JUDGMENT :

1. Rule. Rule made returnable forthwith by consent of the parties.

2. The petitioner before this Court is an unsuccessful member of the Grampanchyat, who is declared as disqualified by Respondent No. 2, the Additional Divisional Commissioner, Aurangabad by setting aside the judgment and order passed by Respondent No. 3, the Collector, Nanded, by which the Collector had held that the Petitioner is not disqualified as there is no sufficient material to hold that the Petitioner or his family members have encroached upon the Government/public land.

3. The Petitioner was elected as a member of Grampanchyat Bori (Kh.), Tq. Kandhar, Dist. Nanded in the election held in March, 2021. Thereafter, she also became the Sarpanch by way of election amongst the members of the Grampanchyat. Respondent No. 5 filed a dispute under Section 14 (1) (j-3) of the Maharashtra Village Panchyats Act (for short “the Act”), stating that the house in which the Petitioner resides is constructed on the excessive area than permissible. It is held that there is encroachment on the Government/public land.

4. The Collector on receipt of the dispute filed against two persons including present Petitioner dated 28.03.2022, called report from the BDO. The BDO, on the basis of inspection conducted by the Deputy Engineer of Zilla Parishad (Construction), Sub Division, Kandhar, District Nanded submitted a report that there appears to be an excess construction on the Government/public land.

5. It is specific say of the Petitioner that there is no any encroachment made on the Government/public land. The learned Collector on going through the report submitted by the BDO held that a further report is necessary and called for a specific report by communication dated 20.06.2022. Pursuant to the said communication, the BDO directed the Deputy Engineer of Zilla Parishad (Construction), Kandhar to submit a specific report, which was specifically sought for, as to whether the father-in-law of the Petitioner has encroached upon the public/Government land. Along with that letter even Namuna No. 8 was also sent in respect of the residential property wherein the Petitioner resides.

6. The Deputy Engineer of Zilla Parishad (Construction), on visiting the spot and drawing the panchanama specifically answered that the house property of the Petitioner does not come on the road.

7. The learned Collector on considering all the material, specifically recorded that no encroachment of the house property is on the public/Government land. He allowed the dispute only to the extent of another member namely Chhaya Tokalwad and rejected the dispute to the extent the Petitioner by order dated 05.01.2022.

8. Respondent No. 5 challenged the order of the Collector by filing an appeal before the Additional Divisional Commissioner, Aurangabad. The said appeal came to be allowed by holding the petitioner to be disqualified under Section 14 (1) (j-3) of the Act.

9. The learned Advocate for the Petitioner submits that there is no any specific report or finding that there is any encroachment on the public/Government land, assuming that there is encroachment and it is not in fact an encroachment and as per the report it is only an excess construction. He thus, submits that there is no question of incurring disqualification of the petitioner as there is no encroachment found on the public/Government land or road. The provisions of Section 10 (1)(j-3) of the Act is attracted only if there is an encroachment found on the public/Government land. He submits that the learned Collector has rightly appreciated the report and recorded the finding that there is no encroachment on the public/Government land.

10. The learned Additional Divisional Commissioner, however, without sufficient reason and sufficient material on record has set aside the finding of the learned Collector without any cogent reason. The learned Advocate thus, prays for quashing and setting aside the order passed by the learned Additional Divisiona