1 WP5549/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5549 OF 2010 Pradip Bhaskar Wagh, Age 33 years, Occupation Agriculture, Resident of At Post Rohane, Taluka Shindkheda, District Dhule Petitioner V E R S U S 1 The State of Maharashtra, Through the Additional Commissioner, Nashik Division, Nashik Respondents 2 Rohidas Waman Wagh (Patil), Age Major, Resident of Rohane, Taluka Shindkheda, District Dhule Mr. Mukul Kulkarni, Advocate for the petitioner Mr. S.B. Pulkundwar, AGP for respondent No.1 / State Mr. V.B. Patil, Advocate for respondent No.2 CORAM : A.V. NIRGUDE, J. DATED : 3rd May, 2011 ORAL JUDGMENT : 1. This writ petition filed under Articles 226, 227 of the Constitution of India challenges the orders passed by the Additional Collector, Dhule and Additional Commissioner, Nashik Division, Nashik holding that the petitioner had incurred disqualification for continuing as member of village panchayat on the ground that he had made encroachment on Government land or public property. The petitioner is an elected member of village panchayat of village Rohane, Taluka Shindkheda, District Dhule. 2. Respondent No. 2 made complaint to the Additional Collector under Section 14 (1) (j-3) of the Bombay Village Panchayat Act, 1958, asserting that the petitioner has incurred disqualification on the ground that he had made encroachment on the Government land which is situated near his house. The learned Additional Collector then made inquiry and during the 2 WP5549/10 course of inquiry the village officers visited the disputed spot. The disputed spot is a plot of land bears Gram Panchayat House No. 455. The record shows that the plot admeasures 50 x 35 feet and stands in the name of one Prashant Bhaskar Wagh, who happens to be the petitioner’s brother. The authorities held that this plot of land is an encroachment on a Government land. They further held that since the petitioner is a member of joint family of Prashant Bhaskar, he should be declared disqualified. 3. On careful perusal of the record, it is found that plot GP House No. 455 was inspected during the course of inquiry and inspection report is brought on record. The inspection report shows that this plot is a vacant piece of land having a small tin-shed erected in the west corner. It is further mentioned that this plot is surrounded by compound wall and that it is not utilized for residential purpose. Nowhere it is mentioned that this plot is adjoining to the residential house of the petitioner and his brother Prashant Bhaskar. This plot is not adjacent to the residential house of the petitioner and his brother. As said above, this property is not utilized as a residential house. It is thus clear that the petitioner’s brother Prashant, on his own, made encroachment on Government land and established his possession. His possession is evident from the Gram Panchayat record. They recorded his name as possessor of the plot and they have been recovering property tax from him. I am assuming that the petitioner is residing in a joint family of which Prashant Bhaskar is also a member, but, by no stretch of imagination the encroachment apparently made by Prashant Bhaskar on the plot G.P. House No. 455 can be attributed to the petitioner. In view of this, the petitioner cannot be connected to the act of encroachment committed by his brother. Section 14 (1) (j-3) being a penal provision, is required to be construed strictly. Both the authorities below committed serious error in 3 WP5549/10 appreciating facts of the case so much so that they declared the petitioner disqualified, which has caused grave injustice to him, and therefore, I am inclined to utlize my powers under Article 227 of the Constitution of India to redress the grievance of the petitioner. The petition should therefore succeed. Rule is made absolute. The impugned orders passed by the Additional Commissioner, Dhule and confirmed by the Additional Commissioner, Nashik Division, Nashik stand set aside. The application of respondent No. 2 stands rejected. ( A.V. NIRGUDE, J. ) SRM/wp/5549/10/3/5/11/ok