(1) WP. 1548.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1548 OF 2010 Ramesh S/o Eknath Nichit Age : 31 years, Occu.: Agri., R/o Ambelohal, Tq. Gangapur, Dist. Aurangabad .. Petitioner VERSUS 1] The State of Maharashtra Revenue Department, Mantralaya, Mumbai Copy to be served on Govt. Pleader, High Court of Bombay, Bench at Aurangabad 2] Additional Commissioner, Aurangabad 3] Additional Collector, Aurangabad 4] Kisan Umaji Gavali Age : 80 years, Occu.: Agri R/o Shevali, Tq. and Dist. Jalna .. Respondents Mr. S.G. Shinde, Advocate for the Petitioner Mr. D.R. Korde, AGP for respondent nos.1 to 3-State Mr. S.D. Ghayal, Advocate for the respondent no.4 ... CORAM : V.R. KINGAONKAR, J. DATED : 16TH JUNE, 2010 ORAL ORDER:- 1] Heard learned counsel. The petitioner challenges the orders rendered by the Additional (2) WP. 1548.2010 Collector, Aurangabad and the Additional Commissioner, Aurangabad whereby he has been disqualified to continue as Member of Gram Panchayat, Ambelohal. 2] The petitioner was served with a notice on complaint made by the respondent no.4 that he shall explain as to why he be not disqualified due to the alleged encroachment on the Government land bearing gat no.1. He denied the alleged encroachment. He further contended that the encroachment alleged was made in 2004 as per the allegations and therefore, disqualification could not be effected under the provisions of section 14(1)(j)(3) of the Bombay Village Panchayat Act, 1958. Sub-Section (1)(j)(3) provides for disqualification of Member of Village Panchayat who has encroached upon the Government land or public property. 3] The enquiry contemplated under the relevant provisions is a summary enquiry. The learned Additional Collector noticed on 1.9.2004 the petitioner was served with a notice to remove the encroachment over 10’ X 15’ plot of the Government land bearing gat no.1. The petitioner did not give any reply to that notice. The Additional Collector, also considered the entries in the Village Panchayat record and Namuna no.8 which show that the petitioner has constructed a portion of the plot admeasuring 9’ (3) WP. 1548.2010 X 16’. The Village Panchayat record coupled with report of the Block Development Officer, Panchayat Samiti, Gangapur also indicated existence of the shop on the encroached portion. 4] It is argued by learned counsel that earlier notice was issued to the petitioner for removal in respect of T.V. and Radio repairs shop whereas, the report of the Block Development Officer Shows that there was a shop of fertilizers. He would contend that such inconsistency goes to show absence of any such encroachment. I do not agree. The first notice was issued in 2004 when there was a T.V. and Radio repairing shop found on the encroached plot. It is more probable that prior to 2006 business of fertilizers was started and, therefore, the user was changed by the petitioner. 5] The only question is whether there is encroachment caused by the petitioner or not? The reports and the material collected by the Additional Collector sufficiently demonstrate the alleged encroachment. It is argued that sub-section (j)(3) is not of retrospective character and therefore disqualification could not be foisted on the petitioner. I do not agree. Any kind of encroachment is continuous activity until it is removed. The words used in sub-section (j)(3) “has encroached upon the Government land” would show that (4) WP. 1548.2010 the disqualification can be attributed when the encroachment is found to exist. The petitioner never came out with a case that he had removed encroachment prior to his election as member of the Village Panchayat. 6] Under the circumstances, the concurrent judgments and orders of the learned Additional Collector and the learned Additional Commissioner need not be interferred with in the exercise of the extra-ordinary jurisdiction available under Article 226 of the Constitution of India. The Writ Petition is therefore, dismissed. The Collector, Aurangabad is directed to remove all the encroachments over gat no.1 if they are not so far removed. 7] The learned AGP to submit a report to this Court about removal of encroachment within a period of 1 month. Learned AGP. may act on authenticated copy of this order, duly authenticated by the Court Sheristedar. Sd/- [V.R. KINGAONKAR, J.] arp