1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.6131/2010 [BHAGWANT KHADSE ..VS.. ADDITIONAL COMMISSIOENR & OTHERS] WITH WRIT PETITION NO.1487/2011 [ DNYANESHWAR KHADSE ..VS.. BHAGWANT KHADSE & OTHERS] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W. P. No. 6131/2010 Shri A. V. Band, advocate for petitioners Smt. I. L. Bodade, Assistant Government Pleader for respondent no.1 & 2 Shri Warulkar, Advocate for respondent no.3. Shri P. S. Patil, Advocate for respondent no.4 W. P. No. 1487/2010 Shri P. S. Patil, Advocate for petitioner Shri A. V. Band, Advocate for Respondent no.1. Smt. I. L. Bodade, Assistant Government Pleader for Respondent nos.2 and 3. Shri Warulkar, Advocate for respondent no.4. CORAM : SMT. VASANTI A. NAIK, J. D A T E : MARCH 25, 2011. Since common issues arise for determination in these writ petitions, they are heard together and are decided by this common order. One Bhagwant Khadse, the petitioner in Writ Petition No.6131/2010 filed an application before the Additional Collector, Washim, seeking disqualification of Dnyaneshwar Khadse – Sarpanch under section 14(J-3) and 14(h) of the Bombay Village Panchayat Act. It was the case of Bhagwant that Dnyaneshwar had made encroachment on government land and hence he should be disqualified under the provisions of section 14(J-3) of the Act of 1958, so also it was the case of Bhagwant 2 that Dnyaneshwar was liable to be disqualified under the provisions of section 14(h) of the Act of 1958 for non payment of taxes. The Additional Collector by an order dated 9.6.2009 held that Dnyaneshwar was an encroacher and he was liable to be disqualified under section 14(J-3) of the Act of 1958. Though the Collector did not disqualify Dnyaneshwar under the provisions of section 14(h), Bhagwant did not challenge the order of the Collector, partly rejecting his application before the Additional Commissioner, Amravati. However, since Dnyaneshwar was aggrieved by the order of the Collector dated 9.6.2009 declaring him an encroacher, he filed an appeal before the Additional Commissioner, Amravati. The Additional Commissioner, Amravati dismissed the appeal filed by Dnyaneshwar. Dnyaneshwar filed a Writ Petition bearing Writ Petition No.131/2010 against the orders and this court by the order dated 23.2.2010 remanded the matter to the Additional Collector to decide it in accordance with law as the Additional Collector had relied on certain document for holding that Dnyaneshwar was an encroacher, though Dnyaneshwar was not aware of this document and the document was produced after the matter was closed for order. On remand, it appears that the Additional Collector, re-decided the application filed by Bhagwant on both the issues i.e. on the issue of encroachment and on the issue of non payment of taxes. The Collector held that Dnyaneshwar was not liable to be disqualified under the provisions of section 14(J-3) of the Act of 1958, but was liable to be disqualified for non payment of taxes under the provisions of section 14(h) of the Act. 3 Being aggrieved by the order passed by the Additional Collector, Dnyaneshwar preferred an appeal before the Additional Commissioner. The Additional Commissioner by the impugned order dated 9.11.2010, held that the Additional Collector was not entitled to decide the issue of non payment of taxes as the High Court had remanded the matter to the Additional Collector, only on the issue of encroachment. The Additional Commissioner therefore, remanded the matter to the Additional Collector for deciding the application filed by Bhagwant on the ground of encroachment only. Shri Band, the learned counsel for the petitioner – Bhagwant in Writ Petition no.6131/2010, submitted that the Additional Commissioner committed an error in holding that the Additional Collector, could not have decided the issue of non- payment of taxes. According to the learned counsel for Bhagwant, the High Court had directed the Additional Collector to decide the application in accordance with law and hence the Additional Collector was entitled to decide both the issues i.e. the issue of encroachment and non-payment of taxes, after the remand of the matter. In any case according to the learned counsel for Bhagwant, the Additional Commissioner ought to have decided the correctness or otherwise of the findings of the Additional Collector, on the issue of disqualification under section 14(h) of the Act of 1958. The learned counsel for Bhagwant relied on the decisions reported in AIR 1957 SC Page 871, 2008(6) Mh.L.J.Page 369 and 2004(1)ALL MR Page 60, to substantiate his submissions. Shri P.S.Patil, the learned counsel for the petitioner – 4 Dnyaneshwar in Writ petition No.1487/2011, also challenged the order passed by the Additional Commissioner on the ground that the Additional Commissioner, could not have remanded the matter to the Additional Collector for deciding the issue of encroachment afresh as the issue of encroachment was rightly decided by the Additional Collector, in favour of Dnyaneshwar on remand of the matter. According to the learned counsel for Dnyaneshwar, the Additional Commissioner ought to have allowed the appeal filed by Dnyaneshwar for the reasons recorded in the impugned order. It is submitted on behalf of Dnyaneshwar that since the Additional Commissioner held that the remand of the matter by the High Court was only on the ground of encroachment, there was no question of remanding the matter to the Additional Collector, when the application was decided in favour of Dnyaneshwar, on the point of encroachment. The learned counsel for Dnyaneshwar, submitted that the remand of the matter by the Additional Commissioner was not proper and the appeal filed by Dnyaneshwar ought to have been allowed. Mrs. Bodade, the learned Assistant Government Pleader appearing on behalf of respondent no.1 and 2, supported the order passed by the Additional Commissioner, Amravati Division, Amravati and sought for the dismissal of the writ petition. Shri Warulkar, the learned counsel for the Secretary of the Gram Panchayat, supported the case of Bhagwant and submitted that the Additional Collector had rightly decided both the issues i.e. issue of encroachment and non payment of taxes. The learned counsel for the respondent no.3 adopted the 5 arguments advanced by the learned counsel for Bhagwant. On hearing the learned counsel for the parties and on perusal of the orders passed by the authorities from time to time, it appears that the Additional Commissioner was right in holding by the impugned order dated 9.11.2010 that the Additional Collector could not have decided the issue of non payment of taxes after the matter was remanded to the Collector by the High Court. The Additional Commissioner was however, not justified in remanding the matter to the Additional Collector and as rightly submitted on behalf of Dnyaneshwar, the Additional Commissioner, ought to have allowed the appeal filed by Dnyaneshwar as the order passed by the Additional Collector on 9.6.2009 rejecting the application filed by Bhagwant for disqualification of Dnyaneshwar under section 14(h) of the Act had attained finality as Bhagwant had not challenged the same before the Additional Commissioner. It is necessary to note that though Bhagwant sought the disqualification of Dnyaneshwar under section 14(J-3) of the Act, Bhagwant did not challenge the rejection of his application under section 14(h) of the Act, but Dnyaneshwar challenged the order passed by the Collector on 9.6.2009 as it disqualified him under the provisions of section 14(J-3) of the Act. Since the appeal filed by Dnyaneshwar was dismissed by the Additional Commissioner a writ petition was preferred by Dnyaneshwar against the orders passed by the authorities. The order passed by this court in Writ petition No.23/2/2010, clearly shows that the matter was remanded to the Additional Collector only on the ground of encroachment. The High court would not have remanded the matter on the issue 6 of non payment of taxes, since the same was not an issue before the High Court as both the authorities had disqualified Dnyaneshwar only under section 14(J-3) of the Act of 1958. Hence, on remand, the Additional Collector, ought to have decided the appeal only on the ground of encroachment, but the Additional Collector decided the same also on the ground of non payment of taxes and the disqualification of Dnyaneshwar under section 14(h) of the Act, though the order of the Additional Collector in that regard, dated 9.6.2009, had attained finality as it was not subjected to challenge by Bhagwant in an appeal before the Additional Commissioner. The Additional Collector, however, on remand erroneously decided the application filed by Bhagwant on both the issues and held that Dnyaneshwar was liable to be disqualified under section 14(h) of the Act of 1958. The order passed by the Additional Collector, was challenged by Dnyaneshwar before the Additional Commissioner and the Additional Commissioner, rightly held that the Additional Collector could not have decided the issue of non payment of taxes as the High Court had remanded the matter to the Additional Collector only on the ground of encroachment. However, the Additional Commissioner, committed a mistake in remanding the matter on the issue of encroachment to the Additional Collector as after remand the Additional Collector had decided the issue of encroachment in favour of Dnyaneshwar. The Additional Commissioner, ought to have allowed the appeal filed by Dnyaneshwar and could not have remanded the matter to the Additional Collector for deciding the issue of encroachment as the same was already decided by the Additional 7 Collector in favour of Dnyaneshwar. As Bhagwant had not filed any appeal before the Additional Commissioner, against the finding recorded by the Additional Collector, on the ground of encroachment, on remand, the Additional Commissioner, could not have decided the issue of encroachment in the appeal or for that matter even consider the correctness or otherwise of the finding on that issue. It is rightly submitted on behalf of Dnyaneshwar that the Additional commissioner ought to have allowed the appeal filed by him in its entirety after observing that the Additional Collector did not have jurisdiction to decide the issue of non payment of taxes. Thus though the Additional Commissioner was justified in holding that the Additional Collector did not have jurisdiction to decide the issue of non payment of taxes, as it had attained finality, the Additional Commissioner committed an error in remanding the matter to the Additional Collector for deciding the issue of encroachment as the same was already decided by the Additional Collector in favour of Dyaneshwar. The judgments reported in AIR 1957 SC Page 871, 2008(6) Mh.L.J.Page 369 and 2004(1)ALL MR Page 60, and relied by counsel for Bhagwant are inapplicable to the facts of this case. Hence for the reasons aforesaid Writ Petition No.6131/2010 filed by Bhagwant is dismissed and Writ Petition No.1487/2010 filed by Dnyaneshwar is allowed. The impugned order passed by the Additional Commissioner, Amravati on 9.11.2010 is modified. The part of the order remanding the matter to the Additional Collector, Washim for fresh enquiry on the issue of encroachment is quashed and set aside. The appeal 8 filed by Dyaneshwar before the Additional Commissioner is allowed. Order accordingly. No order as to costs. JUDGE SMP