JUDGMENT : This writ petition is filed by elected sarpanch, up-sarpanch and three other members of gram panchayat Kathora (Bk.) challenging order dated 29/09/2017 passed by respondent No.2-Divisional Commissioner, Amravati, removing the petitioners from the said elected position under section 39(1) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as the “Act of 1959”) and order dated 06/02/2018 passed by respondent No.1-State of Maharashtra dismissing the appeal filed by the petitioners and confirming the order of respondent No.2-Divisional Commissioner. 2. The facts leading to the present writ petition are that the petitioners along with other persons were elected as members of the aforesaid gram panchayat on 27/04/2015. A complaint was filed by respondent No.5, an agriculturist and voter in the said gram panchayat, seeking removal of the petitioners on the ground that despite repeated directions by the State functionaries of the office of the Collector, Amravati, the petitioners had ensured that encroachment by certain persons on government land in the jurisdiction of the gram panchayat was not removed. This complaint was filed by respondent No.5 on 25/07/2016, before respondent No.2-Divisional Commissioner, who called for a report from respondent No.3-Chief Executive Officer of the Zilla Parishad. In pursuance of the said direction, a report dated 23/01/2017 was submitted by respondent No.3, wherein it was noted that the said encroachment was in existence even before the petitioners were elected as members of the gram panchayat in the election held in 2015. But, despite communications sent by the various authorities, they had failed to take appropriate steps and on this ground, it was concluded in the said report that the petitioners were partly guilty of the charges levelled against them. 3. The Divisional Commissioner i.e. respondent No.2 passed the impugned order dated 29/09/2017 holding that although the encroachment was in existence in the year 2012, the proceedings initiated by the encroachers for regularization of such encroachment had reached finality against them by order dated 10/01/2017 passed by the Divisional Commissioner and that despite being aware of the said order, and in the face of communication sent by the office of the Collector, the petitioners had failed to take appropriate steps in the matter and, therefore, they had made themselves liable for action under section 39(1) of the Act of 1959. Respondent No.2-Divisional Commissioner referred to section 53 of the Act of 1959 and stated that onus was upon the gram panchayat for removal of encroachment, while holding against the petitioners. 4. Aggrieved by the said order, the petitioners filed appeal before respondent No.1, which was dismissed by the impugned order dated 16/02/2018. The Respondent No.1, while dismissing the appeal essentially agreed with the findings given by respondent No.2-Divisional Commissioner, thereby confirming the removal of the petitioners from their elected positions. The petitioners filed the present writ petition challenging the said impugned orders. 5. Mrs. R.S.Sirpurkar, learned counsel appearing for the petitioners, submitted that the encroachment in question pertained to only two houses out of a number of such residential structures that encroached upon government land and that the said encroachment was in existence much prior to the petitioners being elected as members of the aforesaid gram panchayat. It was submitted that the report of respondent No.3-Chief Executive Officer of the Zilla Parishad also recorded the fact that the encroachment had been in existence even during the period when the earlier body was in office. It was further submitted that removal of only the aforesaid two structures was impossible and that it would have entailed removal of encroachment of such 50 or more structures and, therefore, adopting humane approach, the petitioners had not been able to take action for removal of the encroachment. It was submitted that if the facts of the present case were taken into consideration in the proper perspective, it could not be said that the petitioners were liable to be removed from elected positions under section 39(1) of the Act of 1959. It was further submitted that by way of additional affidavit, certain documents were placed on record to show that the respondent-State had now formulated a policy in the form of a government resolution dated 16/02/2018, whereby encroachments like the one in the present case were to be regularized. It was submitted that in the light of the said new policy adopted by the respondent-State, the very basis of removal of the petitioners had been taken away and that therefore, the impugned orders were required to be set aside. Reliance was placed on judgment of this Court on the case of Ramdas Bhikaji Darade v. The Hon'ble Minister of State, reported in 2009 (4) ALL MR 64. 6. Reliance was placed on judgment of this Court on the case of Ramdas Bhikaji Darade v. The Hon'ble Minister of State, reported in 2009 (4) ALL MR 64. 6. Mr.S.S.Dhengale, learned counsel appearing for the contesting respondent No.5, submitted that even if the encroachment in the present case was existing, prior in point of time when the petitioners were elected as members of the gram panchayat, there were repeated directions issued by the office of the Collector at Amravati to the gram panchayat and the petitioners for removal of the encroachment, but the petitioners were party to resolutions dated 28/06/2016 and 24/03/2017, which clearly demonstrated that despite the fact regarding dismissal of appeal for regularization filed by the encroachers on 10/01/2017 being brought to their notice, the petitioners had been party to resolutions refusing to take any action on the aforesaid encroachment. According to the learned counsel for respondent No.5, this material was correctly taken into consideration by respondent Nos.1 and 2, while holding against the petitioners. It was submitted that the actions of the petitioners were such that the provision of section 39(1) of the Act of 1959, was clearly attracted and that the writ petition deserved to be dismissed. 7. Mr. Shyam Bissa, learned A.G.P. appeared on behalf of respondent Nos.1 and 2. Mr. Shrikant Saoji, learned counsel appeared on behalf of respondent No.3 and Mr. N.A.Gawande, learned counsel appeared on behalf of respondent No.4. 8. Heard learned counsel for the parties. Section 39 of the Act of 1959 provides for grounds for removal of office of a sarpanch, up-sarpanch or a member of a gram panchayat for having indulged in misconduct in discharge of duty or any disgraceful conduct or in neglecting to perform duty or in being persistently remiss in discharge thereof. The said provision reads as follows: “39. Removal from office. [(1) The Commissioner may, – (i) remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. Removal from office. [(1) The Commissioner may, – (i) remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the Panchayat; or” (ii) remove from office the member, Sarpanch or, as the case may be, Upa-Sarpanch, if not less than twenty per cent, of the total number of voters in the village who have paid all dues of the Panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the Panchayat on the development activities are not placed before the Gram Sabha; and the information thereof is not displayed on the notice board as required by subsection (1) or (1A) of section 8 : Provided that, no such person shall be removed from office unless, in case of clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the Panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned though the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month; Provided further that, the Commissioner shall, after giving the person concerned a reasonable opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer, within a period of one month from the date of receipt thereof.]; [(1A) Where a person is removed from office of the Sarpanch or Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch during the remainder of the term of office of members of the Panchayat.] [(2) The Commissioner may subject to like condition disqualify for a period of not exceeding five years, any person who has resigned his office as a member, Sarpanch or Up-sarpanch and has been guilty of the acts and omission specified in subsection (1). (3) Any person aggrieved by an order of the Commissioner under subsection (1) or (2) may, within a period of fifteen days from the date of the receipt of such order, appeal to the State Government and the Government shall decide the appeal within a period of one month from the date of receipt thereof.]” 9. Since the aforesaid provision pertains to removal of a person, who is elected to the office of member, sarpanch, up-sarpanch of the gram panchayat, a case for removal has to be made out by appropriate facts and data on record, because any order passed in exercise of power under the said provision has the drastic consequence of removal of persons, who have been elected through democratic process in an institution that represents the rural voters to enable self government. 10. Therefore, it would be necessary to examine the facts in the present case in detail to conclude as to whether the impugned orders passed by respondent Nos.1 and 2 are sustainable. 11. A perusal of the report submitted by respondent No.3-Chief Executive Officer of the Zilla Parishad shows that the encroachment in question was undisputedly in existence at least since 2012, which was much before the petitioners were elected as members of the said gram panchayat. 11. A perusal of the report submitted by respondent No.3-Chief Executive Officer of the Zilla Parishad shows that the encroachment in question was undisputedly in existence at least since 2012, which was much before the petitioners were elected as members of the said gram panchayat. The said report records the aforesaid fact and yet concludes that the petitioners are found to be partly guilty of the charges levelled against them, which is on two counts, firstly, that the petitioners chose to ignore repeated directions given by the office of the Collector to remove the encroachment and secondly, that under section 53 of the Act of 1959 the onus was on the gram panchayat to remove encroachment. 12. This report was taken into consideration by respondent No.2-Divisional Commissioner and he made certain observations in the impugned order dated 29/09/2017. It appears that respondent No.2 took into consideration the existence of the encroachment and the fact that the Additional Collector, Amravati had by order dated 29/12/2012 passed an order to initiate action for removal of the encroachment within six months. It was also noted that the Block Development Officer had sent letters between 2011 and 2013 for removal of the encroachments but the said communications would have no effect on the present case because admittedly the petitioners herein were elected as members of the gram panchayat on 27/04/2015. Therefore, respondent No.2-Additional Commissioner has referred to dismissal of appeal of the encroachers by the office of the Divisional Commissioner himself by order dated 10/01/2017, whereby the orders of the Additional Collector stood confirmed. It was recorded that the Tahsildar and the Block Development Officer had informed the gram panchayat and the petitioners herein and, therefore, the petitioners were required to take action for removal of encroachments. Despite the aforesaid directions given by the concerned authorities, the petitioners failed to take appropriate action and on this ground respondent No.2 passed the impugned order removing the petitioners under section 39(1) of the Act of 1959. The relevant observations made by respondent No.2-Divisional Commissioner read as follows: “3. It is also clear that the Additional Collector, Amravati u/s.53(2-a) had ordered for removal of encroachment. It is also clear that Geeta Omkar Tayade and Omkar Motiram Tayade had applied for regularisation of encroachment before the concern authority which was subsequently rejected. Further the said order of the Additional Collector was also been challenged before this authority. It is also clear that the Additional Collector, Amravati u/s.53(2-a) had ordered for removal of encroachment. It is also clear that Geeta Omkar Tayade and Omkar Motiram Tayade had applied for regularisation of encroachment before the concern authority which was subsequently rejected. Further the said order of the Additional Collector was also been challenged before this authority. This Authority vide order dated 10.1.2017 had rejected the application filed by Geeta Omkar Tayade and Omkar Motiram Tayade. The Respondent no.12 is also a party to the said application. Thus the Respondent no.1 to 5 had stated that as the appeal was lying before the competent authority, the action of removal of encroachment could be initiated. 4. …......... 5. The Chief Executive Officer, Zilla Parishad in its enquiry report had opined that the existing body of the Grampanchayat is in existence from 10.05.2015. But had failed to comply with the orders passed by the Additional Collector vide order 19.12.2012. Further the Tahsildar and the Block Development Officer had also informed the Grampanchayat for removal of encroachment but the Grampanchayat had failed to remove the encroachment. 6. The Chief Executive Officer, Zilla Parishad, Amravati had also opined that the State Government vide Circular dated 04.12.2010 had also issued direction if the governing body fails to remove encroachment in the area of Grampanchayat then necessary action u/s.3(1)(one) of the Maharashtra Village Panchayat Act, 1958 should be taken. It is also found from the above circular dated 04.12.2010 the role of Deputy Chief Executive Officer (Grampanchayat) is also vital. 7. Further it is also clear that as the provisions u/s.53(2) of the Maharashtra Village Panchayat Act, 1958. ''The panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the panchayat or not, provided that if the site be vested in Government the permission of the Collector or any officer authorised by him in this behalf shall have been first obtained. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX. [It shall be the duty of the panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice by following the procedure mentioned above].”” 13. Since respondent No.1 dismissed the appeal of the petitioners by agreeing with the reasons given by respondent No.2-Divisional Commissioner, it is necessary to examine as to whether the grounds on which respondent No.2-Divisional Commissioner allowed the complaint of respondent No.5 and directed removal of the petitioners, were justified. 14. A perusal of the documents on record shows that the existence of the encroachment in question was clearly brought to the notice of the gram panchayat and that the same was taken into consideration in a meeting dated 28/06/2016 of the gram panchayat. A perusal of the resolution dated 28/06/2016 passed in the aforesaid meeting shows that the action regarding removal of encroachment was sought to be postponed at the behest of the petitioners on the ground that the encroachers had filed an appeal against the order of the Additional Collector. It is relevant to note that the five petitioners were on one side and there were five members of the gram panchayat, who opposed the aforesaid approach adopted by the petitioners and that therefore, there was equality of votes insofar as the said issue was concerned. Thereafter, on 24/03/2017, the gram panchayat met to again discussed the aforesaid issue of removal of encroachment. A perusal of the minutes of the meeting shows that in this meeting it was specifically brought to the notice of the gram panchayat that the appeal filed by the encroachers had been dismissed on 10/01/2017 and that therefore, action was expected to be taken against the encroachers. A perusal of the minutes of the meeting shows that in this meeting it was specifically brought to the notice of the gram panchayat that the appeal filed by the encroachers had been dismissed on 10/01/2017 and that therefore, action was expected to be taken against the encroachers. There was also reference made to the communications sent by the Block Development Officer and the Tahsildar to the gram panchayat for removal of the encroachment and yet on a proposal moved for removal of the encroachment and despite a specific communication given by the Secretary of the gram panchayat that it was necessary to abide by the directions of the Divisional Commissioner for removal of encroachment, the petitioners were party to a decision not to remove the encroachment. 15. In this context, it is relevant to refer to the communications sent by the Tahsildar dated 15/06/2015 and the Block Development Officer dated 29/03/2016 to the gram panchayat for removal of the said encroachment. The aforesaid documents clearly show that after the petitioners were elected on 27/04/2015, the office of the Collector through the Tahsildar and the Block Development Officer had repeatedly instructed the gram panchayat to remove the encroachment. The appeal filed by the encroachers against the order of the Additional Collector for removal of the encroachment also stood dismissed and yet the petitioners continued to be party to decisions for not removing the encroachment. In fact, the proceedings of the gram panchayat dated 28/06/2016 and 24/03/2017 clearly show that the petitioners repeatedly voted in favour of not removing the encroachment and not abiding by the directions given by the office of the Collector. 16. In this context, section 53 of the Act of 1959 assumes importance. “53. Obstructions and encroachments upon public streets and open sites. 16. In this context, section 53 of the Act of 1959 assumes importance. “53. Obstructions and encroachments upon public streets and open sites. (1) Whoever, [within the limits of the gaothan area of the village] (a) builds or sets up any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or structure or thing or any other encroachment or obstruction, or (b) deposits, or causes to be placed or deposited, any box, bale, package or merchandise or any other thing, or (c) without written permission given to the owner or occupier of a building by a Panchayat, puts up, so as to protect from an upper storey thereof, any verandah, balcony, room or other structure or thing, in or over any public street or place, or in or over upon any open drains, gutter, sewer or aqueduct in such street or place, or contravenes any conditions subject to which any permission as aforesaid is given or the provisions of any byelaw made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall on conviction, be punished with fine, which may extend to fifty rupees and with further fine which may extend to five rupees for every day on which such obstruction, deposit, projection, cultivation or unauthorised use continues after the date of first conviction for such offence. (2) The Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the Panchayat or not, provided that if the site be vested in Government the permission of the Collector or any officer authorised by him in this behalf shall have first been obtained. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recovered in the same manner as an amount claimed on account of any tax recoverable under Chapter IX. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recovered in the same manner as an amount claimed on account of any tax recoverable under Chapter IX. [It shall be the duty of the Panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice, by following the procedure mentioned above.] [2A) If any Panchayat fails to take action under subsection (2), the Collector suo motu or on an application made in this behalf, may take action as [provided in that subsection, and submit the report thereof to the Commissioner]. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorised cultivation of the crop and shall be recoverable from such person as an arrear of land revenue.] (3) The power under [subsection (2) or subsection (2A)] may be exercised in respect of any obstruction, encroachment or [unathorised cultivation of any crop] referred to therein whether or not such obstruction, encroachment or [unauthorised cultivation of any crop] has been made before or after the village is declared as such under this Act, or before or after the property is vested in the Panchayat. [(3A) Any person aggrieved by the exercise of the powers by the Panchayat under subsection (2) or (3) may, within thirty days from the date of exercise of such powers, [appeal to the Commissioner and the Commissioner, after making such enquiry as he thinks necessary, shall pass such orders as he deems necessary] after giving such person a reasonable opportunity of being heard.] [(3B) Any order made by the Collector in exercise of powers conferred on him under subsection (2A) or (3) shall be subject to appeal and revision in accordance with the provisions of the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1960). (4) Whoever, not being duly authorised in that behalf removes earth, sand and other material from, or makes any encroachment in or upon an open site which is not private property, shall, on conviction, be punished with fine which may extend to fifty rupees, and in the case of an encroachment, with further fine, which may extend to five rupees for every day in which the encroachment continues after the date of first conviction. (5) Nothing contained in this section shall prevent the Panchayat, from allowing any temporary occupation of, or erection in, any public street on occasions of festivals and ceremonies, or the piling of fuel in by lanes and sites for not more than seven days, and in such manner as not to inconvenience the public or any individual or from allowing any temporary erection on, or putting projection over, or temporary occupation of, any such public street or place for any other purpose in accordance with the bye laws made under this Act.” 17. A perusal of the aforesaid provision shows that under section 53(2) of the Act of 1959, the onus is on the gram panchayat to remove encroachment subject to taking permission from the office of the Collector. In fact, part of subsection (2) clearly states that it shall be the duty of the panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice, by following the procedure mentioned above. In the present case, the documents on record clearly show that the fact of encroachment was repeatedly brought to the notice of the gram panchayat and that it was incumbent upon the gram panchayat to have removed the same immediately. Yet the petitioners, being the elected sarpanch, up-sarpanch and members of the gram panchayat, were party to the decisions and resolutions seeking to do exactly the opposite. The submissions sought to be made on behalf of the petitioners that they had adopted the humane approach and that the removal of encroachment in question could also entail removal of encroachment of more than 50 such structures, does not find mention at all in the decisions and resolutions that have been brought on record. The petitioners by the force of their brute majority had undertaken actions that were completely against the obligations cast on the gram panchayat under section 53 of the Act of 1959. 18. A perusal of the above quoted section 39 of the Act of 1959 shows that an elected member, sarpanch or up-sarpanch can be removed from office, inter alia, for neglecting to perform his duty and being persistently remiss in discharge thereof. 18. A perusal of the above quoted section 39 of the Act of 1959 shows that an elected member, sarpanch or up-sarpanch can be removed from office, inter alia, for neglecting to perform his duty and being persistently remiss in discharge thereof. The facts of the present case as they have emerged from the documents and material on record clearly shows that the petitioners were negligent in performance of their duty as members of the gram panchayat and while holding majority in the house they were persistently remiss in discharge of their duty. Therefore, they clearly made themselves liable for removal under section 39(1) of the Act of 1959. In fact, the facts of the present case show that the petitioners were making all attempts to help the encroachers. It was for the petitioners as elected sarpanch, up-sarpanch and members of the gram panchayat to take steps to remove the encroachments as per the mandate of section 53 of the said Act. The encroachers could have taken appropriate steps available in law against the steps of the gram panchayat. But, by indulging in aforesaid actions, the petitioners indulged in misconduct in discharge of their duties, inviting the order of removal under Section 39(1) of the said Act. The judgment relied upon by the learned counsel for petitioners, in the case of Ramdas Bhikaji Darade Vs. The Hon'ble Minister of State (supra) is clearly distinguishable on facts, as the petitioner therein had carried out unauthorised construction before he was elected. Thus, the same is of no assistance to the petitioners. 19. As regards the submission made on behalf of the petitioners that subsequent to their removal from office, the respondent-State Government had come with a policy in the form of government resolution dated 16/02/2018 regarding regularization of encroachment, the correctness or otherwise of the impugned order passed by respondent Nos.1 and 2 cannot be decided on the basis of subsequent events that have occurred. In any case, such a policy which came into existence after the removal of the petitioners cannot accrue to their benefit. It might, if at all, accrue to the benefit of the encroachers. The Court in this case is concerned with the question as to whether the petitioners were liable to be removed from office under section 39(1) of the Act of 1959. It might, if at all, accrue to the benefit of the encroachers. The Court in this case is concerned with the question as to whether the petitioners were liable to be removed from office under section 39(1) of the Act of 1959. In view of the findings rendered above, it is clear that the petitioners were indeed liable for removal from the elected office and, therefore, the impugned orders deserve to be confirmed. In the light of the above, the instant petition is found to be without any merit and is dismissed. 20. The learned counsel appearing for the petitioners contended that since interim order was operating in their favour from 01/03/2018, the same may be continued for further period. A perusal of the order dated 18/12/2018 passed by this Court shows that despite the said interim order dated 01/03/2018, the petitioners were directed not to participate in any meeting of the gram panchayat. 21. Considering the fact that the counsel for the contesting respondent No.5 has vehemently opposed the continuation of interim relief, it is directed that the order dated 01/03/2018 passed by this Court read with order dated 18/02/2018 shall continue to operate only for a further period of four weeks. As a consequence the petitioners shall not participate in any meeting of the gram panchayat for the said period and on expiry thereof, the impugned order of their removal shall operate with full force.