Someshwar Kondiba Kirwale and Others Vs the… — Public Procurement and Tenders | Bombay HC (2019)

Someshwar Kondiba Kirwale and Others Vs the… — Public Procurement and Tenders | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

PUBLIC INTEREST LITIGATION NO.163 OF 2016

Shri Rafikkha s/o Babakha Pathan,
Age-32 years, Occu:Labourer,
R/o-Near Govt. Hospital, Chandnagar,
Sirsala, Tq-Parli-Vaijnath,
Dist-Beed.

...PETITIONER

 VERSUS

1) The State of Maharashtra, Through Secretary Rural Development And Water Conservation Department, Mantralaya, Mumbai,

2) Chief Executive Officer, Zilla Parishad, Beed, Tq. and Dist-Beed,

3) Block Development Officer, Panchayat Samiti, Parli Vaijnath, Dist-Beed,

4) Grampanchayat Sirsala, Through its Village Development Officer, Grampanchayat Office, Sirsala, Tq-Parli Vaijnath, Dist-Beed,

5) Kadaji S/o Shrirang Kadbhane,
 Age-55 years, Occu:Labour,
 R/o-Sirsala, Tq-Parli Vaijnath,
 Dist-Beed,

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6) Sarjerao @ Rajabhau s/o Sadaram
 Ujagare, Age-38 years, Occu:Agri.,
 R/o-Sirsala, Tq-Parli Vaijnath,
 Dist-Beed.
...RESPONDENTS
 ...
 Mr.A.S. Londhe Advocate with Mr. B.R. Sable
 Advocate for Petitioner.
 Mr.S.B. Yawalkar, A.G.P. for Respondent No.1.
 Mr.U.S. Mote Advocate for Respondent
 Nos. 2 to 4.
 Mr.S.S. Gangakhedkar Advocate for Respondent
 Nos.5 and 6 / Intervenors.
 ...

WITH

WRIT PETITION NO.10558 OF 2017

1) Someshwar Kondiba Kirwale, Age-45 years, Occu:Agri. & Business, 2) Krishna s/o Pandharinath Kale, Age-30 years, Occu:Agri. & Business,

3) Somnath s/o Suresh Shahane, Age-29 years, Occu:Agri. & Business,

All R/o-Sirsala, Tq-Parali,
Dist-Beed.

...PETITIONERS
 VERSUS

1) The State of Maharashtra, Through Secretary, Rural Development And Water Conservation Department, Mantralaya, Mumbai,

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2) Divisional Commissioner,
 Aurangabad Division,
 Aurangabad,
3) The Collector,
 Beed, Dist-Beed,
4) The Tahesildar,
 Parali Vaijinath,
 Tq-Parali, Dist-Beed,
5) Chief Executive Officer,
 Zilla Parishad, Beed,
 Dist-Beed,
6) Block Development Officer,
 Panchayat Samiti, Parli (V),
 Dist-Beed,
7) Grampanchayat Sirsala,
 Through it's
 Village Development Officer,
 Grampanchayat Office,
 Sirsala, Tq-Parli Vaijnath,
 Dist-Beed.
...RESPONDENTS
 ...
 Mr.G.K. Thigle Advocate for Petitioners.
 Mr.S.B. Yawalkar, A.G.P. for Respondent
 Nos. 1 to 4.
 Mr.U.S. Mote Advocate for Respondent
 Nos. 5 to 7.
 ...

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CORAM: S.S. SHINDE AND
 R.G. AVACHAT, JJ.

DATE OF RESERVING JUDGMENT : 4TH FEBRUARY, 2019
 DATE OF PRONOUNCING JUDGMENT: 13TH FEBRUARY, 2019

JUDGMENT [PER S.S. SHINDE, J.]:

1. Public Interest Litigation No.163 of
2016 has been filed by the Petitioner with

following substantive prayers:

“B) By issuing appropriate writ or order
direct respondents to take necessary
effective steps in illegal construction and
allotment of shops in Shopping Complex by
the Grampanchayat which are constructed on
the land which is used for the social and
cultural purpose of the Village Sirsala.

C) Respondent No.4 may kindly be directed to
seal the shops and conduct inquiry as per
the direction of Respondent Nos. 1 and 3
within the period of two weeks.”

2.

Writ Petition No.10558 of 2017 has been

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filed by the Petitioners, with following
substantive prayer:

“B. Rule may kindly be made absolute and
writ petition may kindly be allowed thereby
quashing and setting aside communication
dated 10.01.2017 issued by Respondent No.5
and directing Respondent s to permit the
Petitioners to occupy the shop premises in
terms of registered Leave and License
Agreement dated 02.01.2017.”

3. As the issues raised in the Public

Interest Litigation and Writ Petition are inter-
linked, both these Petitions i.e. Public Interest
Litigation and Writ Petition were taken up for
hearing together and are being decided by this
Common Judgment and Order.

4.In Public Interest Litigation No.163 of
2016, learned counsel appearing for the Petitioner
submits that, land Gut No.343 at village Sirsala,

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Tq-Parali-Vaijnath, Dist-Beed, is the only open
land available to the villagers for the cultural
programs, marriage ceremony and other social
activities. But Gram Panchayat, Sirsala has
started illegal construction of the shopping
complex over the said land, without obtaining
permission and without following due procedure of
law. Learned counsel further submits that the
Petitioner filed representation to the Respondents
regarding illegal construction started over the
Government land by Gram Panchayat, Sirsala. On 1st
June, 2016, villagers of village Sirsala filed
representation to the Chief Executive Officer,
Zilla Parishad, Beed complaining the illegal
construction of Shopping Complex by the Gram
Panchayat and requested to stop the same. Learned
counsel submits that, by letter dated 17th August,
2016, Desk Officer, Rural Development and Water
Conservation Department communicated to the Chief

Executive Officer, Zilla Parishad, Beed for

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conducting inquiry regarding illegal construction
of shopping complex started by Gram Panchayat. On

16thMay, 2016, Block Development Officer,
Panchayat Samiti, Parli Vaijnath, Dist-Beed,
directed Respondent No.4 - Village Development
Officer of Gram Panchayat to seal the shops from
newly constructed Shopping Complex at Sirsala and
conduct inquiry. Referring to the letters dated
19th July, 2016, and 4th November, 2016, issued by
Tahsildar, Parli Vaijnath, learned counsel submits
that by the said letters the Tahsildar directed
Respondent No.4 - Village Development Officer of
Gram Panchayat for conducting inquiry about the
illegal construction over the Government land.

5.Learned counsel appearing for the

Petitioner further submits that though all the
superior authorities of Respondent No.4 - Village
Development Officer of Gram Panchayat, directed to
conduct inquiry and submit report regarding

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illegal construction of the Shopping Complex at
the land Gut No.343, at village Sirsala and
further directed to seal the said shops during
such inquiry, no efforts in that directions were
made by Respondent No.4- Village Development
Officer of Gram Panchayat Sirsala. Hence, it is
submitted that the Petition deserves to be
allowed.

6.On the other hand, learned counsel

appearing for Respondent Nos.2 and 3, referring to
the reply filed on behalf of Respondent Nos.2
and 3, submits that the Petitioner informed to
Tahsildar at Parli Vaijnath by letter dated 9th
May, 2016, intimating that no action had been
taken against unauthorized construction of
shopping complex at village Sirsala, constructed
by the village Gram Panchayat, Sirsala. Learned
counsel submits that, in pursuance to the said
letter dated 9th May, 2016, Respondent No.3- Block

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Development Officer has immediately took the
action by informing the Village Development
Officer, Sirsala, by letter dated 16th May 2016, to
stop the unauthorized construction of the shopping
complex at Gut No.343 and submit the report.
Learned counsel further submits that by letter
dated 28th October, 2016, Respondent No.3 informed
the Village Development Officer, Sirsala to seal
the entire shopping complex constructed by Village
Gram Panchayat at Gut No.343 until inquiry is
completed. Learned counsel further submits that
the Tahsildar, Parli Vaijnath by letter dated 4th
November, 2016, issued the show cause notice to
the Village Development Officer, Sirsala to seal
the entire shopping complex until further inquiry
is completed.

7.Learned counsel appearing for Respondent

Nos.2 and 3 further submits that Respondent No.3

again issued letter on 13thDecember, 2016

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informing the Village Development Officer, Sirsala
to seal the entire shopping complex at Gut No.343.
Learned counsel further submits that Respondent
No.3 again intimated by letters dated 2nd January,
2017, and 5th January, 2017, to Village Development
Officer, Gram Panchayat, Sirsala to submit the
record in respect of acquisition of the plot for
development of the said village. However, the said
report was not submitted by Village Development
Officer.

8.Learned counsel appearing for Respondent
Nos.2 and 3 further submits that Respondent No.3
again issued letter dated 21st January, 2017,
informing the Village Development Officer, Sirsala
not to allot the shops constructed by the village
Gram Panchayat. It is further stated in the said
letter that action of giving allotment letters in
favour of 14 beneficiaries is against the
provisions of Section 51(1) of the Maharashtra

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Village Panchayat Act and further directed that no
permission would be granted to alienate, transfer
or any other mode in respect of the said shopping
complex and further directed to cancel the
allotment immediately.

9.Learned counsel further submits that
Respondent No.3 issued several letters and
communications to the Village Development Officer,
Gram Panchayat, Sirsala in respect of illegal
construction of shopping complex in Gut No.343 by
Gram Panchayat, Sirsala. Learned counsel further
submits that Village Development Officer, Gram
Panchayat, Sirsala is personally held responsible
for the illegal construction of shopping complex
and therefore, by order dated 24th January, 2017,
passed by the Chief Executive Officer, Zilla
Parishad, Beed, the concerned Village Development
Officer came to be suspended.

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10.Learned counsel further submits that in

pursuance of the Government letter dated 17th
August, 2016, and letter dated 21st February, 2017,
issued by Zilla Parishad, Beed, Respondent No.3 –
Block Development Officer has conducted and
completed the enquiry and submitted the report. It
is submitted that considering the entire aspect of
the matter, the concerned Village Development
Officer, Gram Panchayat, Sirsala, Sarpanch and
members of the Gram Panchayat are held responsible
for illegal construction of the shopping complex
and accordingly appropriate action has already
been taken against the Village Development
Officer. Hence it is prayed that the Petition may
be rejected.

11.In Writ Petition No.10558 of 2017,
learned counsel appearing for the Petitioners
submits that pursuant to general body resolution,
the shops are allotted to the Petitioners on leave

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and license basis for a period of eleven months,

and thus the Petitioners are the allottees of the
shops constructed by Gram Panchayat, on leave and
license basis. Learned counsel submits that
accordingly, leave and license agreement is
executed between the Petitioners and Gram
Panchayat. Learned counsel submits that despite
there being duly registered executed contract of
leave and license, the Respondent Authorities are
not permitting the Gram Panchayat or the
Petitioners to open the shops, which are subject
matter of this Petition. Learned counsel further
submits that the impugned order dated 10th January,
2017, passed by the Chief Executive Officer, Zilla
Parishad, Beed is contrary to the record available
with the concerned Authorities. Learned counsel
further submits that the impugned order is issued
on the incorrect presumption that the land in Gut
No.343 does not belong to the local body i.e. Gram
Panchayat. Learned counsel further submits that

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when the legal right is created in favour of the
Petitioners by executing agreement for leave and
license, the same cannot be denied on presumptions
and assumptions.

12.Learned counsel further submits that the
Petitioners filed application bearing Civil
Application No.9219 of 2017 seeking intervention
in Public Interest Litigation No.163 of 2016 and
this Court was pleased to dispose of the Civil
Application by granting liberty to the Petitioners
to file appropriate substantive proceeding. In
view of the liberty granted, present Petition is
filed praying therein to quash the impugned
communication dated 10th January, 2017, and further
seeking appropriate directions for permission to
occupy the shop premises on the basis of leave and
license agreement duly executed between the
parties. Hence it is prayed that Petition deserves
to be allowed.

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13.On the other hand, learned A.G.P.

appearing for the Respondent/State, referring to
the reply filed on behalf of Respondent Nos.1 to 4
in Writ Petition as well as in Public Interest
Litigation, submits that the Petitioners have
challenged the order dated 10th January, 2017
passed by the Chief Executive Officer, Zilla
Parishad, Beed, whereby the Chief Executive
Officer has categorically restrained the Gram
Panchayat, Sirsala, Panchayat Samiti, Parali from
executing any kind of agreement and restrained
from further allocation of shops constructed on
Government Gayran land bearing Gut No.343.
Referring to the order passed by the then
Commissioner, Aurangabad on 6th May, 1964, learned
A.G.P. submits that the land has been allocated to
Gram Panchayat, Sirsala for the purposes of
extension of existing Gavthan of village Sirsala.
Learned A.G.P. further submits that by order dated

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10th January, 2017, the Chief Executive Officer,
Zilla Parishad, Beed has directed Gram Panchayat,
Sirsala to stop construction, commercial complex
and further allotment of shops to the public at
large. The land occupied by Gram Panchayat has
been allotted by the Revenue Authority i.e.
Divisional Commissioner, Aurangabad Divsision,
Aurangabad for specific purpose of Gavthan/Wasti
under the relevant provisions prevailing then. It
is further submitted that the Government of

Maharashtra on 12thJuly, 2011, has issued
Resolution for giving occupancy of Gavthan land
adjacent to the village vicinities, and the
Government was of the view that Gavthan/Gayran
lands are kept open since long and same were being
used for the purposes of open land for grazing the
cattle, for celebrations of local festivals and
other relevant public purposes. Learned A.G.P.

further submits that the said Government

Resolution further restricts the transfer of

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Gayran land allotted to such village panchayat
except as provided in Government Resolution with
prior permission from the Competent Authority.
Learned A.G.P. further submits that as per the
said Government Resolution, Gram Panchayat has no
power either to transfer, change of occupancy or
disposal of any part of Gayran land, without there
being proper pre-approval from the Competent
Authority.

14.Learned A.G.P. further submits that it

appears from the record that before constructing
the said shopping complex, the Gram Panchayat has
not taken prior approval from the competent
authority for conversion, transfer or change of
use of the land. Learned A.G.P. further submits
that Respondent No.3 by various communications has
informed that the said shops in the shopping
complex are sealed and action against concerned
Village Development Officer has been taken and he

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was suspended. It is further submitted that
enquiry was conducted by Respondent No.3 and he
has submitted report dated 1st March, 2017, to
Deputy Chief Executive Officer, Zilla Parishad,
Beed. Learned A.G.P. further submits that before
constructing shopping complex, the Gram Panchayat
has not obtained permission as required under the
law and therefore, the said construction is
illegal. Hence it is prayed that the Petition may
be dismissed.

15.Learned counsel appearing for Respondent

Nos.5 to 7, referring to the reply filed on behalf
of Respondent No.7 submits that, by order dated 6th
May, 1964, the Divisional Commissioner allotted
land to the extent of 3 H. situated at village
Gram Panchayat Sirsala, to village Gram Panchayat
for the purpose of extension of Gavthan. In
pursuance of the said order, the Authority issued

directions not to tax the land under the

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Maharashtra Land Revenue Code, and entry was taken
in Namuna No.8. It is submitted that considering
the orders passed by the Divisional Commissioner
allotting land to village panchayat, the village
panchayat has decided to construct the shopping
complex and for the said purpose, raised its own
funds and constructed a shopping complex having
fourteen shops. Revenue entry in 7/12 extract is
already taken. Learned counsel further submits
that considering the nature of land i.e. allotment
of land is for the extension of Gavthan by the
Divisional Commissioner, the decision taken by the
Village Panchayat to construct shopping complex is
bona fide and for the benefits of the villagers.
Learned counsel submits that the action taken by
the village Panchayat is in accordance with law.

16.We have given careful consideration to
the submissions of the learned counsel appearing
for the Petitioner in Public Interest Litigation,

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learned A.G.P. appearing for the State, learned
counsel appearing for the Respondents, and also
learned counsel appearing for the Petitioners and
learned counsel appearing for the respective
Respondents in the Writ Petition.

17.The land in question, which is subject

matter of the Public Interest Litigation had been
allocated to the Gram Panchayat Sirsala, by the
Divisional Commissioner, Aurangabad Division,
Aurangabad vide order dated 6th May, 1964, bearing
Gut No.343 (Survey No.243 then) to the extent of
324.15 Acres situated at Village Sirsala, Tq-
Majalgaon, Dist-Beed. It further appears that the
said land was alloted under the provisions of
Section 25 of the Hyderabad Land Revenue Act, 1317
Fasli. It is seen from the perusal of the said
order, which is placed on record with the
affidavit in reply by Respondent Nos.1 to 4, that,

the land has been allotted for the purpose of

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extension of existing Gavthan of village Sirsala.
It has been stated in the affidavit that revenue
entry to that effect has been carried out in the
revenue records in the name of Gram Panchayat
Sirsala, and the purposes mentioned in the entry
is “for Vasti-Wadi” in other column. The affidavit
categorically mentions that the said land was
allotted for specific purpose of Gavthan/Wasti,
under the relevant provisions prevailing then.
There is also reference to the Resolution issued
by the Government of Maharashtra on 12th July,
2011, for giving occupancy of Gavthan land
adjacent to village vicinities. The purpose of
giving such land has been mentioned in the
introduction part of the said Resolution that, the
Government was of the view that Gavthan/Gayran
lands are kept open since British era and same
were used for the purposes of open land for
grazing the cattle, for celebrations of local
Jatra and other relevant public purposes. The said

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Government Resolution further restricts the
transfer of Gayran land allocated to such Village
Panchayat except as provided in Government
Resolution with prior permission from the
competent authority as stated in the Government
Resolution. It is specifically stated in the reply
that Gram Panchayat has no power either to
transfer, change of occupancy or disposal of any
part of Gayran land as contemplated in the
Government Resolution without there being proper
pre-approval from the competent authority. There
is also reference to the letter written by the
Chief Executive Officer, Zilla Parishad, Beed,
dated 10th January, 2017, addressed to the Gram
Panchayat that, at no point of time prior approval

has been accorded to the Gram Panchayat for
conversion, transfer or change of use of land from
the competent authority i.e. Chief Executive
Officer, Zilla Parishad, Beed and the District
Collector, Beed.

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18.It is also seen from various documents

placed on record that, multiple communications
were issued to concerned Gram Panchayat, not to
carry out the illegal construction. The Petitioner
in the Public Interest Litigation has also given
number of representations and applications to the
Gram Panchayat, not to go ahead with the said
construction since that land has been ear-marked
for the aforesaid purposes stated in the affidavit
in reply and also original order passed by the
Divisional Commissioner, Aurangabad Division,
Aurangabad. Such representations and applications
given by the Petitioner are dated 6th May, 2015, 4th
March, 2016, 9th May, 2016, 23rd May, 2016, 1st June,
2016, the copies of said representations are
placed on record by the Petitioner in the Public
Interest Litigation. However, in total disregard
to the directions issued by the Tahsildar, Parali
Vaijnath, Chief Executive Officer, Zilla Parishad,

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Beed, the Gram Panchayat, Sirsala, illegally
proceeded to construct the shopping complex,
thereby depriving the villagers from utilizing the
said land for the purposes for which it was
allotted by the Divisional Commissioner,

Aurangabad Division, Aurangabad.

19.It is also relevant to mention that the
Gram Panchayat, Sirsala had no authority for
erection, construction of such shopping complex.
There is over-whelming material placed on record
by the Respondents that though the Gram Panchayat
was fully aware that there is no any prior
permission to construct shopping complex which
exercise was undertaken by the Gram Panchayat
contrary to the purposes for which said land was
allotted, still the Gram Panchayat has proceeded
further to construct the said shopping complex. It
is not necessary for us to make reference to each
and every documents placed on record, since every

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thing is made clear in the affidavit in reply
filed by Respondent Nos.1 to 4 in the Public
Interest Litigation and also Writ Petition.

20.The contention of the counsel appearing
for the private Respondents and Gram Panchayat
that, since the shopping complex has now been
constructed, the same may be allowed to be used,
from which the villagers at Sirsala may be
benefited, deserves no consideration. It is
abundantly clear that construction of such
shopping complex was illegal, contrary to the
purposes for which such land was alloted and that
too without prior permission from the competent
authority i.e. Divisional Commissioner, Aurangabad
Division, Aurangabad, who has allotted the said
land. Therefore, merely because the shopping
complex is constructed and which is now in sealed
condition, if allowed to be used by the Gram

Panchayat, it would be allowing to further

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perpetuate the illegalities already committed by
the Gram Panchayat, which, by any standard, cannot
be countenanced and permitted.

21.Writ Petition No.10558 of 2017 is filed

by the Petitioners agitating that leave and
license agreement is executed in their favour by
the Gram Panchayat and therefore right is created
with them, is devoid of any merits. When the
entire construction itself was illegal and
contrary to the purposes for which the said land
was alloted in favour of Gram Panchayat, the Gram
Panchayat had no authority of whatsoever nature to
further continue and perpetuate the illegalities
thereby executing such leave and license
agreement.

22.Learned counsel appearing for the

Petitioners in Writ Petition No.10558 of 2017, in

support of his submissions, has placed reliance

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upon the ratio laid down in the case of Narayan
Wamanrao Charade and others vs. State of
Maharashtra and others1, wherein, after considering
the facts of the said case, it is held that, no
notice was issued by the Divisional Commissioner
to the appellants therein before passing orders of
their eviction, hence action for eviction of the
appellants and notice issued for that purpose is
in breach of principles of natural justice and
therefore, notice of eviction is liable to be
quashed. We have carefully perused the ratio laid
down in the reported case, cited supra, and we are
of the considered opinion that the ratio laid down
in the said case is not applicable to the facts of
the present case.

22.Upon perusal of the documents placed on

record by the State and its authorities, and also
the Petitioner in Public Interest Litigation, it

12007(4) Mh.L.J. 91

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is abundantly clear that during the course of such
illegal construction, time to time the Gram
Panchayat was informed to stop such illegal
construction and thereafter by the order passed by
the competent authority, the said shopping complex
was sealed. Therefore, in our considered opinion,
the Petitioners in the Writ Petition No.10558 of
2017 have no right to assert and therefore, their
contention deserves no consideration. If any
amount is taken by the Gram Panchayat from the
said Petitioners against alleged leave and license

agreement, the Petitioners in the Writ Petition
would be entitled to recover the said amount by
resorting to the remedies as available in law.

23.In the light of discussion in foregoing
paragraphs and keeping in view the stand taken by
the State and its authorities that, the said land
was allotted for the specific purpose and the Gram
Panchayat illegally used the said land for the

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purpose of construction of shopping complex
contrary to the written instructions issued to the
Gram Panchayat, in our considered opinion, the
Public Interest Litigation deserves to be allowed
and the Writ Petition deserves to be dismissed.

24.Accordingly, we hold and declare that the
construction of shopping complex by Gram
Panchayat, Sirsala at village Sirsala, Tq-Parali
Vaijnath, Dist-Beed, in land Gut No.343, was
totally illegal and contrary to the purpose for
which aforesaid land was allotted to the Gram
Panchayat. The activities undertaken by the Gram
Panchayat, Sirsala to go ahead with the said
construction of the shopping complex, contrary to

the instructions issued by the competent
authorities was illegal exercise.

25.Since the Divisional Commissioner,

Aurangabad Division, Aurangabad is the ultimate

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authority, who has allotted the aforesaid land,
which has been illegally utilized and used by Gram
Panchayat, Sirsala for construction of shopping
complex, in our opinion, the concerned authorities
to send the file for approval to the Divisional
Commissioner, Aurangabad Division, Aurangabad, for
further action to be taken in respect of said
shopping complex, for taking decision either for
demolition of said shopping complex or to explore
the possibility of using the said shopping complex
purely for the benefit of the villagers at
Sirsala, such as community hall for marriage, for
some sports activities for the use of villagers,
Weekly Bazar, or any other purposes which would
satisfy and cater the need of entire villagers of
village Sirsala, but certainly not the shopping
complex.

26.The Divisional Commissioner, Aurangabad

Division, Aurangabad, will have complete liberty

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either to pass an appropriate orders to demolish
the said shopping complex, or to put it for the
public purposes, in view of the discussion in
foregoing paragraphs.

27.The said decision to be taken by the
Divisional Commissioner, Aurangabad Division,
Aurangabad, as expeditiously as possible, however,
in any case, within TWO MONTHS from the date of
receiving the copy of this order.

28.Rule is made absolute in above terms in

the Public Interest Litigation. Public Interest
Litigation No.163 of 2016 is allowed and the same
stands disposed of, accordingly.

dismissed.