Case Note & Summary
The petitioner, Gajanan Susar, was elected as a member of the Gram Panchayat of village Jamb in August 2009. The respondent no.3 filed an application under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958 before the Additional Collector, Buldhana, alleging that the petitioner had encroached upon 'F' class land (Gat No.204) and constructed a house, thereby disqualifying him. The petitioner contended that his great-grandfather had applied for and was granted 4 gunthas of land from the gaothan land for residential purposes, and that the family had been in possession since 1923. The Additional Collector, by order dated 16/12/2010, disqualified the petitioner, and the Additional Commissioner, by order dated 10/3/2011, dismissed the revision. The petitioner challenged both orders under Articles 226 and 227 of the Constitution. The High Court examined the record and found that the petitioner's family had been granted the land by the government and had been in possession since 1923, as evidenced by an agreement executed before the Tahsildar in 1923. The Court held that the petitioner's possession was lawful and did not constitute encroachment. The Court quashed the orders of the Additional Collector and Additional Commissioner, allowing the petition and setting aside the disqualification.
Headnote
A) Bombay Village Panchayat Act, 1958 - Section 14(1)(j3) - Disqualification - Encroachment - Government Grant - The issue was whether the petitioner, who was granted land by the government for residential purposes and was in possession, could be disqualified as an encroacher. The Court held that the petitioner's possession was lawful under the government grant and did not amount to encroachment, thus the disqualification was unsustainable. (Paras 3-5)
Issue of Consideration
Whether a person who has been granted land by the government for residential purposes and is in possession thereof can be termed as an 'encroacher' under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958 so as to be disqualified from being a member of the Gram Panchayat.
Final Decision
The petition is allowed. The order dated 16/12/2010 passed by the Additional Collector, Buldhana and the order dated 10/3/2011 passed by the Additional Commissioner, Amravati Division are quashed and set aside. The disqualification of the petitioner is set aside. Rule is made absolute accordingly.
Law Points
- Encroachment under Section 14(1)(j3) of Bombay Village Panchayat Act
- 1958 requires unauthorized occupation
- government grant of land for residential purpose does not constitute encroachment
- possession under government grant is lawful and cannot be basis for disqualification
Case Details
2011 LawText (BOM) (06) 158
Writ Petition No.1409 of 2011
Mr. N.B. Kalwaghe for petitioner, Mr. A.D. Sonak AGP for respondent nos.1 and 2, Mr. A.J. Kadu for respondent no.3
The Additional Commissioner, Amravati Division, Amravati; The Additional Collector, Buldhana; Sampat s/o Laxman Susar
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging orders of disqualification under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958.
Remedy Sought
The petitioner sought quashing of the order dated 16/12/2010 passed by the Additional Collector, Buldhana disqualifying him, and the order dated 10/3/2011 passed by the Additional Commissioner dismissing his revision.
Filing Reason
The petitioner was disqualified as a member of the Gram Panchayat on the ground of encroachment, which he contended was lawful possession under a government grant.
Previous Decisions
The Additional Collector, Buldhana by order dated 16/12/2010 disqualified the petitioner under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958. The Additional Commissioner, Amravati Division by order dated 10/3/2011 dismissed the revision filed by the petitioner.
Issues
Whether the petitioner can be termed as an encroacher under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958 when the land was granted by the government for residential purposes and the family has been in possession since 1923.
Submissions/Arguments
Petitioner argued that his great-grandfather was granted 4 gunthas of land from gaothan land (Gat No.204) for residential purposes, and the family has been in possession since 1923, as evidenced by an agreement executed before the Tahsildar. Therefore, the possession is lawful and not encroachment.
Respondent no.3 contended that the petitioner encroached on 'F' class land and constructed a house, making him liable for disqualification under Section 14(1)(j3).
Ratio Decidendi
A person who has been granted land by the government for residential purposes and is in lawful possession thereof cannot be termed as an 'encroacher' under Section 14(1)(j3) of the Bombay Village Panchayat Act, 1958. The disqualification under the said provision applies only to unauthorized occupation, not to possession under a government grant.
Judgment Excerpts
The issue before the Authorities whilst considering the application made under Section 14(1)(j3) of the said Act was; as to whether the petitioner can be termed as an encroacher so as to entail the disqualification under the provisions of the said Act.
It is further case of the petitioner that it is since then that the petitioner’s family is in possession of the said plot as granted by the government.
In the aftermath of the elections to the Grampanchayat of the said village Jam, which took place sometime in August 2009, the respondent no.3 herein filed an application under Section 14(1)(j3) of the said Act before the respondent no.2 and therein contended that the petitioner has encroached on the ‘F’ class land and constructed house thereon.
Procedural History
The petitioner was elected as a member of Gram Panchayat in August 2009. Respondent no.3 filed an application under Section 14(1)(j3) before the Additional Collector, Buldhana. The Additional Collector by order dated 16/12/2010 disqualified the petitioner. The petitioner filed a revision before the Additional Commissioner, Amravati Division, which was dismissed by order dated 10/3/2011. The petitioner then filed the present writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Bombay Village Panchayat Act, 1958: Section 14(1)(j3)
- Constitution of India: Articles 226, 227
