Sunil S/O. Chaitramji Kamdi v. Additional Commissioner, Nagpur Division, Nagpur And Others

2023:BHC-NAG:16670

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR WRIT PETITION NO.

/20 PETITIONER Sunil S/o Chaitramji Kamdi Aged 33 years, Occu. Business, R/o Ward No.2, at and Post Kelwad, Tahsil - Saoner, Dist. Nagpur ...VERSUS...

RESPONDENTS

1. Additional Commissioner, Nagpur Division, Nagpur Office at Old Secretariat, Civil Lines, Opp. GPO, Nagpur - 440 001.

2. Additional Collector, Nagpur Division, Nagpur Office at Civil Lines, Nagpur.

3. Smt. Geetanjali w/o Prashant Wankhede, Aged about 38 years, Occu. Housewife, R/o Ward No.5, at and Post Kelwad, Tahsil-Saoner, District - Nagpur, Presently In Charge Sarpanch.

4. Gram Panchayat, Kelwad through its Secretary, Office at and Post Kelwad, Tahsil Saoner, District - Nagpur.

Mr. F.T. Mirza, Advocate with Mr. N.L. Jaiswal, Advocate for petitioner Mr. Harshwardhan Dhumale, AGP for respondent nos.1 and 2 Mr. Aniket Waghdhare, Advocate for respondent no.3 CORAM : AVINASH G. GHAROTE, J.

Date of reserving the judgment : 03/11/2023 Date of pronouncing the judgment : 01/12/2023

J U D G M E N T

1.

Heard Mr. Firdos Mirza, learned counsel for the petitioner; Mr. Harshwardhan Dhumale, learned Assistant Government Pleader for the respondent nos.1 and 2 and Mr. Aniket Waghdhare, learned counsel for the respondent no.3. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the rival parties. 2.

The petition questions the order dated 14/07/2023, passed by the Additional Collector, Nagpur/Respondent no.2, (pg.130), whereby the complaint filed by the respondent no.3, against the petitioner, who is the elected Sarpanch of Gram Panchayat, Kelvad, Tah: Saoner, seeking his disqualification under Section 14(1)(j-3) and 16 of the Maharashtra Village Panchayats Act ("MVP Act", hereinafter for short) and his family members having committed encroachment on Government land, has been allowed and the petitioner was disqualified and so also the order dated 01/08/2023 (pg.180) passed by the Divisional Commissioner, Nagpur/ Respondent no.1, in appeal, dismissing the appeal.

3.

On 13/10/2023, the following position was recorded :

"1. Heard.

2. The petitioner who was elected as Sarpanch has been disqualified under Section 14 (1)(j-3) of the Maharashtra Village Panchayats Act, 1959, on the ground that his father has made an encroachment on Survey No. 1 which is forest land which is to the extent of 2000 sq.ft. for which reliance is placed upon the affidavit dated 29.05.2017 of the father of the petitioner Chaitram Dhondbaji Kamdi (page 203); the resolution by the Gram Panchayat (page 206) and the tax receipt at (page 202). Further reliance is placed upon the statement of one Janrao Shrawan Khonde (page 82) to contend that the encroachment was removed a month back.

3. The forest department has made a statement, that there is no encroachment of the land of Survey No.1. The affidavit dated 29.05.2017 which is relied upon does not mention Survey No. 1 but only indicates an area of 2000 sq.ft. which is in ward No. 2 adjacent to the slum/zhopadpatti. From the affidavit, it is difficult to correlate this land of 2000 sq.ft. as being a part and parcel of the land of Survey No. 1. It would equally be a position that if the land of Survey No.1 is a forest land, the Gram Panchayat would have no jurisdiction upon the same, and therefore, cannot impose any tax on any construction erected thereupon. The very fact that the Gram Panchayat has imposed a tax would indicate that this property is in ward No.2.

It therefore appears, that though it is contended, that this land belongs to forest land and is encroached by the father of the petitioner, in view of the above position no co-relation has been established on record. Though the statement of one Janrao Shrawan Khonde is being relied upon, there are other statements of the Forest Department Shri C.M.

86) and Shri Kailash Mohanlal Gandhi (page 88) which indicate that on the land which is indicated adjacent to ward No. 2, there is no encroachment but a weekly bazar was held there in the past.

4. That apart, even the order of the Collector dated 14.07.2023 (page 144) records, that there was no encroachment on the date of the inspection. Though a finding is recorded that the construction thereupon was demolished one month earlier, there is no material on record to substantiate this position.

5. Mr. Waghdhare, learned counsel for the respondent No.3 submits, that there are two affidavits which were filed before the Collector which may have bearing upon the matter and he would like to place the same on record.

6. In order to afford an opportunity list the matter on 19.10.2023, by which time, the affidavits shall be filed on record."

4.

On 03/11/2023 Mr. Waghdhare, learned counsel for the respondent no.3, argued as under :

Mr. Waghdhare, learned Counsel for respondent no.3, invites my attention to affidavit of one Manoj Bhimraoji Talekar dated 11/05/2023 and that of Ishwar Bhauraoji Pawade of the same date (pg.221 to 224) and submits, that these demonstrate the factum of encroachment by petitioner as well as his father on the Government land which is claimed to have been demolished on 13/03/2023 by use of JCB machine. He further invites my attention to the enquiry report (pg.64) dated 12-13/07/2022, in which the father of the petitioner admits his encroachment on the Government land in view of his answer to query No.15, which according to him, demonstrates encroachment.

He further invites my attention to

the voters' list (pg. 216) to point out, that the address of the father of the petitioner at serial No.662 and that of the petitioner at serial No.664 is the same i.e. House No.201-A and considering that the voters' list is dated 01/01/2023, it is submitted, that even that point of time the petitioner and his father are residing in the same house. He further invites my attention to the document at page 209, which also is at page 72, which has been filed by the petitioner to indicate that he was residing separately in House No.503, as against which it is submitted, that the reply dated 23/05/2023 by the Coal-mines Workers Credit Co-operative Society Limited, which is the dealer (pg.207) indicates, that the change in address in the subscription voucher (pg. 209 and 72) was effected at the behest of the petitioner on 18/05/2023. He further invites my attention to the application for interim stay by the petitioner dated 19/05/2021 (pg. 211) in which in para 1, it has been stated by the petitioner that he is residing jointly with his mother, father and younger brother. 5.

Learned Counsel further relies upon the selfdeclaration filed by the petitioner on 02/12/2022 while filling in the nomination form for the post of 'Sarpanch' to contend, that in the said declaration a statement has been made that he is

residing in his own house, as against which, it has now been claimed that the petitioner is residing in rented premises. Further inviting my attention to the agreement of tenancy dated 29/09/2022 (pg.66), it is contended that though the said contemplates the tenancy of the petitioner in respect of one room in House No.503 in Ward No.2, admeasuring 170 sq. ft., for the duration 2018 to 17/09/2022, except for this document, there is nothing else on record to indicate the actual tenancy. 6.

That apart, it is also contended, that this document was not filed with the nomination form nor was any statement made in the self-declaration (pg.43) to indicate, that the petitioner at the relevant time was residing in a rented premises. Section 14(1)(j-3) (ii) of the MVP Act has been relied upon to contend that in case the petitioner resided in house not owned by him, a statement to that effect was required to be made in the self-declaration and since the same is absent and self-declaration on the other hand speaks of the petitioner residing in his own house, the plea which is now being canvassed by the petitioner of residing at rented premises, separate from his parents, is clearly an afterthought and not demonstrated by the material on record. He also contends, that ground 'H' (pg.17) in the petition, is in

fact an attempt to cover up the admission which has come on record regarding the joint residence of the petitioner along with his parents, and on account of the father of the petitioner having encroached on the Government land, which is demonstrable from the Panchnama (pg.64), and the finding recorded by the authorities below, is clearly justified.

7.

He further contends, that the Ration Card placed on record by the petitioner (pg. 61 to 63) does not assist the plea of separate residence put forth by the petitioner as the same does not contain any address at all. It is therefore submitted, that the cumulative effect of all the above position would indicate encroachment of the father of the petitioner on the Government land, and the petitioner being a joint resident with his father had clearly incurred disqualification as contemplated in Section 14(1) (j-3) of the MVP Act.

8.

Section 124 (1)(i) of the MVP Act is also relied upon to indicate that the tax on building is leviable by the Gram Panchayat within limits of the village, and since the father of the petitioner had filed an affidavit on 29/05/2017 (pg.203), seeking to levy tax upon the open space of 2000 sq.fts. adjacent to the Zopadpatti/slum in Ward No.2, which he claims to be in his

possession and accordingly tax was levied (page 202) on 28/11/2022, that according to learned counsel for respondent No.3 firmly establishes the factum of encroachment. 9.

Mr. Waghdhare, learned counsel for the respondent No.3, further places reliance upon Kusum Pralhad Tekawade Vs. Sachin Sudhakar Tekawade and others, W.P. No.8807/2016 with connected matter, decided on 05.08.2016 (para 7 to 9), Janabai Vs. Additional Commissioner and others, (2018) 18 SCC 196 (para 29 and 30), Vitthal Narayan Kadam Vs. Ali Ahmad Bashir Shaikh and others, W.P. 4277/2022, decided on 03.10.2023 by learned Single Judge of this Court (para 23) and Anita and others Vs. Additional Commissioner, Nagpur Division and others, MANU/MH/2973/2021 (para 11 and 14), which has been upheld by the Apex Court.

10.

The learned Assistant Government Pleader supports the impugned orders and points out Section 124 (xiv) of the MPV Act, which permits the levy of a fee for temporary erection on, or putting up projections over, or temporary occupation of, any public street or place.

11.

Mr. Mirza, learned counsel for the petitioner, in reply submits that the claim of encroachment on the

Government/public land needs to be specified. In the present case, there are no boundaries specified on the land encroached, the impugned order only says forest land. Insofar as the affidavit (pg. 221), it is contended that Manoj Talekar is facing a Session Trial, in which the petitioner is a witness against him, and therefore, he is on inimical terms. The other person is belonging to rival group. He also contends, that the voters' list cannot be read in isolation (pg. 216). The landlord/petitioner is Vasant Dhobale and Harsha Vasant Dhoble his wife, whose name appears at Sr. No.661, is also shown as resident No.201-A. Inviting my attention to the voters' list at page 36, it is also contended, that Vasant Dhobale's name also shows the address as 201-A, and therefore, nothing can be made out of it. 12.

Insofar as the documents relating to the gas connection is concerned, the document at page 209 dated 18/05/2023, the signature of the consumer is absent, whereas the document at page 72, the signature of both the dealer and consumer is there. The Ration Card (page 61) dated 28/09/2018 also indicates that it is separate in the name of wife of the petitioner and the names of the father and mother are not found therein. Their names are included in page 62, which however is

dated 06/01/2022. In relation to the inspection report (pg.64), dated 12/07/2022, he points out that it contains the names of only three persons the father, mother and brother of the petitioner and nobody else, the document at page 211 is denied as being forged and fabricated, to substantiate which it is contended that Block Development Officer has no power to grant stay.

13.

Insofar as the judgments relied upon by the learned counsel for the respondent No.3, it is contended that they are not applicable as in those cases the encroachment continues, whereas in the present case, no encroachment has been found. 14.

Reliance has been placed upon Ravi Yashant Bhoir Vs. District Collector, Raigad and others, (2012) 4 SCC 407 (paras 28 to 36) and Akshay Jitendra Raut Vs. Divisional Commissioner and others, W.P. No.2734/2022, decided on 19.8.2022 (para 11).

15.

The purpose of bringing Section 14(1)(j-3) of the MVP Act on the Statute Book, was to avoid an apparent conflict of interest between the personal interest of an elected member and the duties as cast upon him by the nature of his office, in light of the statutory provisions, as contained in Section 53 of the

MVP Act, which enjoins the Gram Panchayat, of which he becomes a part, on account of his election, to remove obstructions and encroachments upon public streets and open sites. An elected member of the Gram Panchayat, was therefore, not only duty bound to ensure that at the time of filling his nomination, not only he was not an encroacher, but the members of his family, were also not so.

16.

The word 'encroach', by its very definition means unauthorised entry in someone else's property, whosoever it may belong to. The nature of the property, may also vary. It could be immoveable property or even intellectual rights which someone may have. In the context of Section 14(1)(j-3) of the MVP Act, it has necessarily to mean immoveable property, of someone else. 17.

In light of the above position, two things will have to be considered. First : whether the petitioner or any of his family member was/is an encroacher and Second : if the family member of the petitioner was/is an encroacher, whether he/she was/is residing with the petitioner.

18.

Insofar as the question as to whether there is any encroachment by the petitioner or any of his family member, an admission would be the best piece of evidence to demonstrate

this. In this context the affidavit of the father of the petitioner dated 29/05/2017 (pg.203), assumes significance. A perusal of this afidavit, indicates that it is an admission by Shri Chaitram Dhondbaji Kamdi, father of the petitioner of being in possession of an area admeasuring 40 x 50 = 2000 sq. ft. of land, in Ward No.2, of Mouza: Kelvad, adjacent to the Zopadpatti, since the last 30 years, on a part of which he had constructed a shed for keeping domesticated animals, which affidavit was submitted to the Gram Panchayat, Kelvad, for the purpose of assessing the Shed, to tax. Though it is contended that this is a fraudulent document, what is material to note is that on the basis of this affidavit, the Gram Panchayat, Kelvad, had in fact passed a resolution for assessing tax (pg.

206), and had in fact assessed tax by giving the Shed a House No.2156, which has been paid by the father of the petitioner as is indicated from the tax receipt dated 28/11/2022 (pg.202). The payment of this tax, which was for the duration 1984 to 2017, has not been denied by the petitioner.

for determining whether the petitioner, stood disqualified on account of the mandate of Section 14(1)(j-3) of the MVP Act. These documents therefore do not establish that on the date of filing of the nomination of the petitioner for the post of Sarpanch, which was to be done between 28/11/2022 to 02/12/2022, the encroachment was not there.

19.

True it is that the statement of Mr. C.M. Kadve, Range Forest Officer (pg.79) and the spot inspection report (pg.75-77) which are being pressed in service, by Mr. Mirza, learned counsel for the petitioner, indicate that there was no encroachment on Gat No.1 admeasuring 0.11 HR, which is said to be the same land, however, what is material to note is that this statement of Mr. C. M. Kadve, as well as the spot inspection report, both are dated 03/05/2023 and speak of an inspection made on the same date in the afternoon and therefore would not be of any assistance to the petitioner to contend that no encroachment was ever made and was not existent, on the date of filing of the nomination by the petitioner, which was sometime in between 28/11/2022 to 02/12/2022, as results were declared on 20/12/2022, in which the petitioner was elected as a Sarpanch of Gram Panchayat, Kelvad. The spot inspection report

(pg.75) dated 03/05/2023, in fact, speaks that on the date of the spot inspection, the records of the Gram Panchayat indicated tax being assessed for House no.2156, for the year 2022-2023, also, vide receipt no.920 (pg.202), which would in turn indicate that the encroachment by the father of the petitioner had continued for the assessment year 2022-2023.

20.

In fact, the report of the Gram Adhikari, dated 12/07/2022, (pg.64) indicates that the father of the petitioner was identified as a flood affected person, on account of a claim being made that the wall of the shed was washed away due to excessive rains and therefore the shed was partly damaged. The report further contains a statement that the shed was on land belonging to the Government and thus was an encroachment (pg.65). The report is signed by the father of the petitioner, as well as by the Gram Adhikari and two panchas. 21.

The respondent no.3, in his application under Section 14(1)(j-3) of the MVP Act, had made a categorical statement in para 5 thereof (pg.57) that the father of the petitioner, had encroached upon forest land which was Zudpi Jungle bearing Survey No.1, with specific reference to his affidavit dated 29/05/2017 (pg.203) and that on account of the

same tax was levied, which was also paid by the father of the petitioner on 28/11/2022 to the Gram Panchayat. Yet a look at the affidavit in response of the petitioner dated 30/6/2023 (pg.114) indicates that except of a plain denial, nothing else has been mentioned and no explanation is forthcoming as regards the affidavit dated 29/05/2017 or the payment of tax on 28/11/2022 by the father of the petitioner.

22.

This being the position, since the factum of encroachment as indicated above being an admitted one, till the end of November 2022 (the tax receipt at page 202 dated 28/11/2022), and the nominations were to be filled in between 28/11/2022 to 02/12/2022, it was the duty of the petitioner to bring on record the exact date of demolition of the shed and the removal of encroachment, which has not been so brought on record by the petitioner. It is also necessary to note that neither the receipt of payment of Rs.500/- for the nomination form by the petitioner (pg.48) nor the affidavit filed alongwith the nomination form (pg.49 to 54) bear any date whatsoever, to ascertain on which date the same were filed. Even presuming that the petitioner had filed his nomination on the last day i.e. on 02/12/2022, there is nothing on record to indicate, that the shed

was demolished or the area admeasuring 2000 sq. ft. encroached by his father was vacated and surrendered to the Authority to whom it belonged, by that date, considering that the tax for the encroachment was paid on 28/11/2022 (pg.202). 23.

Since the election was held in December 2022, this was more the necessary for the petitioner, if he wanted to avoid the disqualification under Section 14(1)(j-3) of the MVP Act. True it is that an elected representative ought not to be unseated, on a mere allegation, however, in the present matter, the position of encroachment on behalf of the father of the petitioner, being an admitted one, the burden lays at the doorstep of the petitioner to demonstrate that the same was not there on the date of filing of his nomination, which considering the fact position as availing on record has not been discharged. The order dated 13/10/2023, recorded a prima facie position, which on an assessment of the factual position, has turned out to be what has been stated above.

24.

That takes me to the contention that the petitioner was not residing with his father on the date of filing of the nomination. Mr. Waghdhare, learned counsel for the respondent no.3, has laid great stress on the requirement of Section 14(1)

(j-5) of the MVP Act, which for the sake of ready reference is enumerated as under:

"14 (1)---- (j-5) fails to submit a certificate of the concerned panchayat, alongwith the resolution of the Gram Sabha certifying that,- (i) he resides in a house owned by him and has a toilet in such house and he regularly uses such toilet ; or (ii) he resides in a house not owned by him and has a toilet in such house and he regularly uses it or he has no such toilet but regularly uses the public toilet : provided -----"

That such a certificate which was submitted by the petitioner is not in question for a copy of the same has been filed alongwith the petition itself (pg.43). This certificate is dated 02/12/2022, which would also indicate that the nomination was filed by the petitioner on 02/12/2022, the last date of its filing. This certificate which is a self-certificate, is duly signed by the petitioner, himself and states that he has constructed a personal toilet in his own house and he and his family are regularly using it. This clearly belies the theory canvassed by the petitioner that he was residing in a rented house on the date of his nomination. A rent agreement has been filed by the petitioner dated 29/09/2022 (pg.66) in support of his contention that he was residing in a tenanted premises. A perusal of this rent agreement

indicates that the tenanted premises, is a single room, admeasuring 170 sq. ft., in the South-East portion of House No.503, in Ward No.2 at the monthly rent of Rs.700/- p.m. Though it contains a statement that the petitioner was residing there as a tenant since 2017 and the tenancy was being renewed, not a single rent receipt has been filed by the petitioner, to substantiate this position. The rent agreement does not indicate that a toilet is attached to the room which has been let out, rather it specifies that what has been let out is a single room only.

Had there been any credibility in the rent agreement, the petitioner in his affidavit filed in pursuance to the requirement of Section 14(1)(j-5) of the MVP Act, would have stated that he was residing in a rented premises, specified the rented premises and that there was a toilet in such house and that he was regularly using the same. This however is not the position as the affidavit dated 02/12/2022, spells out that the petitioner was residing in his own house, which had a toilet which was being used by him and his family members. Thus the affidavit dated 02/12/2022 which the petitioner has filed with his nomination form (pg.43), is clearly contradictory to the rent agreement (pg.

compliance with the statutory requirement of Section 14(1)(j-5) of the MVP Act, what has been stated in the affidavit would prevail, for it has been given at the pain of being prosecuted for an offence, in case it is found to be incorrect. 25.

What is also material to note is that all the certificates, which are required to be filed alongwith the nomination form, simply say that the petitioner is a resident of Ward No.2, Kelvad. They do not give any specific address for the residence of the petitioner, which ought to have been there, as the petitioner now, claims to be a tenant in House No.503, in Ward no.2, under the tenancy agreement dated 29/09/2022 (pg.66). The affidavit in reply filed by the petitioner before the Additional Collector (pg.114) also does not specify that the petitioner is resident of one room in House no.503. Same is the position with the appeal memo, which the petitioner has filed with the Divisional Commissioner (pg.146). Though reliance has been placed on the address given in the subscription voucher for HP Gas (pg.209), to contend that it shows the petitioner as a resident of House No.503, the same is dated 18/05/2023, and in light of the communication dated 23/05/2023 (pg.207) by the Coal-mines Workers Credit Co-operative Societies Limited, which

is the dealer, stating that the address was changed on 18/05/2023 at the request of the petitioner, is a document, not worthy of any credence. Same would be the position in respect of the subscription voucher (pg.72) which does not even bear the date at all. Thus, there are two subscription vouchers of the petitioner having been provided with a gas connection, as indicated above, both of which being contradictory to each other, one dated 18/05/2023, but not signed by the petitioner (pg.209), the other undated but signed by the petitioner (pg.72), which are self-destructive of each other as they cannot co-exist and therefore cannot be relied upon.

26.

Same is the case with the ration cards, as though they indicate of being separate for the petitioner, his wife and daughter (pg.61) and for his father, mother and Anil (brother) (pg.62), both of them do not bear any address at all. 27.

All the inspection reports on record (pg.89 and 93) indicate a position, consequent to the filing of the Application under Section 14(1)(j-3) of the MVP Act and not on the date of filing of the nomination by the petitioner.

28.

The voters' list for Saoner Legislative Constituency (pg.216), indicates that the petitioner as well as his father and

mother, all are residents of House no.201-A. Since the petitioner is claiming separate residence from his parents, the burden was on the petitioner to establish this position, which considering the above position, the petitioner has failed to establish. 29.

Ravi Yashwant Bhoir (supra) holds that the removal of an elected member can only be in exceptional circumstances giving strict adherence to the statutory provisions and holding enquiry, meeting the principles of natural justice and an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right and not only the elected office bearer but his constituency/electoral college is also deprived of representation by the person of their choice. There cannot be any quarrel with this proposition and therefore while determining whether the elected representative has to be disqualified under Section 14(1)(j-3) of the MVP Act, the adherence with the rules of determination will have to be followed. Akshay Jitendra Raut (supra) was a case in which it was noticed that the enquiry conducted was a superficial enquiry and therefore could not be relied upon. In the instant case, considering the admission of the father of the petitioner, that he was occupying land admeasuring

2000 sq. ft., which was forest land of Survey No.1, it was necessary for the petitioner to demonstrate that it did not affect his statutory right as an elected representative, to continue to represent his constituency, and he did not incur any disqualification, which the petitioner has failed to do, considering which, Ravi Yashwant Bhoir (supra) or for that matter Akshay Jitendra Raut (supra) do not come to the assistance of the petitioner. Janabai (supra), in fact, lays down that the word 'person', is not to be so narrowly construed as a consequence of which the basic issue of 'encroachment', in the context of disqualification becomes absolutely redundant. Sagar Pandurang Dhundare Vs.

Keshav Aba Patil (2018) 1 SCC 340 which held that it is the act of the elected member, himself, of encroachment which invites disqualification, has been expressly overruled in Janabai (supra) and while doing so, considering the mischief, which was to be prevented, an act of encroachment by the member of the family, which in the present case, as on the date of nomination, by the father of the petitioner, is admitted to have existed, would equally attract disqualification. 30.

In light of the discussion above, I, do not see any reason to interfere in the impugned orders. The writ petition is

therefore without any merits and is dismissed. Rule stands discharged. No order as to costs.

(AVINASH G. GHAROTE, J.) Wadkar