wp9706-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9706 OF 2010 Sudhakar E. Gondhali .. Petitioner versus Vikas K. Patil & Ors .. Respondents Mr.Rahul M. More for the petitioner. Ms.P.U.Badadare i/by Ganesh Gole for respondent No.1. Ms.Aparna Vhatkar, A.G.P for respondent Nos.3 and 4. CORAM : S.C.DHARMADHIKARI, J. 30th JUNE 2011. P.C.: . On this petition, notice was issued on 4th May 2011 and ad-interim order was made in terms of prayer clause (b). 2 The matter comes before the Court today for confirmation of this ad-interim order. At this stage itself, the writ petition is taken up for hearing and final disposal. Rule. By consent, rule made returnable forthwith. wp9706-10.doc 2 3 The petitioner impugns in this petition, the orders passed by the Additional Commissioner, Konkan Division, Mumbai dated 27th August 2010 rejecting Appeal No.68 of 2010 and confirming the order of the Collector, District Raigad in Dispute Application No.8 of 2010. By this order of the Collector dated 28th January 2010, it was held that the petitioner stands disqualified for continuing as a member of the Village Panchayat, Kurul on the ground that he has incurred a disqualification under section 14(1)(j-3) of the Bombay Village Panchayat Act, 1928 (for short “the Act”). This provision reads thus: “14.Disqualifications.-(1) No person shall be a member of a panchayat continue as such, who- (j-1)... (j-2)... (j-3) has encroached upon the Government land or public property;” 4 The argument of the petitioner’s advocate is that the petitioner contested the election from Ward No.5 in the year 2008. He is the member of the Gram Panchayat. However, he has constructed a house on Survey No.126-A/1 which is a wp9706-10.doc 3 government land. Therefore, the petitioner stands disqualified as he has encroached upon the government land or public property. If he was an encroacher, then, he was not eligible for contesting the elections. If the house has been constructed by encroaching on the land and there is an entry to that effect in the revenue record, which entry has remained undisturbed till date, the petitioner stands disqualified. 5 On such an application which was made on 12th February 2009, the petitioner filed a reply and pointed out that the entire application is false and frivolous. The entry which is relied upon, is of the year 1997. That entry says that the land belongs to the government and it is encroached upon by the petitioner. However, that entry is erroneous. Apart from this entry, there is no other proof. It is pointed out by him that he has a house within the panchayat limits which is House No.258 and there is no question of any encroachment. 6 After hearing both sides, the Collector made the order of disqualification. He relied upon the register which contains the wp9706-10.doc 4 entry in relation to Survey No.126-A/1. On this plot of land, the petitioner has constructed a house in 1997 and, therefore, the notice issued by the Gram Panchayat on 6th February 2008 proves that the petitioner has encroached on the government land. 7 This order was carried in appeal to the Commissioner, but it is confirmed. It is pointed out by the petitioner that the entire documentary evidence has not been considered. The grievance of the petitioner is that the notice dated 6th February 2008 was issued to his wife. Therefore, there is no question of the petitioner being disqualified. Further, he has produced the extract which shows that the Gram Panchayat has clarified the matter. The entire record has not been seen including the house tax receipts. 8 On a perusal of the orders under challenge, I am of the opinion that both the Authorities have failed to consider a vital aspect of the matter as to whether it could be said that the petitioner has encroached on the government land or public property. Whether that encroachment has been committed on the wp9706-10.doc 5 date on which Maharashtra Act No.38 of 2006 has been brought into force or not. The Authorities have failed to consider the judgment of this Court reported in 2009 (5) BCR 728 (Narayan Sadhu Suryawanshi & Anr vs. State of Maharashtra & Ors). Further, the Authorities have also failed to consider as to whether the encroachment has been committed by the petitioner personally or not. Further, the land is a government land or not and whether the house constructed thereon is that of the petitioner or of somebody else. If this is a matter of disqualification of the petitioner who has been elected as a member, then, serious consideration should have been given bearing in mind the object sought to be achieved by implementing the act. For all these reasons and on account of non application of mind to crucial and vital aspects of the matter, the impugned orders are set aside. The writ petition succeeds. However, instead of allowing the petitioner to continue and when I am of the opinion that the matter pertains to disqualification of the petitioner and there is non application of mind to certain vital aspects, interest of justice will be served if the matter is remitted to the Collector, District Raigad for fresh consideration. He shall now wp9706-10.doc 6 decide the dispute afresh on merits and in accordance with law without being influenced by his earlier orders and observations and bearing in mind the issues on which emphasis has been laid as above. All contentions of both sides in that behalf are kept open and it is clarified that this Court has not expressed any opinion thereon. The Collector shall decide the matter within a period of three months from today. (S.C.DHARMADHIKARI, J)