The main legal point established in the judgment is the legislative object of preventing encroachment on government land or public property, as enshrined in the Maharashtra Village Panchayats Act, 1959, and its application to the petitioner's case.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at the stage of admission.

2. This petition under Article 227 of the Constitution of India assails the legality, propriety and correctness of the judgment and order dated 28th September, 2022 passed by the Additional Divisional Commissioner, Pune in Gram Panchayat Appeal No. 5/2022 whereby the appeal preferred by respondent No. 5 under section 16(2) of the Maharashtra Village Panchayats Act, 1959 (the Act, 1959) came to be allowed by setting aside the order passed by the District Collector in Gram Panchayat Dispute No. 207 of 2021 dated 25th February, 2022, and thereby declaring that the petitioner incurred disqualification to continue as a member of village panchayat, Manjri (Khurd), Tal. Haveli, District Pune under the provisions of section 14(1)(j-3) of the Act, 1959.

3. The background facts leading to this petition can be stated as under:-

a} In the election held in the year 2001 the petitioner was elected as a member of village panchayat, Manjri. The petitioner was also elected as the Sarpanch of the village panchayat.

b} The respondent No. 6 lodged Dispute Application No. 207 of 2021 before the District Collector, Pune, the respondent No. 3, purportedly under section 14(1)(j-3) of the Act, 1959 alleging that the petitioner incurred disqualification for having committed encroachment on the government land. It was, inter alia, alleged that the petitioner had committed encroachment on Gaothan land bearing village panchayat property No. 553. The family members of the petitioner had also committed encroachment over Gaothan land and erected unauthorized construction. Thus, the petitioner had allegedly incurred disqualification to continue as a member of the village panchayat.

c} The petitioner resisted the Dispute Application by filing reply. It was categorically denied that the petitioner had committed encroachment over any government property. Sahebrao Undre, the uncle of the petitioner, was stated to be the holder of village panchayat property No. 553. The petitioner had no concern with the said property, even remotely. It was contended that the petitioner, his wife and son were residing separately from the petitioner’s father Uttam Undre. Neither the petitioner nor any of his family members were named as the person who has committed encroachment in the Register maintained by the village panchayat, in Form E. No notice was ever issued to the petitioner by any competent authority to remove the encroachment.

d} The District Collector, after considering the contentions of the parties and the material on record, was persuaded to dismiss the application holding that the respondent No. 6/ complainant could not establish that the petitioner or any of his family members had committed encroachment over the government property. The fact that the survey had not been completed at village Manjri weighed with the District Collector. It was further noted that a case for disqualification of the petitioner for the alleged encroachment by Sahebrao Undre, the petitioner’s uncle, was not made out.

e} Being aggrieved, respondent No. 6 preferred an appeal before the Additional Divisional Commissioner, Pune. By the impugned judgment and order the Additional Divisional Commissioner was persuaded to allow the appeal and hold that the petitioner did incur the disqualification. Giving weight to the entries made in the Inquiry Register to the effect that Namdeo Undre, the grandfather of the petitioner, had laid claim over the Gaothan land entered at Item No. 6 of the Register and the name of Namdeo Undre was entered as the person in occupation of the Gaothan land therein, the Additional Divisional Commissioner arrived at a finding that the property No. 359, Survey No. 2/1 was government property.

f} The Additional Divisional Commissioner further held that the ration card, in which the wife of the petitioner was shown to be the head of the family consisting of the