Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2521 OF 2023
Shri. Dattatraya Krishnat Patil & Anr. …Petitioners
Pune Division, Pune & Ors.
IN
WRIT PETITION NO.2521 OF 2023
Shri. Dattatraya Krishnat Patil & Anr. …Applicants
Pune Division, Pune & Ors.
Mr. Ajay B. Chate, Addl. GP a/w Mr. P. P. Pujari, AGP, for the
Respondent Nos.1, 2 & 5-State.
Mr. Yuvraj Narvankar, for Respondent No.3.
JUDGMENT
1. Heard Mr. Rakesh Patil, learned Counsel appearing for the Petitioners, Mr. Chate, learned Additional GP along with Mr. Pujari, learned AGP, for the Respondent Nos.1, 2 and 5-State and Mr. Yuvraj Narvankar, learned Counsel appearing for the
2. By way of this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the Petitioners who are the residents of village Haldi, Taluka-Karveer, District-Kolhapur and therefore, voters in the election of Respondent No.4-Gram Panchayat Haldi, are challenging the Order dated 9th February 2023, passed by the Respondent No.1-Additional Divisional Commissioner, Pune Division, Pune in Appeal No.14 of 2022 (“impugned Order”). By the said impugned order, the Appeal filed by the Respondent No.3 has been partly allowed by setting aside the Order dated 24th June 2022 passed by the Collector, Kolhapur in Dispute Application No.16 of 2021 and the matter has been remanded back. The operative part of the said impugned order dated 9th February 2023 passed by the Additional Divisional Commissioner, Pune Division, Pune, is set out herein below: ßvkns’k 1½ vfiykFkhZ;kaps vfiy va’kr% ekU; dj.;kr;sr vkgs- 2½ ftYgkf/kdkjh] dksYgkiqj;kauh fookn vtZ dz-16@2021- e/;s fn- 24@06@2022 jksth fnysyk vkns’k jí dj.ksr;sr vkgs- izdj.kh fudkyi=kr ueqn dsysuqlkj lkoZtfud jLrk o okn feGdr;kckcr laca/khr;a=.kk@foHkkxkus ekst.khph dk;Zokgh pkj vkBoMîkkr iq.kZ djkohekst.khiqohZ izdj.kkrhy loZ fgrlaca/khrkauk vkxkowph ys[kh lqpuk ns.ksr;kohekst.khph dk;Zokgh loZ fgrlaca/khr o xzkeLFk;kaps mifLFkrhr iq.kZ djkohrnuarj izkIr vgokykps vuq"kaxkus loZ fgrlaca/khrkauk cktq ekaM.;klkBh iqjs'kh@oktoh la/kh nsowu ftYgkf/kdkjh] dksYgkiwj;kauh QsjpkSd'kh d:u;Fkk;ksX; vkns'k ikfjr djkosr- 3½ lnjpk fu.kZ; brj izdj.kh iqoksZnkgj.k let.ksl ik= Bj.kkj ukgh- 4½ [kpkZckcr vkns'k ukghr- 5½ fudkykph let lacaf/krkauk ns.;kr;koh-Þ (Emphasis added) English translation of the above, is as follows: “Order
1) Appeal preferred by the Appellant is partly allowed.
2) Order passed by the Collector, Kolhapur in Dispute-Application No.16/2021 on the date 24.06.2022 is set aside. As mentioned in the Judgement in this matter, the Machinery/Department concerned shall complete the process of carrying out survey in respect of the Public road and the property in dispute, within four weeks and prior to carrying out the survey, shall give the intimation in writing in respect thereof in advance to all the interested parties in the matter. The process of survey shall be completed in the presence of all the interested parties and the villagers and thereafter, the Collector, Kolhapur shall carry out re-enquiry by giving sufficient/reasonable opportunity to all the interested parties to put forth their say in view of the report received and shall pass appropriate order accordingly.
3) The said decision shall not be eligible to be treated as a precedent in other matters.
4) No orders as to costs.
5) Intimation of this decision shall be given to the parties concerned.”
3. The Collector, Kolhapur by the order dated 24th June 2022 passed in the said Dispute Application No.16 of 2021, allowed the said Dispute Application filed under Section 16(2) read with Section 14(1)(j-3) of the Maharashtra Village Panchayats Act (Act No.III of 1959) (“said Act”) and the Respondent No.3 has been disqualified to be a member of the Gram Panchayat. The said disqualification is on the ground that the Respondent No.3 has encroached upon the Government land. As set out herein above, by the impugned order of the Additional Divisional Commissioner, order of the Collector is set aside and the matter has been remanded back to the Collector.
4. It is the contention of Mr. Patil, learned counsel appearing for the Petitioners that Respondent No.3 along with her husband and other members of her family, have encroached upon Government land, i.e., State Highway No.189. Therefore, the Petitioners filed Dispute Application No.16 of 2021 seeking disqualification of the Respondent No.3. In the Dispute Application No.16 of 2021, the Collector, Kolhapur by order dated 15th November 2023 directed the Survey Officer to measure the concerned property, i.e., Survey No.311 and, accordingly, after following the procedure in accordance with law, the Deputy Superintendent of Land Records, Kolhapur measured the concerned property on 8th December 2021 and prepared the Survey Map. The said map clearly shows that the Respondent No.3 and her family members have encroached upon the Government land, i.e., State Highway No.189.
5. It is his further submission that Respondent No.3 admitted before the Collector, Kolhapur, that she would remove the encroachment within a period of one week, which implied that she has accepted that she has encroached upon Government land. He, therefore, submitted that the Additional Divisional Commissioner, Pune Division, Pune has committed grave illegality and irregularity in setting aside the order dated 24th June 2022 passed by the Collector, Kolhapur.
6. Mr. Patil, learned counsel submitted that it is the claim of the Respondent No.3 that said Survey No.311 is the joint family property of the Respondent No.3 and has an area of about 856 sq. ft.. In said Survey No.311, there are 4 houses belonging to the family of the Respondent No.3 and as per the 4 separate assessment extracts, the aggregate area of said Survey No.311 comes to about 2227.46 sq. ft. instead of 856 sq. ft.. He, therefore, submitted that family members of Respondent No.3 have encroached upon an aggregate area of 1370.96 sq. ft..
7. Mr. Patil, learned counsel relied on the affidavit-in-reply filed by Respondent Nos.[1] and 2 and, particularly on paragraphs 8 and 9 of the same.
8. On the other hand, Mr. Narvankar, learned counsel appearing for Respondent No.3 submitted that principles of natural justice have been violated, as the notice of encroachment is silent on the nature of the encroachment and it also does not mention particulars of the property. It is his submission that, in fact, the Collector, Kolhapur while passing the order dated 24th June 2022 has not verified the encroachment. It is his further submission that the alleged encroachment is on Survey No.311 and the same is the ancestral property of Respondent No.3. He submitted that therefore, the provisions of Section 14(1)(j-3) of the said Act will not apply to the said alleged encroachment, assuming the same to be the encroachment. He submitted that there are separate maps of the roads maintained by the Public Works Department (“PWD”), and the markings on such maps show the encroachment, but no such map is produced. He submitted that the Respondent No.3 has legally constructed on the land belonging to them and is even paying the taxes/charges to the local authority.
9. It is his further submission that the record of the case does not show existence of an encroachment. He submitted that the affidavit filed by the Government is to be completely discarded as, the impugned orders are passed after holding an inquiry and, therefore, the reasons cannot be supplied by way of the affidavit. He relied on certain decisions of the Supreme Court to substantiate the said contention, reference to which will be made as and when necessary.
10. Mr. Narvankar, learned counsel submitted that the assurance given by the Advocate of the Respondent No.3 cannot be held against the Respondent No.3 and the said assurance was only with respect to the Pansa, i.e., weather shed. He submitted that statement of Advocate of Respondent No.3 cannot be treated as admission on her part of the alleged encroachment. He further submitted that the said weather shed has been removed. He relied on the decision of the Supreme Court in the case of Himalayan Coop. Group Housing Society V. Balwan Singh & Ors.[1] to contend that if any doubt exists as to the purported admission, the Court should be wary to accept such admissions until and unless the counsel or the Advocate is authorised by his principal to make such admissions. He further submitted that filing of Application seeking disqualification of the Respondent No.3 is politically motivated.
11. He submitted that, in any case, by the impugned order, the Dispute Application is not dismissed and the same has only been remanded by directing that the fresh plans be drawn. He, therefore, submitted that no interference under Articles 226 and 227 of the Constitution of India is warranted.
12. Before considering the rival submissions, it is necessary to set out certain factual aspects:-
(i) The Respondent No.3 got elected as a member of the Gram
Panchayat Haldi on 18th January 2021. Subsequently, the Respondent No.3 has been elected as Sarpanch of Gram Panchayat-Haldi.
(ii) The Petitioners are the residents of Village Haldi and, therefore, are the voters in the election of said Gram Panchayat. By filing the Dispute Application No.16 of 2021 dated 26th February 2021 under Sections 16(2) read with Section 14(1)(j-3) of the said Act before the Collector, Kolhapur, the Petitioners prayed for the disqualification of the Respondent No.3 as a member of the said Panchayat on the ground available under Section 14(1)(j-3) and Section 16 of the said Act. The Section 14(1)(j-3) of the said Act provides that no person shall be a member of Panchayat or continue as such, who has encroached upon Government land or public property. In the said Dispute Application it was the contention of the Petitioners that on 10th February 2021, the Deputy Engineer, Public Works Department, Sub-Division has issued notice for the removal of the said unauthorised and illegal construction. In the affidavit filed at the time of submitting the Application for candidature as a member of the said Gram Panchayat, it is specifically stated by the Respondent No.3 that the Respondent No.3 or any of her family members have not encroached upon Government land. The husband of the Respondent No.3, i.e., Balasaheb Shripati Sutar is conducting business of carpentry and iron works, and the said premises adjoins the road and is on the portion which is part of the road. It is contended that the same is Government land and Respondent No.3’s husband has encroached upon it. Therefore, Respondent No.3 cannot continue as a member of the said Gram Panchayat.
(iii) The Respondent No.3 filed reply dated 11th October 2021 in said Dispute Application, inter alia, stating that family of the Respondent No.3 is having houses on the said property for the past 70 to 80 years. The said property is numbered as City Survey No.311 and the same is ancestral property. In the year 1983-1984, the City Survey was conducted, and at that time, a Survey Officer prepared a map and numbered the said properties as City Survey No.311. As far as the contention regarding the said notice dated 10th February 2021 is concerned, Respondent No.3 has stated that the said notice is totally incorrect. It is mentioned that the provisions of the Prevention of Ribbon Development Act, 2007 are not violated, as measurement as contemplated under the same have not been carried out and the boundaries are not fixed. iv) The Gram Sevak of Respondent No.4-Gram Panchayat, Haldi, Taluka-Karveer, District-Kolhapur, filed a reply dated 8th November 2021, inter alia, contending that there is no encroachment as alleged by the Petitioners.
(v) The Respondent No.5, i.e., the Deputy Engineer, Public
Works Department, Sub-Division, Bhudargad filed detailed reply placing on record the encroachment by the Respondent No.3 and her family members.
(vi) The said Dispute Application No.16 of 2021 was heard by the Collector, Kolhapur from time to time, and on 15th November 2021 the Collector, Kolhapur passed the following order: ßlquko.kh >kyh- nksUgh cktqauh vkiys rksaMh;qDrhokn dsys vkf.k dkxni=s o ys[kh Eg.k.ks lnj dsys- [kkyhy funsZ'k ns.;kr;sr vkgsr- 1½ vtZnkj;kauh CTS No.311 ph ekst.kh Qh Hkjkoh vkf.k CTSO;kauh;k U;k;ky;kP;k funsZ'k letqu lnjhy ekst.kh Rojhr d:u nîkkoh- rlsp R;kr jLR;kph laiw.kZ:anh vkf.k Ribbon Development o brj loZ T P fu;ekaizek.ks varjs n'kZfo.;klkBh vko';d yxrP;k CTS No ps o tehuhps gíh o dz- n'kZokosr- 2½ PWD us;kfo"k;h Li"Vrk nîkkoh dh] laiknhr u dsysY;k tehuhojhy jLrk vfLrRokr;s.;k vk/khps cka/kdke vfrdze.k fdaok vuf/kd`r dls letrk;sbZy] rs gh dks.krsgh compensation u nsrk\ 3½ ADTP;kauh ojhy ekst.kh udk’kkoj loZ Control Lines vk[kwu nîkkO;kr vkf.k vfrdze.k @ vuf/kd`r cka/kdke;kfo”k;hps vkiys Lo;aLi”V vfHkizk; nîkkosr- 4½ rgflynkj] djohj;kauh CTS No.311 o R;kP;k yxrP;k loZ tehuh T;ke/;s ekyeRrk dz- 293@1] 293@2] 293@3] 293@4 vkgsr- R;k tehuhps 7@12 izekf.kr d:u lknj djkosr- 5½ vtZnkj;kauh Eg.k.ks lknj dsys dh] lnjhy tehu ¼CTS No.311 lg½ gh] rqdkbZ nsoh O;oLFkkid ljdkj;kaP;k ekydhP;k vkgsrlcc lnjhy HkksxoVnkj;kauk uksVhl dk<wu;k tehuh R;kauh l| ifjfLFkrhr dks.kkyk] dks.kR;k iz;kstuklkBh fnysY;k vkgsr vkf.k lnjhy rkcs/kkjd;kauh;koj dks.kR;k ijokuX;k vkti;Zar fnY;k vkgsr;kaph ekfgrh ?;koh- 6½ CTSO;kauh CTS No.311 vfLrRokr;s.;kvk/kh dks.kR;k xV ua- @losZ ua- pk Hkkx gksrk;kpk lfoLrj ys[kh tckc Lo;aLi”V udk’kkP;k mrkÚ;klg ?ksÅu;kokojhy loZ vuqikyuklkBh iq<hy eqnr 20@12@21 10% 30 a.m.Þ The English translation of the same reads as follows: "Hearing has been held. Both the parties put forth arguments orally and submitted their say in writing and also the documents. Below mentioned directions are given.
1. The applicants shall pay the survey fee for survey of the land bearing C.T.S. No.311 and the C.T.S.O. shall carry out the said survey by treating this order as the direction of the Hon’ble Court. Moreover, in order to show the entire width of the road and to show distances as per Ribbon Development and all other T. P. Rules, the necessary adjacent C.T.S. Numbers, boundaries of the land and numbers shall be shown therein.
2. The P.W.D. shall clarify in this regard as to how the structure standing on the non-acquired land before the road coming into existence, can be considered as encroachment or unauthorised and that too without giving any compensation.
3. The ADTP shall mark all control lines on the aforesaid Survey map and shall mention his selfexplanatory opinion about the said encroachment/unauthorised structures.
4. The Tahasildar, Karveer, shall certify and produce 7/12 extracts in respect of the lands bearing C.T.S. No.311 and of all the lands adjacent thereto in which the Properties bearing Nos.293/1, 293/2, 293/3 and 293/4 are situated.
5. The applicant submitted say that the said lands (Together with the land bearing C.T.S. No.311) are of the ownership of Management of Shree Tukai Devi, Government. Therefore, notice shall be issued to the said Occupants and information shall be obtained as to whom and for what purpose, they have handed over the said lands at present and as to which permissions the said Possessor has given in respect thereof till today.
6. The C.T.S.O shall submit detailed say in writing as to of which Gat No./Survey No., the land bearing CTS No.311 was part before its coming into existence, together with self explanatory extract (copy) of the map in respect thereof. Next date of Hearing for the compliance of the aforesaid points is 20/12/21 at 10.30 a.m."
(vii) Pursuant to the said order dated 15th November 2021, the
Deputy Superintendent of Land Records carried out the measurement and prepared the map. The report of the Deputy Superintendent of Land Records was produced before the Collector on 20th December 2021.
(viii) Before 14th February 2022, all the parties except the
Gram Sevak of the Gram Panchayat, Haldi, filed their written submissions. On 15th February 2022, in the roznama, the following order is passed: ßlquko.kh >kyh- loZ gtj- fo- i- 1;kauh ys[kh o rksaMh;qDrhokn dsykfo- i- 1;kauh vfrdze.k,dk vkBoMÓkkr dk<.;kps dcqy dsys vkgs-;k O;frfjDr dkgh ys[kh rksaMh Eg.k.ks ukgh gs lokZauh ekU; dsys- lcc izdj.k fu.kZ;klkBh can dj.;kr;srs- fu.kZ; lokZauk dGfo.;kr;sbZy-Þ The English translation of the above, is as under:- "Hearing has been held. All parties are present. Opposite Party No.1 put forth arguments orally and also in writing. Opposite Party NO.1 has agreed to remove the encroachment within one week. Besides this no one has any say orally / in writing and all the parties agreed to the same. Hence, the matter is closed for judgment. The judgment shall be informed to all the parties."
(ix) On 25th February 2022, the Petitioners filed an additional say in the said Dispute stating that although the statement was made that the said encroachment would be removed within seven days, the same has not been removed.
(x) The Collector, Kolhapur by the order dated 24th June
2022 passed in the said Dispute Application has found that the husband of Respondent No.3 has encroached upon Government land, and, accordingly, passed the order by exercising power under Section 14(1)(j-3) and Section 16 of the said Act, disqualifying the Petitioner as a member of the Gram Panchayat, Haldi.
(xi) The said order has been challenged by Respondent No.3
2022.
(xii) By the impugned order dated 9th February 2023 in Appeal
No.14 of 2022, the Additional Divisional Commissioner, Pune Division, Pune set aside order dated 24th June 2022 passed by the Collector, Kolhapur and the matter was remanded back by directing that the authorities should measure the land after giving notice and the said measurement be carried out inter alia in the presence of villagers of the said village.
13. In view of the above factual position, it is necessary to consider important issue involved in the matter about the encroachment, if any carried out by the Respondent No.3 or her family members.
14. The admitted factual position on record shows that by the order dated 15th November 2023, the Collector directed the Deputy Superintendent of Land records, Karveer to carry out the survey. Accordingly, notice was given by the Deputy Superintendent of Land Records dated 25th November 2021, that the measurement would be carried out on 8th December 2021. The said notice has been received on behalf of the husband of Respondent No.3, by son of Respondent No.3. The allegation is against the husband of Respondent No.3 that he has constructed unauthorised structures on the road. Accordingly, the said measurement was carried out on 8th December 2021. The measurement map which has been prepared on the basis of measurement that was carried out on 8th December 2021 shows that there is an encroachment upon the State Highway No.189 and the same is by the husband of Respondent No.3, who is conducting the business from the said structure.
15. In this regard, it is significant to note the contentions raised in say filed by Respondent No.5, i.e., the Deputy Engineer, Public Works Department, Sub-Division, Bhudargad to the said Dispute Application and more particularly in paragraph Nos.4(A) and 4(D) which are reproduced herein below for ready reference: ßv½ lnj nkok vtkZrhy nkok fo"k; vlysys vfrdze.k gs fo- i- ua- 3;kaps v[kR;kjhr vlysY;k dksYgkiwj & xkjxksVh] xMfgaXyt] ukxuokMh jLrk jkT;ekxZ dz- 189;k jLR;koj gGnh xkoP;k xkoBk.k gíhr 'kkldh; jLR;koj fo- i- ua- 1;kaps irh ckGklkgsc Jhirh lqrkj o brj vusd yksdkauh O;olk; dj.kslkBh o brj dkj.kkauh vusd o"kkZiklwu vfrdze.k dsysys gksrs o vkgs o lnj jLR;kph lq/kkj.kk dj.ksps dke egkjk"Vª 'kklukrQsZ lq: dj.ksr vkY;kus o lnj jLrk lq/kkj.kk dkeke/;s lnj yksdkaph vfrdze.ks vMFkGk Bjr vlY;kus o rh dk<.ks vko';d vlY;kus lnj gGnh xkokrhy loZ vfrdze.k /kkjdkauk vfrdze.k dk<wu ? ks.ksckcr fnukad 10@02@2021 rs 17@02@2021 ps njE;ku fnysY;k uksVhlk o fo- i- ua- 1;kaps ifrl fn- 10@02@2021 jksth fnysyh uksVhl gs lnj nkok vtkZps dkj.k o fo"k; vkgsc½ fo- i- ua-;kaps irh ckGklkgsc Jhirh lqrkj;kauh lnj jLR;kps fd-eh- 14@900 rs 15@500 e/;s lk/kkj.ki.ks 11@2 feVj Eg.ktsp 5 QwV:anhps jLR;kps gíhe/;s vfrdze.k dsysys vkgs gs lnj jLR;kph izR;{k tkxsoj ekstekis ?ksrY;kuarj fo- i- ua- 3;kaps /;kukr vkysuarj lnjph uksVhl ns.;kr vkysyh vkgs- lnj dkeh jLR;kph vfLrRokrhy:anh lnj fBdk.kh 16 feVj Hkj.ks vko';d vkgs Eg.ktsp e/;kekiklwu nksUgh cktwl 8 feVj brdh Hkj.ks vko';d vkgs- ijarw fo- i- ua- 1;kaps irhps ?kjkleksj e/;kiklwu jLrk ekstyk vlrk lnj ?kj jLR;kps e/;kiklwu 6-5 feVj brD;k varjkoj vkgs- Eg.ktsp 1-5 feVj vfrdze.k vkgs gs fnlwu;srs o jLrk lq/kkj.kkdkeh o jLR;kph:anh e/;kiklwu 8 feVj vko';d vlY;kus o vfLrRokrhy jLR;koj 1-5 feVj vfrdze.k dsysys vlY;kus lnjph uksVhl ns.;kr vkyh vkgs- lnjph uksVhl gh;ksX; o dk;ns'khj vkgs- foi- ua- 1;kaps irh;kaps cjkscj brj vfrdze.k /kkjdkauk lq/nk uksVhlk ykxw dsY;k vkgsr- lcc] fo- i- ua- 1;kauh R;kaps ys[kh Eg.k.;kr fo- i- ua- 3;kapsoj jktdh; nckokiksVh uksVhlk fnY;k oxSjs Eg.k.ks xSjykxw vkgs- fo- iua- 3;kapk;k ckch'kh dkghgh laca/k ukghd½ fo- i- ua- 3;kauh lnj dkeh Hkwfe vfHkys[k djohj;kapsdMhy fo"k;kadhr gGnh xkokpk udk'kk fn- 23@03@2021 uqlkj ?ksryk vlwu R;ke/;s lnj vtkZpk fo"k; vlysY;k feGdrhleksj vfLrRokrhy jLR;kph:anh gh 16 feVj is{kk FkksMh tkLrp fnlwu;srs o lnj jLR;kph e/;kiklwu 8 feVjps vkr fo- i- ua- 1;kaps irhus vfrdze.k dsysys fnlwu;srs- M½ lnj jLR;kps vfLrRokr vlYksY;k:anhe/;s fo- i- ua- 3;kaps ekQZr lq/kkj.kk dj.ksps dke lq: vkgs- o R;ke/;s;s.kkÚ;k vfrdze.k /kkjdkauh Lor%gwu vfrdze.k dk<wu ?ksrys ikfgts rlsp R;kauk uqdlku HkjikbZ ns.;kpk fdaok R;kaph tkxk Hkwlaikn dj.ksph dks.krhgh vko';drk lnj dkeh ukgh dkj.k 'kklukps vfLrRokrhy gíhrp lnj dke lq: vkgs-Þ The English translation of the same is as follows: A) The encroachment which is the subject matter of the Suit-Application was and has been made since past several years by Balasaheb Shripati Sutar, husband of the Defendant No.1 and various other persons, on the Government Road i.e. State Highway No. 189 - Kolhapur – Gargoti – Gadhinglaj - Naganwadi Road falling within the jurisdiction of the Defendant No.1 and within the boundary of Gaothan place of Village – Haladi for carrying out their business and for other purposes. As the Government of Maharashtra has commenced the work of improvement of the said road, the encroachments that have been made by the said persons are becoming obstacles in carrying out the said work of improvement of the said road and as it is necessary to remove the same, the Notices for removing the encroachments that have been issued to all the encroachers from the said Village – Haladi during the period from the date 10.02.2021 up to the date 17.02.2021 and the Notice dated 10.02.2021 issued to the husband of Defendant No.1 are the cause and subject of the present suit. (B) Balasaheb Shripati Sutar, husband of Defendant No.1, has made an encroachment of about 1 meters i.e. ½ meters i.e. about 5 ft. in width in the road between the kilometer stone 14/900 to 15/500 and when this fact came to the notice of Defendant No.3 on taking measurements of the actual site on the said road, the said Notice had been issued to him. For the purpose of carrying out the said work, it is necessary that the existing width of the road at the said place should be 16 meters i.e. 8 meters each on both the sides from the centre point of the road. However, when the measurement of the said road is taken from its centre point in front of the house of Defendant No. 1’s husband, the said road is found to be located at a distance of 6.[5] meters from the centre point of the road. That means, it is seen that there is an encroachment of 1.[5] meters. As the width of the road for improvement of the road needs to be 08 meters from its centre point, and as encroachment of 1.[5] meters has been made on the existing road, this Notice has been issued. This Notice is proper and lawful. Besides the husband of Defendant No.1, notices have also been served to other encroachers. Hence, the contention of Defendant No.1 that the notices have been issued due to political pressure on Defendant No.3 is irrelevant. Defendant No.3 has nothing to do with this matter. C) In this matter, the Defendant No.3 has obtained the map in respect of Village – Haladi concerned in this Suit from the Office of Land Records, Karveer, on the date 23.03.2021 and it is seen that the width of the existing road passing from in front of the property which is the subject matter of the present Suit- Application is little bit more than 16 meters and that the husband of Defendant No.1 has made encroachment within 08 meters from the centre point of the said road. D) The work of improvement in the existing width of the said road has been commenced by the Defendant No.3 and therefore, the encroachers, on their own, should remove their encroachments that become obstacles in the said work. Moreover, there is no necessity to give them compensation or to acquire their land for the said work, because, the said work is going on within the existing boundary of the Government Road.
16. It is the main contention of Respondent No.3 that there is no encroachment and that the alleged encroachment is, in fact, a weather shed. However, photographs which are produced on record clearly show that the same is not a weather shed and the same is an unauthorised structure.
17. It is the contention of Mr. Narvankar, learned counsel appearing for the Respondent No.3 that the notice of an encroachment on which the Petitioners have relied, is completely silent on the nature of the encroachment and the same is cyclostyle in nature. It appears that the said notice is served upon several occupants who have encroached upon the said Government road. The said notice is on page 91 of the Writ Petition compilation and is dated 10th February 2021. The same reads as under: ßmi vfHk;ark lkoZtfud cka/kdke mifoHkkx] HkqnjxM;kaps dk;kZy; nqj/ouh dza- ¼02324½ 22006[8] bZ&esy& bhudhargad.de@mahapwd.com tk-dz-rka-'kk@Hkqn@vfr@212@2021 fn- 10 FEB 2021 uksVhl izfr] ckGklks Jhirh lqrkj eq-iks-gGnh rk-djohj ft- dksYgkiwj fo"k; & vfrdze.k dsys ckcr----ojhy fo"k;kl vuql:u dGfo.ksr;srs dh] dksYgkiwj xkjxksVh xMfgaXyt ukxuokMh jLrk jkek dz-189 ojhy fd-eh- 5@500 rs 42@250 jLR;kps dke izxrhrj vkgs- lnj jLR;kojhy fd-eh- 14@900 rs 15@500 e/;s fjcu MsOgyiesaV vWDVpk Hkax d:u jLR;kP;k mtO;k cktwl jLR;kP;k e/;kiklwu 8-00 ehVj varjkps vkr [kksds@bekjr@? kj@Vijhps vfrdze.k dsys vkgs- rjh lnjph uksVhl feGrkp lnjps dsysys vfrdze.k dk<w.k ?ks.ksr;kos- vU;Fkk dsysys vfrdze.k;k [kkR;kekQZr dk<wu Vkd.ksr;sbZy o 'kkldh; ekxkZus;ksX; rh dk;Zokgh dj.ksr;sbZy;kph dVk{kkus uksan ?;kohmifoHkkxh; vfHk;ark lk- cka- mi foHkkx] HkqnjxM izr %& ek- dk;Zdkjh vfHk;ark lk- cka ¼nf{k.k½ foHkkx] dksYgkiwj;kauk ekfgrhlkBh lfou; lknjizr %& ek- rgflynkj] djohj;kauk ekfgrhlkBh o vko';d dk;ZokghlkBh lLusg vxzsf"kr izr %& ek- iksfyl fufj{kd] djohj;kauk ekfgrhlkBh o vko';d dk;ZokghlkBh lLusg vxzf"kr izr %& ek- ljiap] xzkeiapk;r gGnh rk- djohj ft- dksYgkiwjÞ The English translation of the said notice is as follows: "OFFICE OF THE DEPUTY ENGINEER, PUBLIC WORKS SUB DIVISION, BHUDHARGAD. TELE NO. (02324) 22006[8] e-mail: bhudhargad.de@mahapwd.com Outward No.: T.B./Bhud./Encro./ 212/2021 Date: 10th Feb. 2021.
NOTICE To, Shri Balasaheb Shripati Sutar, At and Post – Haladi, Taluka – Karveer, District – Kolhapur. Subject: Regarding encroachment….. In connection with the abovementioned subject, it is informed that the work of the road between kilometer 5/500 to 42/250 on State Road No.189 – Kolhapur – Gargoti – Gadhinglaj – Naganwadi Road is in progress. Encroachment of Boxes / Building / House / stalls has been made within the distance of 8.00 meters from the centre point of the road on the right side of the said road by violating the provision of the Ribbon (Urban) Development Act. Hence, as soon as you receive this Notice, you should remove the said encroachment or else, the said encroachment shall be removed by this Department and appropriate action shall be taken in lawful manner, which may be noted categorically. (Signature Illegible) Sub Divisional Engineer, P.W. Sub Division, Bhudhargad. Copy respectfully submitted to the Executive Engineer, P.W. (South) Division, Kolhapur, for information. Copy forwarded with compliments to the Tahasildar, Karveer, for information and necessary action. Copy forwarded with compliments to the Inspector of Police, Karveer, for information and necessary action. Copy to the Sarpanch, Grampanchayat Haladi, Taluka – Karveer, District – Kolhapur."
18. The said notice dated 10th February 2021 clearly shows that the unauthorised construction is within 8 meters from the center of the road. In the present case, it is significant to note that in the said Dispute Application No.16 of 2021, the Collector by order dated 15th November 2021 directed that measurement be carried out to ascertain about the encroachment. The record further shows that, accordingly, the Deputy Superintendent of Land Records, Karveer has completed the work of measurement on 8th December 2021 and prepared the map. In the said map, the Survey Officer has shown the encroachment made by the husband of Respondent No.3 and the same is on the road. The say filed by the Deputy Engineer, P.W.D., in said Dispute Application, relevant contents of which are set out herein above clearly show (Signature Illegible) the encroachment. Thus, assuming that the notice given by the Deputy Engineer, Public Works Department is vague, still it has been established that the husband of the Respondent No.3 has encroached upon Government land attracting disqualification under Section 14(1)(j-3) of the said Act.
19. It is the further contention of Mr. Narvankar, learned counsel appearing for the Respondent No.3 that the order of the Collector disqualifying the Respondent No.3 is completely silent on the nature of the encroachment and the property on which the same is made. It is significant to note that the Collector has taken into consideration the notice given by the PWD. The said notice has not been challenged in any Court contending that the same is illegal and also the Collector has relied on the survey report dated 17th December 2021 of the Deputy Superintendent of Land Records. Apart from these factors, the Collector has also relied on the fact that on 15th February 2022, Respondent No.3 agreed to remove the encroachment and, accordingly, the same is recorded in the Roznama. The survey map prepared on 17th December 2021 clearly shows the encroachment and, therefore, there is no substance in the contention that the Collector is completely silent on the nature of the construction/encroachment and the property on which it is made.
20. It is the further contention of learned counsel appearing for the Respondent No.3 that the said property is an ancestral property of the husband of the Respondent No.3 and the Collector Kolhapur has not considered the said aspect. However, the factual position on record clearly shows that apart from the old encroachment/unauthorised construction, the husband of the Respondent No.3 has further carried out new encroachment/unauthorised construction affecting the Government road and the disqualification order is not passed on the basis of the old construction/encroachment but the same has been passed on the basis of new encroachment/unauthorised construction. In fact, the roznama records the statement made by learned counsel appearing for the Respondent No.3. that the Respondent No.3 has agreed to demolish the unauthorised construction. It is clear that the same is concerning the new encroachment/unauthorised construction made by the husband of the Respondent No.3. Therefore, there is no substance in the said contention.
21. Mr. Narvankar, learned counsel appearing for the Respondent No.3 has submitted that the affidavit which has been filed by the Tahsildar, Taluka-Karveer, District-Kolhapur dated 17th August 2023 in this Writ Petition cannot be taken into consideration. He further submitted that it is well settled that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. He relied on the following decisions: [1] Mohinder Singh Gill & Anr. V. Chief Election Commissioner, New Delhi & Ors.[2] [2] Indian Red Cross Society V. New Delhi Municipal Committee & Ors.[3] [3] Nandkishore Ganesh Joshi V. Commissioner, Municipal Corporation of Kalyan & Dombivali & Ors.[4] [4] Commissioner of Police, Bombay V. Gordhandas Bhanji[5]
22. On the basis of the above decisions of the Supreme Court, it is his submission that it is well settled that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. He submitted that, it is settled legal position that the statutory authority, when it acts in terms of a statute is bound by its action. It cannot supplement or supplant the reasons later on by way of an affidavit. He submitted that the quasi-judicial order or even an administrative order has
3 (2003) 5 SCC 545: 2003 SCC OnLine SC 586 4 (2004) 11 SCC 417: 2004 SC OnLine SC 1328 5 (1951) SCC 1088: 1951 SCC OnLine SC 70 to contain reasons, which can neither be supplied nor supplanted subsequently. There cannot be any dispute with the above legal position. However, in this case, the Collector, Kolhapur has given valid reasons for passing the order disqualifying the Petitioner and, in fact, in the said affidavit of Tahasildar dated 17th August 2023 filed in this Writ Petition, the factual position which was already on record before the Collector is reiterated. In fact, perusal of said affidavit-in-reply clearly shows that what is set out in the said affidavit-in-reply filed in the present Writ Petition is already set out in the say filed by the Respondent No.5, the Deputy Engineer, Public Works Department, Sub-Division before the Collector. In any case, adequate reasons are given by the Collector, while passing the disqualification order.
23. It is the submission of Mr. Narvankar, learned counsel appearing for the Respondent No.3 that an order could not have been passed on the basis of admissions made by the learned Advocate appearing for the Respondent No.3 before the Additional Divisional Commissioner. He submitted that Respondent No.3 is in fact not bound by the statement or admission which has been made by her Advocate without any authority. He submitted that, the Respondent No.3 could not have made such an admission as the same would in fact, amount to accepting the encroachment and the same would have drastically affected her preventing her from holding office of Sarpanch and also as a member of the said Gram Panchayat. To substantiate the said contention, he has relied on Himalayan Coop. Group Housing Society (supra).
24. It is to be noted that the Collector while passing an order disqualifying the Petitioner has relied on several factors including that a notice has been served by the PWD regarding the said encroachment, the said notice has not been challenged in any Court by the Respondent No.3 or her husband, pursuant to the order passed by the Collector dated 15th November 2021 the survey map was prepared by the Deputy Superintendent of Land Records on 17th December 2021 and that the said survey map shows the encroachment. Thus, it is clear that the impugned order is not passed only on the basis of the admission made by Respondent No.3 as noted in the roznama dated 15th February 2022 and the same is an additional corroboration of the fact about encroachment on Government road/land by the Respondent No.3 or her family members.
25. The submission of Mr. Narvankar, learned counsel appearing for Respondent No.3 that said admission is only with respect to weather shed is without any basis. The relevant portion of Roznama clearly show that what is represented by the Respondent No.3 is as follows:- ßfo- i-1;kauh vfrdze.k,dk vkBoM;kr dk<.;kps dcqy dsys vkgsÞ- (Opposite Party No.1 has agreed to remove the encroachment within one week). Thus, the Respondent No.3 agreed to remove the encroachment and by no stretch of imagination, it can be said that the same is only concerning the weather shed.
26. The reasons recorded in paragraph 6.[3] of the impugned order dated 9th February 2023 passed by the Additional Divisional Commissioner, Pune Division, Pune, are totally contrary to the map prepared by the Deputy Superintendent of Land Records, Karveer. In fact, the said reasons are imaginary and the reasons given in paragraph 6.[4] are also not correct as the notice of measurement has been given to the concerned person. In fact, the Additional Divisional Commissioner, Pune Division, Pune stated in the operative part that the notice should be given to all concerned and inquiries as well as the measurements be done in the presence of the villagers. It is not clear why the measurements are directed to be carried out in the presence of the villagers. Section 14(1) (j-3) of the said Act contemplates that, no person shall be a member of Panchayat or continue as such who has encroached upon Government land or public property and for determining the same, presence of villagers is not necessary. Therefore, there is no basis for such directions. In any case, the Deputy Superintendent of Land Records has prepared the measurement plan after following the procedure established by law. The entire reasoning given by the Additional Divisional Commissioner, is contrary to the documents on record. Thus, impugned order is perverse and requires to be quashed and set aside. The Collector by giving very valid and cogent reasons has passed the order of disqualification. Thus, the same deserves to be restored.
27. Accordingly, the following order is passed:
(i) The order dated 9th February 2023 passed by the
Additional Divisional Commissioner, Pune Division, Pune in Appeal No.14 of 2022 is quashed and set aside and the order dated 24th June 2022 passed by the Collector, Kolhapur in the Dispute Application No.16 of 2021 is restored.
(ii) The Writ Petition is allowed in the above terms with no order as to costs.
(iii) In view of the disposal of the Writ Petition, nothing survives in the Interim Application and the same is also disposed of. [MADHAV J. JAMDAR, J.]