Case Note & Summary
The petitioner, Ganesh Shankar Landge, was elected as a member of Gram Panchayat Mhaismal. The respondent No.4, Sakru Ganu Rathjod, also a member, contested for the post of Sarpanch but was defeated. Allegedly bearing a grudge, the respondent No.4 filed an application before the Additional Collector under Section 14(1)(j-3) of the Bombay Village Panchayats Act, 1958, seeking the petitioner's disqualification on the ground that the petitioner had encroached upon government land. The Additional Collector, by order dated 13/12/2010, dismissed the application, holding that encroachment was not conclusively proved. Aggrieved, the respondent No.4 appealed under Section 16(2) of the Act before the Additional Commissioner, Amravati Division. In the appeal, the respondent No.4 sought to rely on a report of the Talathi (a revenue official) which he had procured himself. The petitioner objected to the introduction of this new evidence at the appellate stage, as it was not produced before the Additional Collector. Despite the objection, the Additional Commissioner allowed the appeal, relying heavily on the Talathi report, and disqualified the petitioner. The petitioner then filed a writ petition under Articles 226 and 227 of the Constitution challenging the appellate order. The High Court observed that the Talathi report was procured by the respondent No.4 without any direction from the authority and was not part of the original record. The appellate order was ex facie based on this report. The court held that the appellate authority could not rely on such evidence without ordering its submission and without giving the petitioner a fair opportunity to contest it. Consequently, the High Court quashed the impugned order and remanded the matter to the Additional Commissioner for fresh consideration, directing that the Talathi report be kept aside and that the appeal be decided on the basis of the material that was before the Additional Collector. The petition was allowed with no order as to costs.
Headnote
A) Panchayat Law - Disqualification of Member - Section 14(1)(j-3) Bombay Village Panchayats Act, 1958 - Encroachment on Government Land - The petitioner was elected as a member of Gram Panchayat Mhaismal. The respondent No.4 filed an application for disqualification alleging encroachment. The Additional Collector dismissed the application holding that encroachment was not conclusively proved. On appeal, the Additional Commissioner allowed the appeal relying on a Talathi report procured by the respondent No.4 himself, which was not produced before the original authority. The High Court held that the appellate authority could not rely on such a report without ordering its submission and without giving the petitioner a fair opportunity to contest it. The impugned order was quashed and the matter remanded for fresh consideration. (Paras 2-6) B) Civil Procedure - Appellate Evidence - Fresh Evidence at Appellate Stage - The appellate authority cannot consider evidence that was not part of the original record unless it is obtained through proper procedure and the opposite party is given an opportunity to respond. The report procured by the respondent No.4 without authority's direction was held to be improperly relied upon. (Paras 4-5)
Issue of Consideration
Whether the Additional Commissioner could rely on a Talathi report procured by the respondent No.4 at the appellate stage without the report being ordered by the authority and without giving the petitioner an opportunity to cross-examine or object effectively.
Final Decision
The High Court allowed the writ petition, quashed the order dated 06/06/2011 passed by the Additional Commissioner, and remanded the matter to the Additional Commissioner for fresh consideration. The Additional Commissioner was directed to keep aside the Talathi report and decide the appeal on the basis of the material that was before the Additional Collector. No order as to costs.
Law Points
- Appellate authority cannot rely on fresh evidence procured by a party without prior permission of the court
- Natural justice requires that evidence not produced before the original authority cannot be introduced at appellate stage without proper application and opportunity to object
- Section 14(1)(j-3) Bombay Village Panchayats Act
- 1958 - Disqualification for encroachment on government land requires conclusive proof
