Point of Law: Principles of natural justice - While conducting an enquiry into disqualification of Councillor under Section 16 of M.V.P. Act, while following principles of natural justice, would be required to record evidence and permit cross-examination, would amount to re-writing the proviso to Section 16 (2) of M.V.P. Act, 1959.

JUDGMENT :

1. Heard Shri Gour, learned Counsel for the petitioner, Shri Virendra Dhage, learned Counsel for the respondent no. 4 and Shri K.L. Dharmadhikari, learned Assistant Government Pleader for the respondent Nos.1 to 3. None appears for the other respondents, though served.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.

3. According to Shri Gour, learned Counsel for the petitioner, the present petition raises a challenge to the order dated 28/8/2020, passed by the learned Additional Collector/ Respondent No.1 in Case No. 53/M.V.P. 14(1)(J-3)/2018-19, (Smt. Shashikala Dhyaneshwar Thakare Vs. Shri Nilesh Devaji Uike and others), whereby the application filed by the present petitioner for return of the appeal on the ground that there is mis-joinder of causes of action due to the joint allegations against the original respondent nos.1 to 8 that they were encroachers on Government land, thereby incurring disqualification, which is claimed to be required to be independently decided, has been rejected by the order dated 28/8/2020.

4. The petition also seeks a remand of the matter to the respondent no.1 for fresh adjudication of the application dated 31/7/2020 for conducting further enquiry in the matter of the original respondent no.2 and grant of permission to cross-examine Shri S.N. Tiwari, Talathi, Wanadongri, as according to the petitioner, the report of encroachment submitted by the Talathi was palpably incorrect, the alleged measurement was conducted behind the back of the petitioner and the truth was required to be brought out by cross-examining the Talathi, which also was rejected by the impugned order dated 28/8/2020, holding that since on the basis of the report of the Talathi, the Tahsildar had given his report, there was no need of any cross-examination.

5. Shri Gour, learned Counsel for the petitioner submits that the proceedings before the Collector suffer from a mis-joinder of parties and causes of action in as much as there were as many as eight persons against whom the allegations of encroachment were made and a separate cause of action arose against each one of them, which was required to be heard and decided independently, and entertaining a joint complaint against all of them, was not permissible, as each would have a separate defence and right to be heard and therefore the matters were required to be separately registered and heard independently of each other and failure of the Collector to do so, vitiates the proceedings.

5.1. Shri Gour, learned Counsel for the petitioner further submits that the right to cross-examine the person who had prepared the report showing that there was an encroachment, was a right vested in the petitioner, in view of the fact that the said report was being relied upon to unseat the petitioner, and therefore the application to cross-examine the Talathi, who had prepared the same, could not have been rejected. Shri Gour, the learned Counsel for the petitioner in support of his contention relies upon Vivek s/o Vishwanath Mane (Dr.) Vs. Akhtarkha Ganikha Pathan and others, 2014 (7) Bom.C.R. 347; Lalita Dilip Khandalkar Vs. Additional Commissioner, Amravati and others, 2019 (6) ALL MR 261; Ganesh Shankar Landge Vs. Additional Commissioner and others, 2011 (5) ALL MR 666; Hanumant Sahebrao Patil Vs. Additional Commissioner, Nashik and others, 2017 (3) ALL MR 209 ; Mandabai Vs. The Additional Divisional Commissioner, 2020 (6) ALL MR 555;

5.2. Shri Gour, learned Counsel for the petitioner therefore submits that for an enquiry of disqualification on the ground of encroachment, as is required to be conducted, under Section 14 r/w Section 16 of the Maharashtra Village Panchayats Act, 1959 (“the M.V.P. Act” for short hereinafter), it is permissible to lead evidence, which would then also indicate the permissibility of cross-examination, as without being tested on its anvil, the evidence led, would not be worthy of reliance.

6. Shri Vi