Vimalbai Manusingh Thakur v. The Additional Commissioner and Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5098 OF 2022 Vimalbai Manusingh Thakur Age: 58 years, Occu: Agriculture and Sarpanch of Village Panchayat, R/o: Kalambar (Bu), Tq.: Loha, Dist: Nanded. …..PETITIONER VERSUS

¶1The Additional Commissioner, Aurangabad

¶2The Collector, Nanded Collector Office, Nanded.

¶3Block Development Officer, Panchayat Samiti Loha Tq. Loha, Dist: Nanded.

¶4Village Development Officer, Village Panchayat office, Kalambar (Bu), Tq. Loha, Dist: Nanded.

¶5Sunil Govindappa Mukkanwar Age: Major, Occu: Agriculture & Member of Village Panchayat, Kalambar (Bu) R/o. Kalambar (Bu) Tq: Loha, Dist: Nanded. …..RESPONDENTS ______________________________________________________ Mr. M. V. Salunke h/f Mr. V. D. Salunke, Advocate for the Petitioner Mr. N. D. Raje, AGP for Respondents-State Mr. S. B. Pulkundwar, Advocate for Respondent no.3 Mr. V. B. Kulkarni, Advocate for Respondent no.5 ______________________________________________________ 2025:BHC-AUG:18907 WITH WRIT PETITION NO. 5100 OF 2022 Manusingh Sardarsingh Thakur Age: 62 years, Occu: Agriculture and Member of Village Panchayat, R/o: Kalambar (Bu), Tq.: Loha, Dist: Nanded. …..PETITIONER VERSUS

¶1The Additional Commissioner, Aurangabad

¶2The Collector, Nanded Collector Office, Nanded.

¶3Block Development Officer, Panchayat Samiti Loha Tq. Loha, Dist: Nanded.

¶4Village Development Officer, Village Panchayat office, Kalambar (Bu), Tq. Loha, Dist: Nanded.

¶5Sunil Govindappa Mukkanwar Age: Major, Occu: Agriculture & Member of Village Panchayat, Kalambar (Bu) R/o. Kalambar (Bu) Tq: Loha, Dist: Nanded. …..RESPONDENTS ______________________________________________________ Mr. M. V. Salunke h/f Mr. V. D. Salunke, Advocate for the Petitioner Mr. N. D. Raje, AGP for Respondents-State Mr. S. B. Pulkundwar, Advocate for Respondent no.3 Mr. V. B. Kulkarni, Advocate for Respondent no.5 ______________________________________________________ CORAM : ROHIT W. JOSHI, J. DATED : 07TH JULY, 2025 ORAL JUDGMENT :- . The petitioner in the Writ Petition No.5098 of 2022 is wife of petitioner in Writ Petition No.5100 of 2022. Both the petitioners were initially elected as Members of Gram Panchayat, Kalambar, (Bu) Tq. Loha Dist. Nanded. Thereafter, the petitioner in Writ Petition No.5098 of 2022 was elected as Sarpanch of the Gram Panchayat. The respondent no.5 in both the petitions had made an application seeking disqualification of the petitioners on the ground that they had made encroachment over public properties. The allegation against petitioner in Writ Petition No.5098 of 2022 is that she has made encroachment over property nos.596 and

¶759The allegation against the petitioner in Writ Petition No.5100 of 2022 is that he had encroachment over the property nos.376, 377 and 378 of (Gaothan) and Survey No.595, Namuna No.103 i.e. property no.103 recorded in form no.8A in the record maintained by the concerned Gram Panchayat. On being noticed in the matter, the petitioner in Writ Petition No.5098 of 2022 filed reply denying the fact of encroachment it is stated in paragraph no.2 of the reply as under: 2-gs dh] fookn eseksP;k ifjPNsn dz-3 e/khy etdqj /kkankr [kksVk vlwu izfroknhyk ekU; ukgh-dkj.k izfroknhus xzkeiapk;rP;k feGdr dz-596 oj o R;kp izek.ks feGdr dz 759 g;k tkxsoj dks.kR;kgh izdkjps vukf/kd`r vfrdze.k dsysys ukgh-lnj tkxsph ekydh gh izfroknhP;k ukokus vkgs-izfroknh gk lnj feGdrh ckcr xzkeiapk;r dk;kZy;kr njo"khZ djkpk Hkj.kk djrks-Eg.ktsp lnjhy feGdr gh izfroknhph fu;ekuqdqy o dk;ns'khj gDdkph feGdr vkgs-R;keqGs izfroknhus ojhy iSdh dks.kR;kgh feGdrhoj vukf/kd`r vfrdzek.k dsysys ukgh-R;keqGs fooknhpk fookn vtZ [kksVk] pqdhpk] o csdk;ns'khj vlY;keqGs QsVkG.;kr ;kok-Similarly, the petitioner in Writ Petition No.5100 of 2022, has filed reply wherein, in paragraph nos.2 and 4, it is stated as under: 2-gs dh] fookn eseksP;k ifjPNsn dz-3 e/khy etdqj /kkankr [kksVk vlwu izfroknhyk ekU; ukgh-dkj.k izfroknhus xzkeiapk;rP;k feGdr dz-376] 377] 378 R;kp izek.ks 'ksr tehu losZ ua-595 xko uequk ua 103 g;k tkxsoj dks.kR;kgh izdkjps vukf/kd`r vfrdzek.k dsysys ukgh-lnj tkxsph ekydh gh izfroknhP;k ukokus vkgs-izfroknh gk lnj feGdrh ckcr xzkeiapk;r dk;kZy;kr njo"khZ djkpk Hkj.kk djrks-Eg.ktsp lnjhy feGdr gh izfroknhph fu;ekuqdqy o dk;nsf'kj gDdkph feGdr vkgs-R;keqGs izfroknhus ojhy iSdh dks.kR;kgh feGdrhoj vukf/kd`r vfrdze.k dsysys ukgh-4-gs dh] fookn eseksP;k ifjPNsn dz-6 e/khy etdqj /kkankr [kksVk vlwu izfroknhyk ekU; ukgh-dkj.k xkokrhy 'ksr tehu losZ ua-595 g;k tkxsr feGDr dz-103 oj izfroknhus vukf/kd`r vfrdze.k dsysys ukgh-,danjhr izfroknhus xzkeiapk;r feGdr dz-376] 377] 378 rlsp feGdr dz-103 g;k feGdrhoj vukf/kd`rfjR;k vfrdze.k dsysys ukgh-g;k feGdrhph uksan xzkeiapk;rP;k uequk ua-8 e/;s izfroknhP;k ukokph uksan vlqu izfroknh gk R;k tkxspk VWDl Hkjrks-R;keqGs fooknhpk fookn vtZ [kksVk o pqdhpk vlY;keqGs QsVkG.;kr ;kok v'kh fouarh vkgs-

¶2Perusal of the replies will demonstrate that the petitioner in Writ Petition No.5098 of 2022 claims ownership over suit property nos.596 and 759. It is categorically stated that she is paying taxes with respect to both the properties and on that basis, it is stated that in view of fact that she is paying taxes for the said properties regularly, she has rights over the said property in accordance with law. In view of this, the statement is made that she cannot be said to be an encroacher with respect to the said properties.

¶3The reply by the petitioner in Writ Petition No.5100 of 2022, who is the husband of petitioner in 5098 of 2022 is also on similar lines. He too claims entitlement to the properties on the ground that he is regularly paying taxes with respect to the properties alleged to be encroached by him. Like the wife, the case of husband is also that because he is paying the taxes, he cannot be said to be an encroacher.

¶4The Collector, who is the Competent Authority to rule on the issue of disqualification has held that both the husband and wife have incurred disqualification on account of unauthorized encroachment over the Government/Gram Panchayat lands.

¶5The petitioners have preferred appeals against the respective orders passed against them under Section 16 of the said Act. The Appellate Authority i.e. the Additional Divisional Commissioner has dismissed both the appeals.

¶6Mr. Salunke, learned Advocate for the petitioners contends that in both the matters, spot inspection was directed to be conducted by the Block Development Officer. He contends that the inspection reports by the Block Development Officer do not indicate the exact nature of alleged encroachment. He states that there is no allegation of any construction over the alleged lands or even erection of fencing etc. to infer physical possession of the petitioners over the said lands. He attacks the findings recorded by the learned Collector contending that the Collector has not applied his mind independently and has merely passed order of disqualification placing reliance on the report by the Block Development Officer. His contention is that the order passed by the Collector does not indicate application of independent mind. The contention of the learned Advocate with respect to the appeal order passed by the Additional Divisional Commissioner is also the same. He therefore contends that both these orders are unsustainable and are liable to be quashed.

¶7Per contra, the learned Advocates appearing for the respondents justify the orders. Principal contention of learned Advocate for the respondent no.5 is that in the replies filed by both the petitioners before the Collector, the fact of encroachment is expressly admitted. He has referred to the aforesaid paragraphs and the replies of both the petitioners.

¶8Having heard the respective submissions as aforesaid and on perusal of the record of the case as also both the orders impugned, I am of the considered opinion that there is substance in the submission of Mr. Salunke that the learned Authorities have not recorded proper findings on the aspect of encroachment. The learned Collector has merely recorded as the Block Development Officer has stated in the report that the petitioners have made encroachment in respective lands. It is then observed by the Collector that there are entries with respect to this encroachment in the Gram Panchayat records, which have since then not been corrected by the petitioners although the petitioners hold the office of Sarpanch and Member in the Gram Panchayat. The appeals are also rejected recording similar findings.

¶9Normally, the petition would have been allowed in view of such findings recorded by the authorities. However, in the present case, I am not inclined to interfere with the impugned orders in view of express statement in the reply admitting possession over lands which are not owned by the petitioners. The contention of the petitioners as is apparent from the reply is that they cannot be termed to be encroachers because they are paying taxes with respect to the lands which are in their possession. It is now well settled that only because a person in wrongful possession of property belonging to the Government or Public Authority makes payment of taxes or fine for such possession, the possession cannot be said to be legal or authorized. Such possession despite the payment of taxes or fine shall continue to be an unauthorized possession or an encroachment.

¶10Shri Salunke has contended that the petitioners are owners of properties bearing Gram Panchayat property no.596, 376, 377 and 378. However, admittedly, the petitioners are not owners of property no.759 and Survey No.595 i.e. property no.103.

¶11Mr. Salunke further contends that the petitioners cannot be said to be encroachers of the subject property having regard to Section 53 of the Maharashtra Village Panchayats Act. He contends that physical possession over the property is necessary in order to hold that a person has encroached over public property. The contention must fail, having regard to the express words employed under Section 53. All the words will imply that provision contemplates encroachment of every nature and not only encroachment by making construction activity over the property. The contention of Mr. Salunke is therefore liable to be rejected.

¶12Perusal of the reply will indicate that these properties which are admittedly not owned by the petitioners are the properties of Gaothan, are in possession of the petitioners. In view of the aforesaid, since facts admitted in the replies indicate encroachment by the petitioners over Public property, this Court is not inclined to show any indulgence in favour of the petition. Both the Writ Petitions are therefore dismissed.

¶13Civil Application, if any, stands disposed of. ( ROHIT W. JOSHI, J. ) Rushikesh/2025