Encroachment Allegation Requires Concrete Evidence, Not Mere Surmises: Bombay High Court Dismisses Plea for Disqualification of Sarpanch

Bombay High Court Dismisses Plea for Disqualification of Sarpanch Over Alleged Encroachment on Government Land - dismissed a writ petition challenging the reversal of a disqualification order against Santosh Sakharam Bhore, the elected Sarpanch of Korochi Village, Taluka Hathkanangle, District Kolhapur. The petitioners had sought the disqualification of Bhore under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958, alleging that his mother had constructed a house on government land, amounting to encroachment.

The Court upheld the order of the Additional Divisional Commissioner, Pune, which had overturned the disqualification imposed earlier by the Collector. The Court emphasized that removal of an elected official requires strict proof, and in the absence of concrete evidence, such disqualification cannot be sustained. The Court concluded that the petitioners had failed to prove the allegation of encroachment with sufficient evidence.

The Court observed that disqualification under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act requires definitive evidence of encroachment, either by the elected representative or their close family members. Justice Marne stated, “Disqualification is a statutory remedy with severe consequences, requiring strict adherence to statutory provisions and conclusive findings of encroachment. Mere surmises or probabilities cannot justify unseating a democratically elected official” [Paras 16-19].

The petitioners’ allegations rested on the claim that Bhore’s mother had constructed a house on government land and that Bhore resided in the said house. The Court, however, held that the petitioners had failed to establish the alleged encroachment conclusively. It also noted that entries in the Grampanchayat records and official reports supported the respondent's defense that the house was built under the National Rural Employment Programme (NREP) and was not an act of encroachment [Para 15].

The respondent had argued that his mother’s house was constructed in 1984 under the National Rural Employment Programme (NREP), a government initiative aimed at providing housing for landless laborers, particularly those belonging to Scheduled Castes and Scheduled Tribes. Supporting this defense, the respondent presented Grampanchayat assessment records, which identified his mother as a beneficiary under the NREP scheme. The records indicated that similar constructions existed for other individuals on the same land.

The Court considered the Circle Officer’s report dated February 22, 2022, which explicitly stated that the house had been constructed under the NREP scheme. It noted that the report further confirmed the construction of similar houses on the same land for other individuals. The Court concluded, “The panchanama and official records confirm that the house was constructed under the NREP scheme and cannot be treated as an encroachment for the purpose of disqualification” [Paras 13-15].

The petitioners alleged that Bhore had manipulated the Grampanchayat records to falsely categorize his mother as an NREP beneficiary. However, the Court rejected this claim, citing the Circle Officer’s findings and observing that the records predated Bhore’s election. It stated, “Entries in the Grampanchayat assessment register and the Circle Officer’s report support the respondent’s defense and cannot be brushed aside based on mere conjecture” [Para 15].

The Court reiterated that removing an elected representative from office is a serious action that requires strict compliance with statutory provisions and conclusive evidence. Relying on the Supreme Court’s decision in Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407, the Court underscored the principle that disqualification imposes a severe penalty, not just on the elected official but also on the electorate. Quoting the judgment, the Court stated, “Removal of an elected person casts stigma upon them and deprives their constituency of representation. Therefore, disqualification can only follow a proved misconduct or any other procedure established under law” [Paras 17-18].

Justice Marne further noted that the consequences of disqualification are severe and that such proceedings must adhere to higher standards of proof. He stated, “Since the consequences of disqualification are grave, the allegations leading to disqualification must be proved with concrete material, as opposed to the test of preponderance of probability” [Para 16].

The petitioners argued that Bhore resided with his mother in the alleged encroached house, citing documents such as a joint ration card and voter list as evidence of their shared residence. However, Bhore contended that he resided in a rented accommodation and produced a rental agreement to support this claim. While the Court did not fully accept Bhore’s defense due to the timing of the rental agreement, it held that even if Bhore resided with his mother, the petitioners still needed to establish that the house was constructed as an act of encroachment [Paras 10-11].

The Court emphasized that disqualification under Section 14(1)(j-3) requires a conclusive finding of encroachment. It held, “In the absence of definitive material on record to prove encroachment by the respondent or his mother, disqualification cannot be ordered” [Para 22].

The Court also dismissed the petitioners’ claims of manipulation, noting that the Circle Officer’s report, Grampanchayat resolutions, and other official documents validated the respondent’s defense. It stated, “Entries in the Grampanchayat assessment records, coupled with the Circle Officer’s findings, support the conclusion that the house was constructed under a government scheme and not as an act of encroachment” [Paras 13-15].

The Court dismissed the writ petition, upholding the Additional Divisional Commissioner’s order, which had reversed the disqualification of the respondent. It stated, “In the absence of concrete material proving encroachment by the respondent or his mother, disqualification cannot be ordered. The Additional Divisional Commissioner rightly set aside the Collector’s decision, and no infirmity is found in the impugned order” [Para 22].

The Court reiterated that disqualifying an elected representative requires strict adherence to procedural requirements and conclusive evidence. It concluded, “Seeking disqualification of an elected official is a statutory remedy, not an equitable remedy, and must meet higher standards of evidence” [Para 16].

Date of Decision: January 14, 2025