This writ petition is filed by elected sarpanch, up-sarpanch and three other members of gram panchayat Kathora (Bk.) challenging order dated 29/09/2017 passed by respondent No.2-Divisional Commissioner, Amravati, removing the petitioners from the said elected position under section 39(1) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as the “Act of 1959”) and order dated 06/02/2018 passed by respondent No.1-State of Maharashtra dismissing the appeal filed by the petitioners and confirming the order of respondent No.2-Divisional Commissioner.

2. The facts leading to the present writ petition are that the petitioners along with other persons were elected as members of the aforesaid gram panchayat on 27/04/2015. A complaint was filed by respondent No.5, an agriculturist and voter in the said gram panchayat, seeking removal of the petitioners on the ground that despite repeated directions by the State functionaries of the office of the Collector, Amravati, the petitioners had ensured that encroachment by certain persons on government land in the jurisdiction of the gram panchayat was not removed. This complaint was filed by respondent No.5 on 25/07/2016, before respondent No.2-Divisional Commissioner, who called for a report from respondent No.3-Chief Executive Officer of the Zilla Parishad. In pursuance of the said direction, a report dated 23/01/2017 was submitted by respondent No.3, wherein it was noted that the said encroachment was in existence even before the petitioners were elected as members of the gram panchayat in the election held in 2015. But, despite communications sent by the various authorities, they had failed to take appropriate steps and on this ground, it was concluded in the said report that the petitioners were partly guilty of the charges levelled against them.

3. The Divisional Commissioner i.e. respondent No.2 passed the impugned order dated 29/09/2017 holding that although the encroachment was in existence in the year 2012, the proceedings initiated by the encroachers for regularization of such encroachment had reached finality against them by order dated 10/01/2017 passed by the Divisional Commissioner and that despite being aware of the said order, and in the face of communication sent by the office of the Collector, the petitioners had failed to take appropriate steps in the matter and, therefore, they had made themselves liable for action under section 39(1) of the Act of 1959. Respondent No.2-Divisional Commissioner referred to section 53 of the Act of 1959 and stated that onus was upon the gram panchayat for removal of encroachment, while holding against the petitioners.

4. Aggrieved by the said order, the petitioners filed appeal before respondent No.1, which was dismissed by the impugned order dated 16/02/2018. The Respondent No.1, while dismissing the appeal essentially agreed with the findings given by respondent No.2-Divisional Commissioner, thereby confirming the removal of the petitioners from their elected positions. The petitioners filed the present writ petition challenging the said impugned orders.

5. Mrs. R.S.Sirpurkar, learned counsel appearing for the petitioners, submitted that the encroachment in question pertained to only two houses out of a number of such residential structures that encroached upon government land and that the said encroachment was in existence much prior to the petitioners being elected as members of the aforesaid gram panchayat. It was submitted that the report of respondent No.3-Chief Executive Officer of the Zilla Parishad also recorded the fact that the encroachment had been in existence even during the period when the earlier body was in office. It was further submitted that removal of only the aforesaid two structures was impossible and that it would have entailed removal of encroachment of such 50 or more structures and, therefore, adopting humane approach, the petitioners had not been able to take action for removal of the e