Krushnat Ramchandra Sutar v. Additional Divisional Commissoner, Pune Division, Pune And ORS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 50 OF 2025 Krushnat Ramchandra Sutar ....Petitioner V/s.
Additional Divisional Commissioner and Ors.
....Respondents ____________ Mr. Sandeep Koregave with Ms. Pallavi A. Karankar for Petitioner. Mrs. Vaishali Nimbalkar, AGP for the Respondent Nos.1 to 3-State. Mr. Aditya Raktade, for Respondent No.4.
_____________ CORAM : SANDEEP V. MARNE, J.
Date :
9 January 2025.
ORAL ORDER :
1) Rule. Rule made returnable forthwith. With the consent of the learned counsel appearing for the parties, the petition is taken up for hearing and final disposal.
2) The petition challenges the order dated 21 October 2024 passed by the Additional Divisional Commissioner, Pune Division, Pune dismissing the Appeal preferred by the Petitioner and confirming the order dated 31 January 2024 passed by the Collector, Kolhapur disqualifying the Petitioner from being a Member and Sarpanch of Grampanchayat, Village-Mandre, Taluka-Karveer, District-Kolhapur 1 of
under the provisions of Section 14(1)(j-3) of the Maharashtra Village Panchayat Act, 1958.
3) I have heard Mr. Koregave, the learned counsel appearing for the Petitioner, Ms. Nimbalkar, the learnead AGP for Respondent Nos.1 to 3 and Mr. Raktade, for Respondent No.4. 4) After having considered the submissions canvassed by the learned counsel appearing for the parties, it is seen that the Petitioner filed his nomination for election as Member of Grampanchayat, VillageMandre, Taluka-Karveer, District-Kolhapur on 1 December 2022 and came to be elected not only as a Member of Grampanchayat but also as Lokniyukt Sarpanch. Respondent No.4 filed Dispute Application No.5/2023 before the Collector, Kolhapur seeking Petitioner's disqualification under the provisions of Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 alleging that the Petitioner had committed encroachment on government land. It was alleged that the Petitioner had constructed a house which is assessed in Petitioner's name in the records of the Grampanchayat as House Property No.228 and that he was residing in the same.
5) Petitioner does not dispute the position that his forefathers did construct Grampanchayat House No.228 on land bearing Gat No.275 which is a Gairan land. Apparently however, the said house was badly damaged and had already collapsed and accordingly the Petitioner filed application on 25 November 2022 with the Grampanchayat informing it about collapse of the house and that what existed at the place was mere vacant land. The Petitioner also made a statement that he had left possession of the land on which the house had existed and that the same was in possession of Grampanchayat. The Petitioner 2 of
stated that he has no right, title or interest in respect of the land or house no.228 and accordingly requested for deletion of is names as occupant of the house in the records of Grampanchayat. 6) The Grampanchayat in turn gave response dated 29 November 2022 to the Petitioner stating that after site inspection presence of some buffaloes was observed at House no.228 and therefore the Petitioner was yet to leave possession of the land on which House no.228 was located. The Grampanchayat therefore requested the Petitioner to remove the encroachment by demolishing the house and agreed to delete entry of the Petitioner being occupant thereafter. 7) It appears that in the Dispute Application, the Collector directed to conduct themeasurement of land bearing Gat No.275 which is a gairan land. The measurement was conducted on 7 August 2023 and measurement map bearing M.R.17611/2002 was prepared. In the said map, open land was noticed in place of Grampanchayat House No.
228. Additionally, statement of Gramsevak was recorded on 16 May 2023 in which he certified that the nature of property as on 16 May 2023 was vacant land.
8) Thus, both the statement of Gramsevak dated 16 May 2023, as well as the measurement map dated 7 August 2023 clearly indicated non-existence of any house at the site, which was found to be merely vacant/open land.
9) The Collector appears to have been swayed by the response given by the Grampanchayat on 29 November 2022 to the Petitioner for drawl of an inference that the house actually existed at the site as on 29 3 of
November 2022. It would be apposite to reproduce response of the Grampanchayat dated 29 November 2022, which reads thus : प्रति श्री कृष्णाच्या रामचंद्र सुार रा. मांडरे , ा. करवीर यांना.
विवषय -आपला वि २८/११/२०२२ रोजीचा अज&.
आपले विवनंी अजा&नुसार प्रत्यक्ष स्थळ पाहणी केली असा विमळक क्र. २२८ मध्ये म्हैशी बांधलेल्या वि सून ये आहे त्यावरून असे वि सून येे विक आपण विमळकीचा ाबा सोडलेला नाही े आपण अतिक्रमण आपण स्वः विनष्काशी करून घ्यावी. स र अतिक्रमण विनष्काी केलेचे ग्रामपंचाय काया&लयाची पुष्टी झाल्या नंर आपला अजा&वर पुढील यॊग्यी काय ेशीर काय&वाही करण्या येईल.
ग्रामसेवक ग्रामपंचाय -मौजे मांडरे ा. करवीर, जिज . कोल्हापूर 10) Grampanchayat's letter dated 29 November 2022 shows that the site inspection was conducted and the Grampanchayat found teetering of buffaloes at House no.228. Merely because few buffaloes were found to have been teetered at the site of house no.228, it cannot be inferred with a degree of certainty that the house itself existed at the site as on 29 November 2022. The letter dated 29 November 2022 does not record that the buffaloes found to be teetered were of the Petitioner. The letter dated 29 November 2022 does not reflect existence of any construction at the site. The Grampanchayat appears to have drawn a surmise that the Petitioner continued to possess the open land where buffaloes were found even without verifying whether the said buffaloes were of Petitioner or not. As a matter of fact, on 25 November 2022, the 4 of
Petitioner had specifically made a statement that he had left possession of Grampanchayat House No.228 and that he did not have any right, title or interest therein. It would be apposite to reproduce Petitioner's letter dated 29 November 2022:
प्रति, मा. ग्रामसेवकसो, ग्रामपंचाय मांडरे ा. करवीर, जिज. कोल्हापूर अज& ार -कृष्णा रामचंद्र सुार विवषय :- ग्रामपंचाय विमळक नं २२८ या विमळकीबाब ाबा सोडून स रचा ाबा ग्रामपंचायीस वि लेमुळे असेसमेंट पत्रकी भोगवट ार स री माझे असणारे नाव कमी होणे बाब १) मी मांडरे ा. करवीर जिज. कोल्हापूर येील कायमचा रविहवासी आहे. २) मांडरे येील मालमत्ता क्र. २२८ या विमळकी मधील गड-विवटा माींचे घर हे माझ्या पूव&हक्क ारानी बांधलेले होे. त्याचे क्षेत्रफळ १२ x १४ असे १६८ चौ. फू. असे आहे. स र बांधीव विमळक पडीक आहे. सेच बांधकामही नष्ट झालेले होे व आहे.
३) स र क्षेत्राील माझा ाबा मी सोडून वि लेला आहे व स र विमळक ग्रामपंचाय मांडरे यांच्या प्रत्यक्ष ाब्या वि लेली आहे. त्यामुळे स र मालमत्ता क्र. २२८ बाब माझा कोणाही हक्क, अतिधकार, वविहवाट, राविहलेली नाही. त्यामुळे स र विमळकीचे असेसमेंट पत्रकी भोगवट ार स री माझे असणारे नाव कमी करून भोगवटा ार स री ग्रामपंचाय मांडरे यांचे नाव नमू करावे ही माझी आपणास नम्र विवनंी आहे.
कृष्णा रामचंद्र सुार मांडरे ा. २५/११/२०२२ 11) In my view therefore, no definitive inference can be drawn based on Grampanchayats' letter dated 29 November 2022 that any construction existed at the site as on 29 November 2022. 5 of
12) The Additional Collector appears to have recorded a perverse finding that the measurement map prepared by the office of the Superintendent of Land Records on 7 August 2023 (M.R. No.17611/2002) shows encroachment by the Petitioner. In fact, perusal of the said measurement map no. 17611/2002 clearly reflects that there was an open land at the site of Grampanchayat House No.228. In contrast, it appears that two other houses bearing nos.230 and 235 were found at the site, with which Petitioner does not have any connection. Thus, whatever actual construction was seen by the Surveyor, he indicated its existence separately in the map and the status of house no.228 was clearly indicated as vacant land by the Surveyor.
Even photographs apparently taken at the time of conduct of measurements indicates non-presence of any constructed structure at the site and what is observed at the site is merely a heap of soil and hay. 13) In my view, therefore the Collector and Additional Divisional Commissioner have grossly erred in directing disqualification of the Petitioner under the provisions of Section 14(1)(j3) of the Village panchayat Act. It must be borne in mind that the Petitioner afterall is a democratically elected Sarpanch. He cannot be removed from the post merely on the basis of surmises in absence of any definitive proof of commission of encroachment by him. In Ravi Yashwant Bhoir v.
37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like "no confidence motion", etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period. 6 of
36. In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent 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. Not only the elected office-bearer but his constituency/electoral college is also deprived of representation by the person of their choice.
35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC 983] , Mohan Lal Tripathi v. District Magistrate, Rae Bareily [(1992) 4 SCC 80 : AIR 1993 SC 2042] and Ram Beti v. District Panchayat Raj Adhikari [(1998) 1 SCC 680 : AIR 1998 SC 1222] ).
34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.
14) In my view, therefore the orders passed by the Collector and Additional Divisional Commissioner are unsustainable and are liable to be set aside. The petition accordingly succeeds, and I proceed to pass the following order:
(i) Order dated 31 January 2024 passed by the Collector, Kolhapur and order dated 21 October 2024 passed by the Additional Divisional Commissioner, Pune are set aside. 7 of
(ii) Dispute Application No.5/2023 is dismissed.
15) Writ Petition is allowed in the above terms. Rule is made absolute. There shall be no order as to costs. [SANDEEP V. MARNE, J.] 8 of