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Anita Dhammapal Bodade v/s The Hon'ble Minister for Rural Development, through Secretary & Others

    Writ Petition No. 4121 of 2018

    Decided On, 11 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE S.B. SHUKRE

    For the Petitioner: K.S. Narwade, Advocate. For the Respondents: R1 & R6, Ritu Kalia, A.G.P., R2, S.D. Chopde, Advocate.



Judgment Text

Oral Judgment:

1. Reply of respondent No.2 filed by the learned Counsel Shri S.D. Chopde is taken on record.

2. Issue notice for final disposal at the admission stage to respondent Nos.1, 2 & 6. Ms. Ritu Kalia, learned Assistant Government Pleader waives service of notice on behalf of respondent Nos.1 & 6 and Shri S.D. Chopde, learned Counsel waives for respondent No.2. There is no need to issue notice to respondent Nos.3, 4 & 5, they being formal parties and the issue involved in this petition being capable of resolution through the interpretation of the applicable provisions of law.

3. Rule. Rule made returnable forthwith. Heard finally by consent.

4. The issue involved in this petition is as to whether or not the petitioner, an elected Sarpanch of Grampanchayat Wadiadampur, Tahsil Telhara, District Akola has incurred disqualification in terms of Section 39(1) of the Maharashtra Village Panchayats Act, 1958 (hereinafter referred to as 'V.P. Act' for short) on account of misconduct on her part.

5. The issue has been answered against the petitioner by the Divisional Commissioner as well as the Hon'ble Minister by their orders respectively passed on 04/04/2018 and 26/06/2018.

6. According to the learned Counsel for the petitioner, the Sarpanch has been authorized to levy taxes upon the structures made on the encroached lands in terms of the Government Resolution, dated 18/07/2016, which has been issued by the Government in consonance with the provision of Section 124 of the V.P. Act. He sub

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mits that under Rules 9 and 20 of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 (hereinafter after referred to as 'Rules 1960' for short), the Sarpanch has power to not only prepare the assessment list of the buildings, structures, lands etc. for levying of the tax, but has also power to take action for levying of the tax on such buildings. Therefore, the resolution passed by the Sarpanch and the tax assessment list prepared in prescribed Form-8 by the Sarpanch for levying taxes upon the structures made by making encroachments cannot be said to be against the provisions of law. He also submits that the resolution passed by the Gram Sabha on 18/07/2016 also shows that this action has been taken bona fide by the petitioner with a view to increase the income of the Gram Panchayat and it was not for her personal benefit. So, he submits that this would also show the bona fides of the petitioner.

7. The learned A.G.P. as well as the learned Counsel for respondent No.2 support the impugned orders. According to them, no patent illegality has been committed in passing the impugned orders. They submit that the Government Resolution dated 18/07/2016, cannot be so read as to authorize a Gram Panchayat or Sarpanch to levy tax upon a structure or building existing on a land or belonging to the Government and which has been made by encroaching upon such a land. They submit that on the contrary, the Government Resolution, dated 04/12/2010, mandates that the Sarpanch and the concerned Gram Panchayat must take immediate action for removal of the encroachments, the moment encroachments are noticed. They also submit that in the case of Jagpal Singh and others vs. State of Punjab and others – (2011) 11 SCC 396, the Hon'ble Apex Court has expressed it's anguish and concern over the inaction of the concerned authorities regarding removal of the encroachments made upon the common village lands or the government lands. The Hon'ble Apex Court has, therefore, issued various directions including the direction for preparing the scheme for removal of the encroachments in a certain time frame by the concerned Governments and the local authorities.

8. Upon consideration of the relevant provisions of law, such as Section 124(2) of the V.P. Act and Rule 18 of the Rules 1960, I find that none of these provisions authorizes a Sarpanch to levy tax upon an encroacher, who has made an encroachment upon the common village land or the government land.

9. Section 124(2) of the V.P. Act prescribes that the tax on buildings or lands referred to in clause (i) of sub-section (1), which are described as buildings and lands within the limits of the village, shall be leviable from the owners or occupiers of such buildings and lands.

10. Rule 18 of Rules 1960 prescribes as to from whom tax is primarily leviable. It lays down that the tax shall be leviable primarily from the actual occupier of the building or land upon which it is assessed. This provision, when considered in it's entirety, reveals that it envisages that the occupier of the building or land is a person in whom some or other right is vested in law and that is the reason why it clarifies the word occupier by taking into account various situations in which the occupier of the building or land may find himself. So, it says that the tax shall be leviable from the occupier of the building or land in the following situations:

i. When the occupier is the owner of such building or land and ;

ii. if the occupier of the building or land is not the owner himself, then, the tax is primarily leviable from –

(a) the lessor, if the property is let,

(b) the superior or lessor, if the property is sub-let

(c) the person in whom the right to let the same vests, if it is unlet and

(d) the person to whom the land or building has been transferred if the owner of the land or building has left the village or cannot otherwise be found.

So, it is clear that this rule only clarifies the position regarding leaviability of the tax from the owners or the occupiers of buildings and lands as prescribed under the substantive provision of Section 124(2) of the V.P. Act.

11. These two provisions of law would make it clear that the tax is leviable only on a person who is the owner of the building or land or a person who is occupier of the building or land in the capacity of lessor or sub-lessor or a person having right to let the land or building or a person to whom the land or building has been transferred. These provisions of law do not lay down anywhere that the tax is leviable on and recoverable from an encroacher, who has made an illegal structure on the encroached land.

12. The learned Counsel for the petitioner has also referred to Rules 9 and 20 of the Rules 1960. However, reliance upon these provisions can be made only when the tax is found to be leviable on the lands or buildings as contemplated under Section 124 of the V.P. Act read with Rule 18 of the Rules, 1960 and in the facts of the present case, I do not think that there is any occasion for this Court to consider the applicability of the Rules 9 and 20 of the Rules, 1960, for, the facts and law discussed earlier have shown that tax is not leviable on and recoverable from encroachers.

13. There is, of course, a Government Resolution, dated 18/07/2016, which authorizes a Gram Panchayat to levy tax upon certain buildings and constructions. It prescribes that tax can be levied by the Gram Panchayat upon those buildings and structures which have been constructed or made without any prior sanction or which are unauthorized. It also prescribes the procedure to be followed in such cases for levying of the tax. According to this procedure, necessary entries are required to be taken in the assessment list prepared as per the prescribed Form-8. Then, this Government Resolution goes on to add a clarification to the effect that by preparing assessment list and including such unauthorized buildings and structures in the assessment list, the unauthorized buildings and structures would not by themselves become authorized. In this clarificatory note, there is also a word employed which is 'vfrdzfer', indicating that the structure is made by encroachment, and it is this word which is being read by the petitioner as the source of her power to levy tax on structures raised on government lands encroached upon, which I see to be a misreading of the term.

14. This word, 'vfrdzfer', denoting a structure made by encroaching upon government land, could not be interpreted by any stretch of imagination as giving authority to a Gram Panchayat to levy tax upon it. The reason being that this word has appeared along with the other words referring specifically to the unauthorized buildings/structures and, therefore, the meaning conveyed by the other words would also have to be taken for understanding the connotation of Marathi word 'HINDI'. This word has been employed in paragraph 3 of the Government Resolution, dated 18/07/2016, in following manner:-

'HINDI'

15. All these words i.e. 'HINDI' clearly form one group of words having similar characteristics and have been used together to make an authoritative statement of purpose sought to be achieved. The purpose is that such type of unauthorised or illegal structures and constructions, by bringing under tax liability, do not turn into authorised structures. When we consider the purpose sought to be achieved, the word 'vfrdzfer' would connote the same meaning as is conveyed by other similar words appearing in this group of words. There is another dimension involved. This Government Resolution enables a Gram Panchayat to levy tax upon unauthorised structures by prescribing a certain procedure. When such authority is given by the Government Resolution, the authority cannot be construed as giving more power than is available under the substantive provisions of law and rules made thereunder, which are Section 124(2) of the V.P. Act read with Rule 18 of the Rules, 1960. We have already seen that these provisions do not authorize a Gram Panchayat to levy tax on structures of encroachers.

16. Even otherwise, the authority so given to the Gram Panchayat is only by way of an executive direction, which cannot prevail upon the statutory provisions of law discussed earlier, according to which, no authority has been given to the Gram Panchayat to levy any tax upon the buildings or the structures made upon the land, which is a land encroached upon.

17. In view of the above, the only conclusion that can be drawn in the present case is that the petitioner acted in the present case without any authority of law and in an illegal manner. Now the question would be, whether such action would amount to misconduct on her part or not. According to the learned Counsel for the petitioner, it was a bona fide mistake and, therefore, it cannot be treated as a misconduct as contemplated under Section 39(1) of the V.P. Act. This has been disagreed to by the learned A.G.P. for the State and also the learned Counsel for respondent No.2.

18. I think the disagreement expressed by the learned A.G.P. and the learned Counsel for respondent No.2 is in consonance with the facts established on record. If one goes through the resolution passed by the Gram Panchayat and also the assessment list prescribed as per Form-8, one would find that the action taken by the petitioner could not be described as having been borne out of bone fide intention on her part. There is no mention whatsoever in these documents that the persons, who were shown as occupiers of certain lands were the encroachers. Of course, there is a mention about the fact that the tax was being levied with a view to increase the income of the Gram Panchayat. But, there is no justification or any reason stated in these documents as to why these persons, who are the encroachers, have been described as occupiers and not as encroachers. The consequences of such description made of persons on whom the tax has been levied are too significant to be ignored.

19. There is a sea of difference between a person who is an encroacher and one who is an occupier of the government land or building in the context a dispute of present nature. The discussion made by me while interpreting the provisions of Section 124(2) of the V.P. Act and Rule 18 of Rules, 1960 would show it. Therefore, it was necessary for the petitioner to have clarified the status of the persons whose names are entered in Form-8 by mentioning in a specific manner that they were the encroachers, but that was not done by the petitioner, rather, the petitioner, admittedly shown these persons straightway as 'occupiers', without further qualifying them as 'encroachers'. Once the person is shown as an occupier in Form-8, the description would confer a particular status upon that person thereby indicating that a person is not an encroacher, but is a person having some rights vested in him in law. This is the reason why the action taken by the petitioner cannot be said to be performed in good faith and this is where the argument of the learned Counsel for the petitioner about presence of bona fide in the dispute fails.

20. This was a case, which required the petitioner to uphold the law by following the directions of the Hon'ble Apex Court issued in the case of Jagpal Singh (supra), wherein the Hon'ble Apex Court directed that no illegal encroachments upon the village/Gram Panchayat lands be regularized and long duration of occupation or huge expenditure incurred in making constructions thereon or political connections is no justification for regularizing such illegal occupations. Not only that, the petitioner was also duty bound to obey the directions issued by the State of Maharashtra in Government Resolution No.2010/P.K.252/P.S.8, dated 04/12/2010. This resolution casts various obligations upon the Gram Panchayats including an obligation to remove the illegal encroachments forthwith. It also lays down in clause 10 that if the office bearers of Zilla Parishad/Panchayat Samiti/Gram Panchayat do any acts in the nature of rendering any assistance to make encroachments upon the government and public lands, it would be considered as an instigation to make the encroachments and so, it would be treated as a misconduct as contemplated in Section 39 of the V.P. Act.

21. The facts of the present case would show that there being encroachments made by various persons on the government land, as admitted by the petitioner herself, the only action permissible in law was to proceed against the encroachers in terms of the directions issued by the Hon'ble Apex Court in the case of Jagpal Singh (supra) and the instructions of the State Government contained in it's Government Resolution, dated 04/12/2010. But, that was not done by the petitioner. On the contrary, a move was taken by her to confer upon them some legal status by showing the encroachers in the Gram Panchayat record, on the excuse of taking entries in Form-8 with a view to assess tax and increase income of Gram Panchayat, as occupiers without any clarification that their presence on land was as encroachers. This was clearly against the provisions of law. The move so taken by the petitioner was nothing but an instigation and encouragement to the encroachers to continue to occupy the government land even with greater strength gained from assessment of tax made for occupation of the land, though the occupation was born of encroachment and not of some legal right, which is the basic requirement for assessing a property to tax under Section 124(2) of the V.P. Act read with Rule 18 of the Rules, 1960.

22. What follows now and necessarily so, the authorities below have rightly found that the petitioner is guilty of misconduct in the present case and that she did not act in a bona fide manner. There is no merit in the petition and it deserves to be dismissed.

23. The writ petition stands dismissed. Rule is discharged with no order as to costs.
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