 12 years in a wp-8120-2025.odt(3)rented house and she is unconcern with construction raised by herfather-in-law. In support of her contentions, she has placed on recordnotarized lease agreement and copy of ration card depicting herseparate residence. The learned Collector relied upon report of BlockDevelopment Officer and observed that father-in-law of petitioner hasraised total construction of 1545 sq.ft. beyond plot area within hisownership. Eventually, passed the order of disqualification. Thelearned Divisional Commissioner confirmed said order of DistrictCollector in Gram Panchayat Appeal No.37 of 2025 filed by petitioner.4.Mr. M.S. Shah, learned advocate appearing for petitionerassails impugned order on two counts. According to him, petitioner isa women, who has been elected as Sarpanch, therefore, attempts aremade to unseat her on the basis of false and frivolous allegations. Hewould submit that petitioner is residing separately from her father-in-law since more than 12 years, petitioner cannot be disqualified for hisact. Mr. Shah would further submit a copy of ration card and leaseagreement placed on record before Collector along with reply iscompletely ignored. He would further point out that there is noauthentic material to depict that construction raised by father-in-lawof petitioner is an encroachment on government land, which isessential requirement to attract disqualification under Section 14 (1)(J-3) of the Act of 1958.
Legal Reasoning
wp-8120-2025.odt(4)5.Per contra, Mr. M.V. Bhamre, learned advocate appearingfor respondent no.4 relying upon the contents of affidavit in replyfiled by respondent no.4 would urge that petitioner’s father-in-law hascaused excess construction of about 580 sq.ft. than the area of his plotas per record of Village Panchayat. The photographs indicate thattoilet and bathroom which was in existence at the time of filingcomplaint is now removed. In support of his submissions, he reliesupon judgment of this Court in case of Sandip Ganpatrao Bhadadeand Ors Vs. Additional Commissioner, Amravati Division, Amravatiand Ors reported in 2017 (1) Mh.L.J. 79.6.Having considered submissions advanced and on perusalof documents tendered into service before this Court, it can beobserved that petitioner is disqualified under Section 14 (1) (J-3) r/w16 of the Act of 1958 from holding post of Member as well asSarpanch of Village Panchayat. The gist of allegations againstpetitioner is that in year 1976 plot no.7 admeasuring 30 x 50 wasallotted to Dipa Kadu Patil. The father-in-law of petitioner namelyBhagwan Dipa Patil inherited the aforesaid property and resides inhouse along with his son. Bhagwan Dipa Patil had actually receivedarea admeasuring 15 x 50 sq.ft. in partition with his brother DevidasDipa Patil. According to respondent/complainant, the father-in-law ofpetitioner is in possession of area admeasuring 40 x 12 + 40 x 12sq.ft. and when the husband of petitioner was Up-sarpanch, the area wp-8120-2025.odt(5)of plot has been illegally enhanced in Village Panchayat record. It iscontention of complainant that plot no.6 which was in the name ofSupdu Patil, but father-in-law of petitioner illegally acquired saidproperty from Bhivsen Supdu. 7.The District Collector caused inquiry into the matterthrough the Block Development Officer and observed that althoughfather-in-law of petitioner owns House No.397 having area of 960sq.ft., on measurement area of construction it was found 1545 sq.ft.As such, there is excess construction of 585 sq.ft. The learnedDivisional Commissioner also reiterated aforesaid observations andrelying upon the law espoused in case of Janabai Vs. AdditionalCommissioner and Others reported in 2018 AIR (SC) 5068, affirmedthe disqualification.8.It is trite that elected representative cannot be removedby administrative action unless there is impeccable materialconstituting a disqualification. In present case, petitioner hasspecifically raised defence that she is not residing with her father-in-law and placed on record a copy of ration card which independentlyshows unit in name of her husband and two sons. The said rationcard is issued on 30.01.2017. The copy of lease agreement betweenhusband of petitioner and Suresh Bhata Patil dated 01.11.2018 showsthat House Property No.376 is leased out in the name of petitioner’shusband having constructed area of 40 x 18 sq.ft. The learned wp-8120-2025.odt(6)Collector in his order simply observed that petitioner could notproduce evidence that there is partition between her husband andfather-in-law and therefore, relying upon the preposition of law whichwas in case of Janabai (supra) holds her disqualified. Surprisingly,there is no observation as to documents tendered in defence depictingseparate residence of petitioner. The impugned order goes withpresumption that petitioner resides in joint house with her father-in-law. The learned Collector observed that petitioner has failed toproduce evidence that she is not residing with her father-in-law. Suchobservations cannot be countenanced. Pertinently, Block DevelopmentOfficer’s report nowhere throw light on defence of petitioner that sheis separately residing in a rented premises. It only concentrates uponmeasurement of House No.397 owned by petitioner’s father-in-law. 9.Even on careful reading of report of Extension Officerdefinite conclusion cannot be drawn that excess construction onhouse property no.397 is on government land. It does not show howgovernment land is affected and how much construction area isactually encroachment on government land. The entire report simplysuggest that there is excess construction of 585 sq.ft. In thisbackground, the observations of Hon’ble Supreme Court in case ofJanabai (supra) that if a member remains in occupation of anencroached property, he/she has a conflict of interest and even theencroachment made by a person and when a person shares an wp-8120-2025.odt(7)encroached property by residing there, he/she has to be treated asdisqualified cannot be applied against petitioner. In present case,there is nothing to show that petitioner is residing in a house alongwith her father-in-law or she is benefited out of such encroachment.On the contrary, there is material to hold that atleast from 2017 i.e.much prior to her election, she is residing separately. She along withher husband and children constitute a separate unit from her father-in-law. Therefore, even assuming that petitioner’s father-in-law hascaused encroachment on government land, petitioner who is a ladyelected as Sarpanch would not have been disqualified. 10.In case of Keshav Irabaji Taru Vs. The State ofMaharashtra and Others in Writ Petition No.5247 of 2024 dated18.03.2025, after giving reference to the law laid down by Hon’bleSupreme Court in case of Janabai (supra), this Court observed in para5 as under :“5.There cannot be any dispute made with regard to the lawsettled by the Hon'ble Supreme Court in case of Janabai Vs.Additional Commissioner and others in Civil Appeal No. 6832 of2018 that even if the member or the office bearer of the GramPanchayat has not himself carried out the encroachment on theGovernment land however, If he remains in occupation of theencroached property is said to be in conflict of interest. It isthus, clear that only in case of member of Gram Panchayat, it isfound to be in occupation of the encroached property andencroachment of which is not caused by himself, the record ofthe disqualification would get attracted against him underSection 14(1)(j-3) of the Act. Here, in this case, as it appearsfrom the order passed by the Collector that there was evidenceto indicate that the alleged encroachment has not been causedin Gut No. 80 by the petitioner but it is said to have been done wp-8120-2025.odt(8)by his father. In such circumstances, there ought to have beenevidence to indicate that petitioner is residing in the saidpremises which is allegedly encroached on the Government landLeave apart, such evidence, in fact there is positive evidence toindicate that the petitioner is residing in House No. 3, which is adifferent premises than the allegedly encroached premises.”11.In light of aforesaid observations, if facts of present caseare appreciated, it is difficult to hold that petitioner has incurreddisqualification, particularly in absence of material to indicate thatshe is residing along with her father-in-law in a house found to haveexcess construction, more so, in absence of evidence indicating suchconstruction to be made on government land. In result, writ petitionis allowed in terms of prayer clause (C) and (D). 12.Rule is made absolute in above terms. (S.G. CHAPALGAONKAR, J.)Mujaheed//