-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.845 of 2008 Shri Anant Arjun Thalkar ..Petitioner vs. 1. The State of Maharashtra and others ..Respondents Shri R.P.Sabban with Shri Amol Dhorde for petitioner. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 8th February, 2008 8th February, 2008 8th February, 2008 P.C. P.C. P.C. 1. The petitioner is aggrieved by the order passed by the Collector, Raigad and confirmed by the Additional Commissioner, Konkan Division, Mumbai. The said order disqualifies him from continuing as Upa Sarpanch/Member of Group Gram Panchayat of Mangaon. It is the case of the petitioner that he was elected as a Gram Panchayat Member from Block No.6 of Gram Panchayat, Mangaon in 2005. 2. On 4th June, 2007 respondent no.4 filed a complaint in the office of the Additional Collector, Raigad against the petitioner alleging that he has encroached upon the Government land Survey No.63/1 admeasuring 0.02.0 H.R. at village Utekhol and, therefore, -2- he should be disqualified under sec.14(J-3) of the Bombay Village Panchayat Act, 1958 The complainant attached to his complaint a letter from the Information Officer, Mangaon dated 13th December, 2006. 3. The petitioner has denied the allegations and has contended that House No.2176 is not situated on Survey No.63/1. No 7/12 extract showing Survey No.63/1 to be a Government land is produced. On the other hand the Tahsildar has replied that 7/12 extract of Survey No.63/1 is not available. 7/12 extract of Survey No.63/A/1 is filed which is "sarkari pad" and it is contended that both survey numbers are the same. However, neither the site map is produced nor any proof is available to show that the petitioner’s house is in survey no.63/1. This was a specific contention and further it was corroborated by filing the affidavit stating therein that the house is situated on survey no.63/B/2 and it is not the Government land. 4. On the other hand the complaint persisted that the encroachment of the petitioner is on survey no.63/1 and during computarisation survey no.63/1 has been treated as survey no.63/A/1. -3- This observation was made on the basis of the letter from the Information Officer. Thereafter with regard to Survey No.63/B/2 where the house of the petitioner is allegedly located the case set up by the complainant is that the said land is allotted by the Government to one Baudha Janseva Sangha. This is also a Govt. land.Hence, it can be concluded that encroachment of the petitioner is on the Govt. land i.e. survey no.63/1 and 63/B/2. 5. Surprisingly this case is accepted and the petitioner is disqualified. 6. From reading of the two orders it is apparent that both the Collector and Commissioner had failed to apply their mind to the fact on what land the construction or the encroachment is made, whether it is a Government land and when the construction was made. The survey number and relevant extract so also the details of the alleged encroachment including the year in which the same has been made are not set out. There is absolutely nothing to indicate when the Govt. land has been allegedly encroached or the construction was already made but not removed. To my mind, the provision in -4- question may not be strictly penal, yet, the consequences thereof are serious. Basic and fundamental requirement of application of mind is, therefore, inherent in exercise that is required to be undertaken by such high powered officer. They are deciding the disqualification of not a candidate but of an elected representative in this case. The least that is expected is that the authorities will apply their mind to the allegations in the back drop of the requirements stipulated in law. In the instant case that is admittedly not done. 7. On this ground alone the petition deserves to be allowed. The order passed by the Additional Commissioner, Konkan Division on 15th January, 2008 and that of the Additional Collector dated 13th August, 2008 are quashed and set aside and the complaint preferred by respondent no.4 shall now be reheard and decided by the Collector, Raigad and not by any other person. All parties to appear before the Collector on 25th February, 2008 and thereafter the Collector shall decide the matter afresh without being influenced by any observations in the impugned order. The Collector to decide the matter as expeditiously as possible and before -5- 25th March, 2008. All contentions of both sides on merits are kept open. Petition is allowed accordingly. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)