(1) The petitioner who was elected as Sarpanch of Gram Panchayat Gawandgaon, has filed this writ petition challenging her disqualification from the
said elected position of Sarpanch under Section 14(1)(j-3) of the Maharashtra Village Panchayat Act, 1959. It is the contention of the petitioner that
the order passed by the respondent No.2 Collector, Akola, holding that she stood disqualified under the said provision is not in consonance with law
and that the respondent No.1 Divisional Commissioner Amravati also erred in dismissing her appeal filed under Section 16(2) of the aforesaid Act.
While issuing notice in this writ petition on 03/05/2019, this Court recorded the contention raised on behalf of the petitioner that her case was covered
by judgment of this Court in the case of Shantaram Narayan Raut vs. Additional Commissioner, 2012 Mh.L.J. 790 and on that basis ad-interim relief
was granted in her favour, as a consequence of which she has continued in the said position of Sarpanch of the Gram Panchayat.
(2) In October 2017, the petitioner was directly elected as Sarpanch of the Gram Panchayat under the provisions of the said Act. The respondent
No.4 filed an application on 07/12/2017 before the respondent No.2 Collector, claiming that the petitioner had incurred disqualification under Section
14(1)(j-3) of the aforesaid Act, as she and her husband had encroached upon Government land. It was claimed that the petitioner and her husband had
constructed house on open land in layout of Pandit Nehru Backward Class Housing Society by encroaching upon open land and that therefore, the
petitioner deserved to be disqualified under the said provision. It was claimed that the land had been given for occupation to the aforesaid Society to
facilitate construction of houses for members of the Society belonging to backward classes. The portion of the open land on which the petitioner and
her husband had committed encroachment was under the ownership of the Government and that therefore, the disqualification was clearly made out.
This was opposed by the petitioner by claiming that the land had been made over to the aforesaid society in accordance with law and that the record
of the Gram Panchayat demonstrated that the name of the petitioner and her husband was recorded in respect of the land on which the construction
had been made. On this basis it was submitted that the application filed by respondent No.4 deserved to be rejected.
(3) Upon receipt of the said application of respondent No.4, the respondent No.2 Collector instituted the proceeding as per Section 16 of the said Act.
A report was called from the Talathi of Gawandgaon and in the said report the Talathi submitted before the Collector that the petitioner and her
husband had indeed constructed house in open land in the aforesaid layout of the Society. On the basis of the material on record and the contentions
raised by the rival parties, the respondent No.2 Collector by order dated 07/12/2018, held that the land in question was F-Class land belonging to the
Government and it had been transferred from the Gram Panchayat to the aforesaid Society for construction of houses for its members. The
respondent No.2 Collector came to the conclusion that the land in question could not be said to be private land and the material on record sufficiently
indicated that the petitioner had incurred disqualification under Section 14(1)(j-3) of the aforesaid Act. Accordingly, the application of the respondent
No.4 was allowed. This had the consequence of removal of the petitioner from the position of Sarpanch.
(4) Aggrieved by the same, the petitioner filed appeal under Section 16(2) of the said Act before the respondent No.1 Divisional Commissioner. By
order dated 22/04/2019, the respondent No.1 dismissed the appeal and confirmed the order passed by the respondent No.2 Collector. As noted above,
this Court issued notice in the present writ petition and granted ad-interim relief in favour of the petitioner.
(5) Mr. S. D. Chopde learned counsel appearing for the petitioner submitted that the question raised by the petitioner in the present case was covered
in her favour as per judgment of this Court in the case of Shantaram Narayan Raut vs. Additional Collector (supra). It was submitted that in similar
set of circumstances, this Court had held that the elected person could not be held to be disqualified under Section 14(1)(j-3) of the said Act. It was
further submitted that documents were placed before the respondent No.2 Collector, copies of which were also placed before this Court by way of
pursis, which indicated that the land in question was handed over to the aforesaid society upon payment of requisite amount and that the possession
receipt on record indicated that the Society had indeed taken possession of the land in question from the Talathi of Gawandgaon. It was claimed that
the record of the Gram Panchayat also indicated that the piece of land on which the house was constructed by the petitioner and her husband, was
recorded in their names.
(6) It was further submitted that the Collector erred in holding against the petitioner on the basis that the land in question could not be said to be
completely private land. It was further submitted that when drastic consequence of removal of an elected representative followed exercise of power
under section 14(1)(j-3) of the said Act, the said provision ought to have been interpreted strictly by the respondent No.2 Collector, as well as the
respondent No.1 Divisional Commissioner, while considering the application filed by the respondent No.4. It was submitted that the writ petition
deserved to be allowed and the impugned orders were required to be set aside.
(7) Mr. N. B. Rathod learned counsel appearing for respondent No.4 submitted that the respondent Nos.1 and 2 had correctly interpreted the
documents on record to come to a conclusion that the petitioner was indeed liable to be disqualified under Section 14(1)(j-3) of the said Act, because
she and her husband had admittedly encroached upon open land in the layout of the Society, wherein the Society was occupying the land, but
ownership of the same continued with the Government. The learned counsel for respondent No.4 emphasized upon the record of rights (7/12 extract)
which specifically stated that the ownership was that of the Government, while it was in occupation of the aforesaid Society. The judgment in the case
of Shantaram Narayan Raut vs. Additional Collector (supra) was sought to be distinguished by the learned counsel for respondent No.4 by stating that
the said judgment considered a fact situation wherein the land in question was admittedly a private property. It was also submitted that the documents
pertaining to allotment and handing over the land to the said Society merely indicated that the Society was in occupation of the same. Attention of this
Court was also invited to various provisions of the Maharashtra Land Revenue Code, 1966 including Formâ€"XVIII under the Maharashtra Land
Revenue (Disposal of the Government Land) Rules, 1971, as also Government Resolution dated 15/07/1978 pertaining to grants of lands to Co-
operative Societies, to contend that the land in question continued to be Government land thereby showing that the impugned orders did not deserve
any interference.
(8) The learned AGP Shri. Nikhil Joshi, appeared on behalf of respondent Nos.1 & 2 and supported the impugned orders passed by the said
respondents.
(9) Heard learned counsel for the rival parties and perused the material on record. The impugned orders have concurrently held that the petitioner
stood disqualified as Sarpanch of Gram Panchayat, Gawandgaon under Section 14(1) (j-3) of the aforesaid Act, which stipulates that no person shall
continue as Member of a Panchayat who has encroached upon Government land or public property. According to the learned counsel appearing for
the petitioner, the concurrent orders passed by respondent Nos.1 and 2 are in the teeth of the position of law laid down by this Court in the case of
Shantaram Narayan Raut vs. Additional Collector (supra). Therefore, it would be appropriate that the said judgment of this Court is referred to and
analyzed before the said contention raised on behalf of the petitioner is dealt with. In the said judgment, this Court found that the petitioner therein
could not be said to be disqualified under Section 14(1)(j-3) of the said Act for having constructed tin sheds in open space in a private layout. This
Court considered the definition of “public property†as given in the Prevention of Damage to Public Property Act, 1984, to consider in the facts
and circumstances of that case, as to whether disqualification was attracted. In the said judgment, this Court referred to the facts therein and gave
findings in favour of the petitioner in the following manner.
“24. In the instant case, what one finds is that the allegation is that Survey No.626 is a private land. That certain portion therein has been
earmarked as open space. Pertinently such earmarking is in a layout which is stated to be either prepared or submitted for sanction or approval or
approved or sanctioned. Nonetheless it relates to a private property. It is equally true that the planning laws relied upon in this case or otherwise,
mandate the keeping of certain spaces as open and unbuilt so as to ensure free and smooth flow of air and ventilation. That by itself does not mean
that such spaces, which may be also utilized for recreation purposes, can be termed as belonging to the Government or local authority or are public
properties straightway.
25. The public property is one to which the members of public have free and unrestricted access. That place or land or property may not be owned by
the Government or local authority, but if it belongs to or is donated or granted or allotted for use of the members of public, then, it is broadly
understood as public property. 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. It is a public property and can be termed as such without any acquisition by the Government or the local
authority. That would mean that by mere earmarking or designation such properties vest straightway in the State.
26. xxxxx
27. If the concept is understood thus, it would become at once clear that any open spaces, being carved out in a private layout, are meant to be kept
open by the owners and that cannot be built upon. It has to be kept open and may be utilised for recreational or such other activities. For such spaces
to be termed as public properties, something more needs to be done in law so as to vest them in State for the use and benefit of public. That requires a
sanction in law. If one were to straightway assume based on the contents of the report of the Circle Officer or the Town Planner that even such
spaces in a private layout are not meant to be utilized by the private owners and therefore, are capable of being taken over by the local authority or
local body, then, that would introduce an element of uncertainty and in a given case, disqualify persons who are duly elected members not for any
unlawful act on their part. In these circumstances to hold on the basis of the reports submitted by the officers in this case that there is encroachment
on the Government land or public property, would be extremely risky and hazardous. That is certainly not the intention of the Legislature in providing
for disqualification of persons for being elected as members of the Village Panchayat or to continue as members upon election. If that had been the
intent, that would have been specified clearly and unequivocally. If the term Government land or public property is understood in common parlance
and in the context referred to above, then, it is clear that the Petitioner who is allegedly guilty of having encroached on open space in a private layout
by permitting construction of tin sheds thereon, cannot be disqualified for having encroached on a Government land or public property. The wrongful
acts committed by the Petitioner on his private land and property can be dealt with under other laws. The wrongful acts, if any, committed can be
sternly and strictly dealt with in accordance with law. All that is meant is that even an elected member is answerable to law and if he has committed
any unauthorized or illegal act even in a private property, he can be either prosecuted or penalised.â€
(10) It has to be kept in mind that in the aforesaid case of Shantaram Narayan Raut vs. Additional Collector (supra), this Court was admittedly
concerned with a private land which had been converted into a layout of plots and the petitioner therein was alleged to have encroached upon open
spaces in the layout by constructing tin sheds. In the present case, everything would turn on the facts as can be deduced from the material on record.
It is the case of the petitioner that since the construction undertaken by her and her husband was in open space of land granted to the Pandit Nehru
Magasvargiya Co-operative Housing Society, it could not be said to be an encroachment on either Government land or any public property. It was
submitted that the position of law laid down in the aforesaid case of Shantaram Narayan Raut vs. Additional Collector (supra) applied even to the
facts of the present case.
(11) A perusal of the material on record shows that the record of rights (7/12 extract) maintained under the relevant Rules i.e. Maharashtra Land
Revenue Records of Rights and Registers (Preparation and Maintenance) Rules, 1971, shows that the layout of the said society is on part of a piece
of land of which the owner is shown to be the Government with the words “F-Class†recorded in the column of the owner. In the column
pertaining to occupiers, the said Society is shown as occupant in part of the land and in the remaining part of the land there is a site for burial and other
such usage. It is crucial that the said Society is shown as an occupier of part of the land. In this context report of the Talathi dated 02/02/2018 is also
significant, because it clearly states that the layout of the Society is located in F-Class land and that the construction undertaken by the petitioner and
her husband is on an open space in the layout of the said Society. It is significant that the words “F-Class land†do not find mention in the
Maharashtra Land Revenue Code, 1966, but it was found in Rules regarding classification of land under the Berar Land Revenue Code, wherein
notification was issued stating that F-Class land included survey numbers assigned for village purposes other than free grazing such as gaothan
khalwadi, burial ground, playing fields, assessed grazing fields, land set apart for purposes of nature etc. The Berar Land Revenue Code was repealed
by the Madhya Pradesh Land Revenue code, 1954, which in turn was repealed by the aforesaid Maharashtra Land Revenue Code, 1966.
It appears that the said expression “F-Class†has continued in the records and the office of the record of rights in the context of its connotation
under the Berar Land Revenue Code. Be that as it may, the record of rights placed on record under the aforesaid Rules of 1971 pertaining to
preparation and maintenance of record of rights and registers, specifically records in the present case that the aforesaid Society is an occupier of the
land upon payment of premium and that the land is owned by the Government. Thus, the material on record indicates that the land is still owned by the
Government and it was granted for occupation to the Society for construction of houses of its members belonging to backward classes.
(12) The documents placed on record filed along with the pursis by the petitioner regarding exchange of communications and other documents
pertaining to grant of land to the said Society, unequivocally show that Society was granted occupancy rights on payment of premium. In this context
Rule 49 of the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971, shows that where any land is granted either in occupancy
rights or lease hold rights under the provisions of the said Rules, the Tahasildar shall issue a certificate in Form-XVIII appended to the said Rules. The
certificate in Formâ€"XVIII specifically certifies that the “Occupancy Rights†in the land described in the Schedule are granted on payment of
occupancy price/premium, further stating that such grant is subject to the provisions of the Maharashtra Land Revenue Code, 1966 and the Rules
made thereunder and to the conditions agreed to by the occupant. Attention of this Court was also invited to Government Resolution dated 15/07/1978
issued by the Government of Maharashtra concerning grant of land to Co-operative Societies. It is an admitted position that when the aforesaid
Society in the present case was granted land for occupancy and carving out layout, the said Government Resolution was applicable.
(13) A perusal of the terms and conditions of grant of Government lands to Co-operative Societies under the said Government Resolution dated
15/07/1978, demonstrates that it interalia provides that the Society would be liable to be evicted and the land and building resumed to Government
without payment of any compensation, in case there was a breach of any of the conditions of grant. Thus, the material on record clearly indicates that
even if a layout had been carved by the aforesaid Society, the Government continued to be the owner of the land, with only occupancy rights with the
said Society, subject to the terms and conditions of such grant. Such a land could certainly not be termed as private land and this aspect clearly
distinguishes the facts of the present case from the facts in the case of Shantaram Narayan Raut vs. Additional Collector (supra).
(14) In this context, the discussion in the said judgment regarding “public property†with reference to the definition in the Prevention of Damage to
Public Property Act, 1984, assumes significance. In the said definition it is clearly stated that “Public Property†means any property whether
immovable or movable, which is owned by or in possession of or under control of, interalia, any State Government or local Authority. In the present
case, as noted above the owner of the land in question is clearly State Government and the aforesaid Society is merely an occupant, subject to the
terms and conditions of the grant under the Maharashtra Land Revenue Code, 1966 read with the Maharashtra Land Revenue (Disposal of
Government Lands) Rules, 1971. Thus, the facts of the present case are clearly distinguishable from that of the case of Shantaram Narayan Raut vs.
Additional Collector (supra) and reliance on the said judgment on the part of the petitioner is misplaced.
(15) Once this Court comes to the conclusion that the land in question is Government land, the approach adopted by the respondent Nos.1 and 2 in
holding against the petitioner, appears to be fully justified. It was found by the said respondents that the Talathi had submitted in his report dated
02/02/2018 that the construction in question was admittedly undertaken by the petitioner and her husband in open space within the land occupied by
the aforesaid Society. It was found that the record of rights (7/12 extract) recorded the Government as owner of the said land and therefore, it cannot
be said that any error was committed by the respondent Nos.1 and 2 in holding against the petitioner.
(16) The petitioner at one place claimed that she was allotted the land by the Society, but not an iota of material was placed on record in support of
such an assertion. There is nothing on record to show that either the petitioner or her husband are members of the said Society. As regards the entry
allegedly made in the record of the Gram Panchayat to the effect that the petitioner and her husband are owners of the land in question, suffice it to
say that such entry in the record of the Gram Panchayat was of no consequence in the face of material on record in the form of record of rights and
the report of the Talathi of the Village showing that the construction in question was on open land belonging to the said Society. In any case, the entry
in the Gram Panchayat record is dated 08/03/2018, which is after the respondent No.4 had submitted complaint/application dated 07/12/2017 before
the respondent No.2 for disqualifying the petitioner. During this period, the petitioner was already Sarpanch of the Gram Panchayat and there was no
basis shown as to how such an entry was made in the record of the Gram Panchayat. In any case, apart from the said entry in the record of the Gram
Panchayat, the petitioner failed to produce any supportive material for such an entry, much less any document or material to show that either she or
her husband were members of the said society wherein they were allotted a plot on which they had made construction. The report of the Talathi dated
02/02/2018, demonstrates that the construction in question was on an open land in the layout of the said Society. Such material clearly demonstrates
that the petitioner indeed invited disqualification under Section 14(1)(j-3) of the aforesaid Act.
(17) Although it was never argued before this Court, but a ground was taken in the writ petition that since the petitioner was a Sarpanch directly
elected after the amendment of the Maharashtra Village Panchayats Act, 1959, she could not be equated to be a member of the Gram Panchayat and
therefore, Section 14(1)(j-3) of the said Act would not apply. The said ground raised in this writ petition is also of no consequence, because this Court
in the case of Datta Ganpat Kamble vs. State of Maharashtra 2019 (5) Mh.L.J. 64,1 by relying upon Division Bench judgment of this Court in the
case of Anuja Kalyan Gore vs. State of Maharashtra, 2018 Mh.L.J. online 28 has held that consequential amendments made in various provisions of
the said Act and the Rules thereunder, demonstrated that even though the Sarpanch was directly elected, he/she also had the status of member of
Gram Panchayat. Thus, there is no ground made out by the petitioner for challenging the concurrent orders passed by the respondent Nos.1 and 2.
(18) Consequently, this Court finds that there is no merit in the present writ petition and it is dismissed. No order as to costs. Needless to say, the
interim order granted by this Court stands vacated.
