Case Note & Summary
The petitioner, Sau. Sandhya Hemant Salunke, was elected as a member of Walwadi Gram Panchayat in 2010 and subsequently as Sarpanch. Respondents 5 and 6, defeated candidates, filed a complaint on 20.7.2012 alleging that the petitioner had encroached upon public premises by constructing a compound wall around an open space adjacent to her house, thereby incurring disqualification under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958. The complaint was initially rejected by the Additional Collector, Dhule, on 8.10.2012, concluding that there was no encroachment on public or government land. Respondents 5 and 6 appealed to the Divisional Commissioner, Nashik, who partly allowed the appeal on 12.3.2012 and remanded the matter back to the Additional Collector. On remand, the Additional Collector again dismissed the complaint on 12.6.2013, finding no encroachment after considering the panchanama, title documents showing the property in the name of the petitioner’s mother-in-law, and the absence of measurement or local witness statements. Aggrieved, the respondents preferred a further appeal before the Additional Commissioner, Nashik (Gram Panchayat Appeal No.51 of 2013). The Additional Commissioner, by order dated 15.11.2013, allowed the appeal, set aside the Additional Collector’s decision, and declared that the petitioner had incurred disqualification. The Additional Commissioner based the decision on findings that the compound wall was constructed by the petitioner’s family, the open space was used for personal purposes, and the Sub Divisional Officer’s report was favourable to the petitioner. During the pendency of the litigation, the petitioner resigned from the post of Sarpanch out of frustration. The petitioner filed the present writ petition challenging the Additional Commissioner’s order. Before the High Court, the petitioner relied on the decision in Shantaram Narayan Raut v. Additional Collector, Nashik (2012(6) Mh.L.J. 790), which held that designation of open spaces in private layouts does not by itself make them public property, and that such spaces do not vest in the State without acquisition. The Supreme Court’s decision in Pt. Chet Ram Vashist v. Municipal Corporation of Delhi (AIR 1995 SC 430) was also cited for the proposition that reservation of sites in a layout is for public purposes but does not automatically divest the private owner of legal title. The High Court noted these precedents and the factual findings of the authorities. However, the provided judgment text is incomplete and does not record the final operative order of the Court.
Issue of Consideration
Whether the petitioner incurred disqualification as a member of the Gram Panchayat under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958 on the ground of alleged encroachment upon public premises or Government land; and whether the Additional Commissioner’s order holding disqualification was legally sustainable.
Law Points
- Disqualification under Section 14(1)(j3) of Bombay Village Panchayats Act
- 1958 for encroachment
- public property vs private open space
- open space in private land not automatically public property
- necessity of acquisition for vesting in State
Case Details
2014 LawText (BOM) (04) 13
Writ Petition No. 9855 of 2013
Shri Hon Vinayak D., Shri Kale D.R., Shri Sawant A.S.
Sau. Sandhya Hemant Salunke
The State of Maharashtra, Through the Secretary for Rural Development Department, Mantralaya, Mumbai; The Divisional Commissioner, Nashik Division, Nashik; The Additional Collector, Dhule; The Gram Panchayat Walwadi, Tq. and Dist. Dhule, Through its Village Development Officer; Sau. Vandana Peasantry Patil; Sau. Sandhya Ashok Chaudhari
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Nature of Litigation
Writ petition challenging the order of the Additional Commissioner, Nashik, which held that the petitioner had incurred disqualification as a member of the Gram Panchayat under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958 for alleged encroachment.
Remedy Sought
The petitioner sought quashing of the Additional Commissioner’s order dated 15.11.2013 and consequently, her disqualification.
Filing Reason
The petitioner, elected member and Sarpanch of Walwadi Gram Panchayat, was disqualified by the Additional Commissioner on a complaint of encroachment filed by respondents 5 and 6. She filed the writ petition challenging the disqualification order.
Previous Decisions
The complaint was initially rejected by the Additional Collector on 8.10.2012, but on appeal, the Additional Commissioner remanded it back. On remand, the Additional Collector again rejected the complaint on 12.6.2013. On a second appeal, the Additional Commissioner allowed the appeal on 15.11.2013 and declared the petitioner disqualified.
Issues
Whether the petitioner had encroached upon public premises or Government land so as to incur disqualification under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958?
Whether the Additional Commissioner’s order dated 15.11.2013 was legally sustainable?
Submissions/Arguments
Petitioner argued that the alleged encroachment was on private land and not on public property, and thus Section 14(1)(j3) did not apply. Reliance placed on Shantaram Narayan Raut v. Additional Collector, Nashik.
Respondents 5 and 6 contended that the petitioner through her family constructed a compound wall enclosing an open space adjacent to her house, thereby encroaching on public land and using it for personal purposes, incurring disqualification.
Judgment Excerpts
The petitioner is elected as Member of Walwadi Gram Panchayat in the elections held in 2010.
By an order dated 8.10.2012, the Additional Collector was pleased to hold that the complaint had no merits.
The Additional Commissioner has concluded that the encroachment has been carried out by the petitioner alone and she alone needs to be held responsible for the said encroachment.
The open space in the village meant for use by the public or members of public or villagers is certainly a public property, but if that concept is to be extended to spaces which are earmarked as open but in a private land that would mean that the earmarking or designation makes it a public property.
What the Hon’ble Supreme Court holds is that ‘reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general.’
Procedural History
The petitioner was elected as a member of Walwadi Gram Panchayat in 2010 and subsequently as Sarpanch. On 20.7.2012, Respondents 5 and 6 filed a complaint alleging encroachment (Gram Panchayat Dispute No.13 of 2012) which was rejected by the Additional Collector on 8.10.2012. On appeal (Appeal No.158 of 2012), the Additional Commissioner remanded the matter on 12.3.2012. Upon fresh consideration (Gram Panchayat Dispute No.2 of 2013), the Additional Collector again dismissed the complaint on 12.6.2013. The respondents again appealed (Gram Panchayat Appeal No.51 of 2013), and on 15.11.2013, the Additional Commissioner allowed the appeal, set aside the Additional Collector’s order, and held that the petitioner had incurred disqualification under Section 14(1)(j3) of the Bombay Village Panchayats Act, 1958. The petitioner challenged this order by filing the present writ petition.
Acts & Sections
- Bombay Village Panchayats Act, 1958: 14(1)(j3)
