(1) WP. 1024.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1024 OF 2010 Ramu S/o Vishwanath Thakre, Age : 51 years, Occu.: Labourer, R/o Garada Post. Brahmani, Tq. Kannad, Dist. Aurangabad .. Petitioner VERSUS 1] Additional Divisional Commissioner, Aurangabad Division Aurangabad 2] The Additional Collector, Aurangabad 3] The Tahasildar Kannad, Tq. Kannad, Dist. Aurangabad 4] Plantation Officer, Social Forest Department, Kannad, Tq. Kannad, Dist. Aurangabad 5] Sahebrao S/o Gaba Rathod, Age : 46 years, Occu.: Agri, R/o Garada Post. Brahmani, Tq. Kannad, Dist. Aurangabad 6] Shriram S/o Sonaji Dhivar, Age : Major Occu.: Agril., R/o Garada Post Brahmani, Tq. Kannad, Dist. Aurangabad 7] Gulchand S/o Hira Rathod, Age : Major Occu.: Agriculture R/o Garada Post. Brahmani, Tq. Kannad, Dist. Aurangabad .. Respondents Mr. S.W. Munde, Advocate for the Petitioner Mr. S.V. Kurundkar, AGP for the respondent-State None present for respondent nos. 5 and 6 and 7 though served ... (2) WP. 1024.2010 CORAM : V.R. KINGAONKAR, J. DATED : 10TH JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith and heard finally. 2] The petitioner is declared as disqualified to continue as Sarpanch of village Panchayat Garada under Kannad Tahsil. The Additional Collector rendered order of disqualification dated 27.11.2009 under section 14(j)(3) of the Bombay Village Panchayat Act, 1958 on the ground that the petitioner had encroached over the government land and as such incurred disqualification. The petitioner challenged the said order by filing an Appeal before the Additional Divisional Commissioner, Aurangabad. In his appeal, he filed application for interim stay. The learned Additional Divisional Commissioner rejected his application by order dated 12.1.2010. The petitioner challenges the said order. 3] Heard learned counsel for the petitioner and learned AGP. Though served, the respondent no.7 remained absent whereas the counsel for respondents 5 and 6 remained absent at the hearing. 4] The short point involved in this Petition is as to whether the impugned order rendered by the (3) WP. 1024.2010 Additional Divisional Commissioner is improper, illegal and totally unsustainable? The grant of stay is, no doubt, a discretionary matter. At the same time, it will have to be said that such discretion is required to be exercised by quasi judicial authority in keeping with the letters and spirit of the law. The discretion is not to be exercised in arbitrary manner. The interim stay is necessary only with a view to continue the status quo position if prima facie case is made out by the appellant. It is only when there is absolutely no case in favour of the appellant that the interim stay may not be granted. If he has an arguable case, then ordinarily the appellate forum shall lean in favour of continuing the status quo position. The impact of the order rendered by the Additional Collector is that the petitioner will be deprived of his right to continue in the office as Sarpanch notwithstanding the fact that he is elected as Sarpanch and has worked since February, 2008 till now. It is pertinent to notice that the order rendered by the Additional Collector reveals that the Tahsildar, Kannad did not submit any report about the encroachment. The encroachment on lands gat no. 24 and 25 is inferred on the basis of recitals of the FIR no.I-96 of 2006 and panchanama. The name of the petitioner is not shown in the cultivation column of the 7/12 extract as encroacher nor there was any evidence to show that from 2006 onwards till he was elected as Sarpanch, he continued (4) WP. 1024.2010 to remain in possession of the alleged encroached land. It may be that ultimately the material on record will go to show that he he is encroacher. The Commissioner will have to weigh the material while dealing with the appeal. Under the circumstances, it will have to be said that the petitioner indeed has arguable case and therefore, was entitled to claim status quo position till decision of the Appeal by the Additional Divisional Commissioner. Needless to say that rejection of his application for stay is improper and arbitrary. 5] In the result, the Petition is allowed. The impugned order is set aside. The interim protection granted to the petitioner is continued with direction that the appeal itself be expeditiously decided by the Additional Divisional Commissioner, as far as possible within a period of 4 months, on it’s merits without being influenced by any of the observations made in the present order and on independent consideration of the material. Rule made absolute in the above terms. No costs. Sd/- [V.R. KINGAONKAR, J.] arp