Remanded

Sangitabai Baliram Pawar v. the State of Mah and Ors.

Bombay HC5 Feb 2013WP/9990/2012

Case brief

AI extract

What is this about?

Writ petition challenging disqualification of a petitioner under Section 14(1)(j-3) of the Bombay Village Panchayats Act for alleged encroachment. The High Court quashed the disqualification order, holding that strict proof establishing the petitioner's personal construction of the toilet was lacking.

What did the court decide?

Impugned judgment of Additional Collector and Commissioner quashed; matter remanded to Additional Collector for fresh decision on the encroachment application.

Sangitabai Baliram Pawar Vs the State of Mah… — Pension and Retirement Benefits | Bombay HC (2013)

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1 W.P.No.9990/12

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.9990 OF 2012.

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Smt.Sangitabai W/o Baliram Pawar,
Age 37 years, Occ.Household,
R/o Rampurwadi, Tq.Kannad,
District Aurangabad.

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... Petitioner.

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Versus

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1. The State of Maharashtra.
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.

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2. The Additional Divisional
Commissioner, Aurangabad,
District Aurangabad.

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3. The Additional Collector,
Aurangabad.

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4. Shri Raju S/o Keshavrao Jadhav,
Age 35 years, Occ.Agril.,
R/o Rampurwadi, Tq.Kannad,
Dist.Aurangabad. ... Respondents.

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Mr.V.D.Sapkal, advocate for the Petitioner.
Mr.S.B.Pulkundwar, Asstt.Govt. Pleader for the
State.

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Mr.V.P.Latange, advocate for Respondent No.4.

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2 W.P.No.9990/12

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 05.02.2013.

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ORAL JUDGMENT :

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1.Heard.

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2. Rule. Rule returnable forthwith. With

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the consent of the parties, the petition is taken
up for final hearing.

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3.The present Respondent No.4 had filed
an application seeking disqualification of the
petitioner by invoking Section 14(1)(j-3) of the
Bombay Village Panchayats Act. It is the
contention of the Respondent No.4 that petitioner
has committed encroachment on the Government land
by constructing toiletontheencroached
Government land. The Collector and the
Commissioner upheld the contention of Respondent
No.4 and disqualified the petitioner.

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4.Mr.Sapkal, learned counsel submits that
the statement which has been relied by the

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3 W.P.No.9990/12

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authorities to dub the same as an admission is
totally perverse. In a separate proceeding, the
petitioner had given a statement that she resides
in her own house and in the house the toilet is
constructed on 7.3.2011. In the say filed by the
instantdisqualificationapplication,the
petitioner had specifically contended that there
is a toilet in the house bearing No.150 and 151

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which is in the name of the brother-in-law and
the father-in-law of the petitioner. This would
not mean that the petitioner has admitted that
she has constructed toilet on the encroached
area. The learned counsel submits that if a
member of a joint family makes any encroachment
on the Government land on the said count, the
petitioner can not be disqualified. The learned
counsel relies on the judgment of the learned
Single Judge of this Court in a case of
"Sou.Kanchan Shivaji Atigre Vs. Mahadev Baban
Ranjagane and others"delivered inW.P.No.
8722/2012.

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5.Mr.Latange,learnedcounselfor

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Respondent No.4 and Mr.S.B.Pulkundwar, learned

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4 W.P.No.9990/12

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Asstt. Govt. Pleader support the order. The
learned counsel submits that the petitioner had
specifically made a statement that the toilet is
constructed on 7/10.3.2011. No further proof is
required. It is not the case of the petitioner
that there are two toilets constructed. In light
of that the authorities have properly arrived at
the conclusion.

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6.If the petitioner is a member of joint
family and if any member of the joint family
makes an encroachment then the petitioner can not
be disqualified. The same is the view taken by
the learned Single Judge of this Court in a case
of "Sou.Kanchan Vs. Mahadev" referred supra.

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7.The moot question is as to who has
constructed toilet on the encroached Government
land. From the record one thing is clear that
there is an existence of a toilet on the
Government land. Whether the said toilet on the
Government land is constructed by the petitioner
or not will have to be adjudicated. The
petitioner has come with a case that she has

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5 W.P.No.9990/12

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constructed toilet in the house. The authorities

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have nowhere concluded about the existence of
toilet in the house or that the toilet on the
encroached area is the only one meant for the
members of House No.150 and 151. A clear finding
would be necessary. An elected member is sought
to be disqualified, strict proof would be
required in this regard. In light of that the
authorities will have to arrive at a definite
conclusion about the construction of the toilet
on the encroached Government land by the
petitioner only. No such definite finding has
been arrived at.

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8.In view of that it will be appropriate
to set aside and relegate the parties before the
Additional Collector, to decide the application
filed by the Respondent No.4 for disqualification
of the petitioner U/s 14(1)(j-3) afresh.

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9.In the result, I pass the following

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order :
(i)The impugned judgment passed by the
Additional Collector and the Additional

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6 W.P.No.9990/12

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Divisional Commissioner are quashed and set
aside. The parties are relegated before the
Additional Collector, Aurangabad, who shall
decide the application filed by the present
Respondent No.4 afresh. The parties shall appear
before the Additional Collector on 25.2.2013.
The Additional Collector shall after hearing the
parties decide the said application afresh as
expeditiously as possible and preferably within
three (3) months from the date of appearance.

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(ii)R & P be sent back immediately.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp9990.12

Sangitabai Baliram Pawar v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Sangitabai Baliram Pawar v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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