1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11177 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 11177 OF 2010 *** 1. Heard Advocate Shri Gore for the Petitioner, Advocate Shri M. S. Taur for Respondent no.4, Advocate Shri S. D. Karkare holding for Advocate Mr. Irale for Respondent No.5, Advocate Shri Kokate for Respondent No. 6, and learned A.G.P. for Respondent Nos.1 to 3. 2. It is not in dispute that the petitioner has been elected as member of Gram Panchayat and thereafter as its Sarpanch in the year 2007. After his election, on the strength of a F.I.R. registered on 22nd July, 2006 action for his disqualification was initiated contending that he encroached on Government Land. The office of Collector accepted that contention and disqualified him on 27th November, 2009. Petitioner then filed appeal under section 16 (2) of Bombay Village Panchayat Act and that appeal has been 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11177 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. rejected on 5th October, 2010. 3. Shri Gore contends that alleged F.I.R. at the most shows only a solitary instance and there is nothing on record to show that the alleged encroachment in July, 2006 was continuing either on the date of election of the Petitioner or then thereafter when the proceedings were filed. He is pointing out that the said cause for disqualification has been added by amendment in Bombay Village Panchayat Act, on 23rd December, 2006 and he is relying upon judgment of this Court in the case of "Narayan Sadhu Suryawanshi and another V/s State of Maharashtra and others" reported in 2009 (5) Bom. C. R. 728. The said disqualification operates prospectively i.e. person must be shown to have encroached after coming into force of said provision. His contention is in any case, therefore, alleged encroachment done prior to coming into force of said provision is not relevant 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11177 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. here. 4. Respective counsel for Respondent Nos.4 and 5 and 6 state that both orders show that petitioner is encroacher. Shri Taur points out that office of Collector had specifically asked Tahsildar to submit a report, the Tahsildar did not submit any such report. However, further, contends that no reply has been filed even before this Court. Learned counsel for Respondent No.5 has invited attention to Panchanama allegedly recorded on 21st July, 2006 to state that it records encroachment. 5. Learned A.G.P. has supported the impugned order and adopted the arguments of learned counsel for Respondent Nos.4 to 6. 6. The copy of Panchanama dated 21st July, 2006 is produced before this Court by learned counsel for Respondent No.5. Shri Gore points out that on the basis of that Panchanama FIR No.96 of 2006 has been 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11177 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. registered on 22nd July, 2006. The perusal of Panchanama reveals that at the spot in dispute (government land) work of leveling was done and that work was damaged/ dismantled by some persons with a view to bring that land under agricultural use. It appears that some canals were dug and all those canals were filled in and that caused loss of Rs.3,828/- to State Government as recorded in the said Panchanama. 7. Some names are also recorded in that Panchanama and it appears that name of petitioner is recorded at Serial NO.13 in it as person who has indulged in that activity. It is also recorded that when the officers of Government tried to obstruct those accused persons they did not listen and continued with their activity. The details of Panchanama are not looked into by either the Commissioner or the Collector. Whether it was encroachment and possession was lost to 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11177 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. State Government or then it was an isolated act is not very clear from the impugned order. The orders also do not show whether after his election the petitioner has continued in possession of said land. 8. As I find consideration inadequate to arrive at a finding that at or after his election petitioner has indulged in an act of encroachment, impugned orders dated 27th November, 2009 and 5th October, 2010 passed by Additional Collector Aurangabad and Additional Commissioner, Aurangabad respectively are quashed and set aside. 9. The application filed by Respondent No.4 is restored back to the file of Respondent No.2 for taking fresh decision in the matter after giving parties necessary opportunity. Rule made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:16/03/2011. ans/11177