NATTHU S/O PANDHARIN... v. STATE OF MAHA. THR. ...

5. The petitioner by submitting his reply opposed the said application.

6. The Additional Collector after hearing both the parties and considering the fact that, the father of the petitioner without obtaining due permission from the forest department laid an underground pipeline to irrigate his field, has held that it is an encroachment on the government land and accordingly, the petitioner was disqualified vide order dated 29.08.2022.

7. The petitioner carried an appeal against the same, which came to be dismissed by the Additional Commissioner vide impugned order dated 31.10.2022. Hence, this petition.

8. The learned counsel for the petitioner submits that while dismissing the appeal, the Additional Commissioner without recording single reason has only observed that after going through the record, he arrived at a conclusion that appeal needs to be dismissed and accordingly, appeal is dismissed. He submits that therefore, the impugned order dated 31.10.2022 suffers from the principles of nature justice.

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9. He further submits that laying underground pipeline for water supply, cannot be considered as an encroachment over the government land. It is submitted that as far as permission from the forest department to lay underground pipeline is concerned, there is no provisions under the Act of 1959 attracting disqualification for not obtaining any such permission. He, therefore, submits that at the most, it may be an offence under the provisions of Forest Act, 1927 but in any case, it will not attract any disqualification under the provisions of the Act of 1959.

10. On the other hand, the learned A.G.P. fairly admits that there is no reason recorded by the Additional Commissioner in dismissing the appeal. However, he supports the order of the Additional Collector for disqualifying the petitioner as Sarpanch.

11. The learned counsel for the respondent No.7 submits that the Additional Collector has rightly held that laying the underground pipeline from the forest department without obtaining any permission from the forest department, amounts to encroachment over the forest land and as such, the provisions under Section 14(1)(j-3) of the Act of 1959 would attract in the present case. Accordingly, he prays for dismissal of the present writ petition.

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12. In light of the rival contentions, I have perused the record and the impugned order.

13. Before proceeding further to examine the matter on merit, at this stage, it would be appropriate to refer Section 14(1)(j -3), which reads thus :

"14. Disqualifications:-

(1) No person shall be a member of a Panchayat continue as such, who -

(j-3) has encroached upon the Government land or public property."

14. The controversy in the present matter revolves around a question whether laying underground pipeline for water supply through forest land, would amongst to encroachment.

15. Under the Act of 1959 the word 'encroachment' is not defined. However, if the dictionary meaning is considered, the encroachment means unauthorized occupation of Government land or public land by way of putting temporary, semi-permanent or permanent structure for residential use or commercial use or any other use.

16. Further the word 'encroachment' will be understood to cover mining pits, overburden dumps, construction of roads, etc. as held

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the Hon'ble Supreme Court of India in the case of Government of Andhra Pradesh v. Obulapuram Mining Company Private Limited¹.

17. The Co-ordinate Bench of this Court in a case of Sandip Ganpatrao Bhadade Vs. The Additional Commissioner²had an occasion to consider the definition of encroachment and after considering the definition given under Black's Law Dictionary, has observed thus:

"14. The word 'encroach' is a verb, which is defined in Black's Law Dictionary as under :

"encroach, vb. 1. To enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude.

2. To gain or intrude unlawfully upon another's lands, property, or authority."

Similarly, it is defined in Advanced Law Lexicon as under :

"Encroach. To intrude usurpingly; make gain upon, occupy, or use the land, right, or authority of another; to gain unlawfully lands, property or authority of another."

The word 'encroachment' is a noun, and it is defined in Black's Law Dictionary as under :

"encroachment, n. 1. An infringement of another's rights.

2. An interference with or intrusion onto another's property."

Similarly, in Advanced Law Lexicon, it is defined as under:

"Encroachment - Is "an unlawful gaining upon the right or possession of another man", a gradual entering on and taking possession by one of what is not his own; the gaining upon the rights or possession of another. The action of encroaching i.e. intruding usurpingly (on others' territory, rights etc.)"

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15. "To encroach" means to enter, intrude, infringe gradually upon the rights of others by unlawfully and without authority taking possession of the property, which is not of his own. Upon completion of such act, it becomes an "encroachment". The further act of continuing or remaining in such occupation or possession of the property with an intention or object of beneficial enjoyment would mean that the person committing encroachment has 'encroached' upon the property. An encroacher is a person, who encroaches.

16. In view of the aforesaid meaning of the terminologies

"to encroach", "encroachment", "encroacher" and

"encroached", whoever resides in the property or any portion thereof, which is an encroachment upon the Government land or public property, can be said to have

"encroached" upon it and becomes an "encroacher".

Whether such an encroachment is jointly with others and/ or individually, either at one time or at different times remains hardly of any significance' as he becomes liable to be removed and prosecuted under Section 53 of the said Act. Whether a person has become liable to be removed and/or prosecuted under Section 53 of the said Act from the Government land or public property, becomes a real test of attracting disqualification under Section 14(1)(j-3) of the said Act. If the answer is in the affirmative, the disqualification is incurred."

18. Thus, from the above referred definition of 'encroachment' and observation of co-ordinate bench defining the word 'encroachment', it is evident that underground pipeline for supply of water cannot be considered as an encroachment.

19. The collector has given much emphasis to the fact that the father of the petitioner while laying underground pipeline through the forest land to irrigate his field, without obtaining permission from the

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forest department and therefore, the department initiated proceeding under the Forest Act and dis-connected the water supply, while disqualifying the petitioner.

20. Whereas, the said fact is not relevant for disqualifying the petitioner, unless the act of the father of the petitioner laying underground pipeline, falls within the definition of the word 'encroachment'.

21. In the circumstances, both the authorities i.e. Additional Collector and Additional Commissioner have committed error in disqualifying the petitioner as Sarpanch of Gram Panchayat Ganeshpur. Accordingly, I pass the following order:

i) The writ petition is allowed.

ii) The impugned order dated 31.10.2022 passed by the Additional Commissioner, Nagpur in V.P.A. Appeal No.06 of 2022-23 and impugned order dated 29.08.2022 passed by the Additional Collector, Nagpur in Case No.01/MVP-14 (1) (j-3) and 16/2021-22, are hereby quashed and set aside. Rule is made absolute in above terms. No costs.

(ANIL S. KILOR, J)

C.L.Dhakate

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