Bombay High Court
Nathu S/O Chotelal Yadav And 3 Others vs The State Of Maharashtra, Through The ... on 4 May, 2018
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari
1 J-WP-95-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.95 OF 2018
1. Nathu s/o Chotelal Yadav,
Aged about 63 years,
Occ : Retired, R/o Kh.No.11,
Mouza Pandharabodi, Nagpur.
2. Rakesh s/o Nathu Yadav,
Aged about 40 years,
Occ : Business, R/o Kh.No.11,
Mouza Pandharabodi, Nagpur.
3. Ramesh s/o Dhansingh Baniya,
Aged about 55 years,
Occ :Business, R/o Kh.No.11,
Mouza Pandharabodi, Nagpur.
4. Milind s/o Manikrao Sable,
Aged about 43 years,
Occ : Business, R/o Shanwari Cotton
Market, Near Hanuman Mandir,
Nagpur-18. ... PETITIONERS
...V E R S U S...
1. The State of Maharashtra,
through the Secretary,
Revenue Department,
Mantralaya, Mumbai.
2. The Collector,
Collector Office,
Civil Lines, Nagpur.
3. The Tahsildar, (Nagpur City),
Akashawani Square,
Near Collector Compound,
Civil Lines, Nagpur.
4. Rashtrasant Tukdoji Maharaj
Nagpur University,
through its Registrar,
Ravindranath Tagore Marg,
Nagpur.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
2 J-WP-95-18.odt
5. Mr. Anoop Kumar,
The Divisional Commissioner,
Nagpur, Divisional Commissioner
Office, Civil Lines, Nagpur.
6. The Nagpur Municipal Corporation,
Nagpur through the Municipal
Commissioner, Nagpur.
7. The Nagpur Improvement Trust,
through its Chairman, Civil Lines,
Nagpur.
8. Mr. Manukumar Shrivastava,
Secretary, Revenue Department,
Maharashtra State, Mantralaya,
Mumbai-32.
9. Mr. Sachin Kurve,
Collector, Nagpur,
Collector Office,
Civil Lines, Nagpur.
10. Mrs. Priyadarshani Borkar,
Tahsildar, Nagpur City,
Akashawani Square,
Near Collector Compound,
Civil Lines, Nagpur Nagpur.
11. Mr. Rajesh Dethe,
Revenue Inspector,
Nagpur City & Spl. Law
Officer, Nagpur.
12. Mr. Puran Meshram,
Registrar, R.T.M. Nagpur
University, Nagpur,
R.T.M.N.U. Chhatrapati
Shivaji Maharaj Administrative
Premises, Ravindranath Tagore
Marg, Nagpur 440 001.
13. Mr. Pramod Yeole,
Pro-Vice Chancellor,
RTMNU, Nagpur,
R.T.M.N.U. Chhatrapati
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
3 J-WP-95-18.odt
Shivaji Maharaj Administrative
Premises, Ravindranath Tagore
Marg, Nagpur 440 001.
14. Mr. Vinod IIame,
Estate Officer, RTMNU,
Nagpur, R.T.M.N.U. Chhatrapati
Shivaji Maharaj Administrative
Premises, Ravindranath Tagore
Marg, Nagpur 440 001.
15. Mr. Dattatraya Harde,
Senior Engineer, RTMNU,
Nagpur, R.T.M.N.U. Chhatrapati
Shivaji Maharaj Administrative
Premises, Ravindranath Tagore
Marg, Nagpur 440 001.
16. Mr. Vasant Kanhere,
Enforcement Department Chief,
Nagpur Improvement Trust,
Civil Lines, Nagpur.
17. Mr. Ashok Patil,
Assistant Commissioner,
Enforcement Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
18. Mr. Sanjay Kamble,
Inspector,
Enforcement Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
19. Mr. Manjur Shah,
Inspector,
Enforcement Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
20. Mr. Jamshed Ali,
Inspector,
Enforcement Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
4 J-WP-95-18.odt
21. Mr. Sanjay Shingane,
Inspector,
Enforcement Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
22. Mr. Bhimrao Khandale,
Senior Police Inspector,
Police Station, Ambazari,
Nagpur.
23. Mr. R. G. Meshram,
Sub-Inspector,
Police Station, Ambazari,
Nagpur. ... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri M. G. Bhangde, Senior Counsel with Shri S. N. Tapadia, Advocate for petitioners.
Shri S. Y. Deopujari, Government Pleader with Ms. N. P. Mehta, Assistant Government
Pleader for respondent Nos.1 to 3.
Shri A. S. Kilor, Advocate for respondent No.4.
Shri S. M. Puranik, Advocate for respondent Nos.7 and 17.
-------------------------------------------------------------------------------------------
CORAM:-
B.P.DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
Date of reserving the Judgment : 04.04.2018
Date of pronouncing the Judgment : 04.05.2018
JUDGMENT :(PER ARUN D. UPADHYE, J.)
1. Rule. Rule is made returnable forthwith. The writ petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. On 08/01/2018, notice before admission was issued only to respondent Nos.1 to 7. Learned Senior counsel for the petitioners submitted that though the respondents are dispossessed, the petitioners continued in possession of 429 square meters of residential ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 5 J-WP-95-18.odt premises and 419 square meters which includes Café and Garden Restaurant and the parties were directed to maintain status quo as on today till returnable date. By subsequent order dated 29/01/2018, the status quo order was made continued.
3. By this petition, the petitioners sought relief to hold and declare that the action taken by the respondents on 30/12/2017 to demolish the structure standing on Khasra Nos.11/1 and 11/3 of Mouza Pandharabodi, Nagpur belonging to the petitioners shown in map at Annexure-1 is destructive of rule of law, unconstitutional and without authority of law. They further prayed that the action taken by the respondents is in violation of Judgment and Decree passed in Regular Civil Suit No.977/2001 dated 30/04/2012 passed by 3 rd Joint Civil Judge, Senior Division, Nagpur and order dated 16/12/2014 passed below Exh.23 in R.C.S. No.1404/2014 by 3 rd Joint Civil Judge, Senior Division, Nagpur and order dated 15/02/2016 passed by this Court in Writ Petition No.547/2016. They further prayed that the action taken on 30/12/2017 is in violation of Judgment and Decree dated 28/11/2017 passed by the Joint Civil Judge, Senior Division, Nagpur in RCS No.1027/2006 and Judgment and Decree dated 29/11/2017 passed by the Joint Civil Judge, Senior Division, Nagpur in R.C.S.No.1028/2006 and order below Exh.5 dated 04/12/2017 passed by the 3rd Joint Civil Judge, Senior Division, Nagpur in RCS No.1404/2014. They also prayed to try and punish the respondent ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 6 J-WP-95-18.odt Nos.5, 8 and 23 for contempt of trial court and this Court under the provisions of Contempt of Courts Act, 1971 and Article 215 of the Constitution with directions to restore the possession of the property and consequential relief.
4. The petitioners have contended that they are owners and they are in actual physical possession on part of Khasra Nos.11/1 and 11/3 of Mouza, Pandharabodi, Nagpur from more than 100 years till the impugned action was taken by the respondents on 30/12/2017. According to them, petitioner Nos.1 and 2 were residing as well as running their restaurant and marriage lawn business on the said property.
5. They further contended that respondent Nos.1 and 4 came with case that the land was acquired in Land Acquisition Case No.127/A-65/65-65 and award was passed on 28/12/1970 by the Land Acquisition Officer, Nagpur. The land admeasuring 38.05 acres including the property in question was acquired under the said acquisition case and total compensation of Rs.50,176/- was fixed and the same was paid by the University. It is also case of the respondent No.1 that the possession was taken over and allotted to respondent No.4 - University in the year 1970-1971. According to the respondents, the petitioners and others have encroached upon portion of Khasra No.11/1 and erected temporary structure and carrying out business thereon.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
7 J-WP-95-18.odt
6. The University has filed Regular Civil Suit No.344/1987 in the Court of Civil Judge, Senior Division, Nagpur against the petitioners and others for declaration, ownership and possession in respect of Khasra No.11 admeasuring 17.92 acres of land. The said suit was dismissed in default on 17/08/2006. However, respondent No.4 - University has not applied for restoration of the said suit.
7. The petitioners further contended that the Revenue Department had issued notice dated 31/01/1995 to the petitioner No.1 calling upon him to stop the construction and remove the encroachment within 2 days. The petitioner No.1 and others, therefore, filed Special Civil Suit No.385/1995 on 18/04/1995 and in the said suit, interim order of status quo was passed. It is further contended that after the trial, the said suit was decreed on 30/04/2012 by 3 rd Joint Civil Judge, Senior Division, Nagpur. It was held that the plaintiffs were in legal possession of 10 acres of land out of Khasra No.11/1 and notice dated 31/03/1995 was declared as without any legal force. The State and other respondents have challenged the said judgment by filing Regular Civil Appeal No.493/2015 before the District Judge, Nagpur and the same is pending. However, no interim order has been passed in the said appeal.
8. It is further contended that Writ Petition No.1668/2007 was filed before the High Court by Citizen Forum of Maharashtra Vrs. State of Maharashtra and others in public interest for restoration of ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 8 J-WP-95-18.odt 70.09 acres of land to respondent No.4 - University. This Court has passed the order on 15/10/2008. They further contended that the State has filed reply in the said writ petition and thereafter, this Court passed further order on 17/12/2008 and observed that the Collector, Nagpur will have to move the concerned Court, if there are any interim orders and the said writ petition was disposed of on 14/10/2009.
9. The petitioner No.1 has filed Special Civil Suit No.161/2013 against respondent No.1 - State and others before the Civil Judge Senior Division, Nagpur for declaration that he is owner of 1.76 HR of land out of Khasra No.11.
10. It is further contended that the officers of the Nagpur Municipal Corporation had issued separate notice dated 12/05/2006 to the petitioners calling upon them to demolish the structure erected upon Khasra No.11/1. The petitioners have filed Reg. Civil Suit No.1027/2006 and 1028/2006 in the Court of Civil Judge, Senior Division, Nagpur challenging the aforesaid notice. In the said suits, the Civil Court has granted interim relief directing the parties to maintain status quo in respect of the subject matter of the suit till the disposal of the case. The Tahsildar, Nagpur has issued notice dated 04/08/2014 to the petitioners under Section 53(1) of the Maharashtra Land Revenue Code, 1966. The petitioners have replied the said notice and thereafter, the Tahsildar has passed the order on 02/09/2014 for removal of the structure of the petitioners. The petitioners have challenged the said ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 9 J-WP-95-18.odt order dated 02/09/2014 by filing Writ Petition No.4795/2014 before the High Court. On 04/12/2014, the High Court permitted the petitioners to withdraw the writ petition and approach the Civil Court. Thereafter, the petitioners have filed Reg. Civil Suit No.1404/2014 before the Civil Judge, Senior Division, Nagpur for declaration that the aforesaid order of the Tahsildar is void, nullity and without jurisdiction. The petitioners have also filed application for temporary injunction and the 3rd Joint Civil Judge, Senior Division, Nagpur has passed the order on 16/12/2014 and directed the defendants to maintain status quo in respect of the order dated 02/09/2014.
11. The petitioners have contended that in spite of status quo order dated 16/12/2014 passed by the Competent Civil Court, respondents came on spot and attempted to remove the structure of the petitioners. The petitioners, therefore, constrained to file Writ Petition No.547/2016 which was disposed of on 15/02/2016. The High Court has directed that if injunction / status quo order passed by Competent Court, the same shall be respected by the State authorities and they shall not proceed towards the removal of the structure. The petitioners have contended that in spite of the orders of the Civil Court, the authorities have knowingly and deliberately violated the judgment and order of Civil Court and committed contempt of trial Court. The petitioners further contended that the act of the respondents on 30/12/2017 is highhanded. They have demolished the compound wall, ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 10 J-WP-95-18.odt hotel structure and damaged the property of the petitioners. According to them, they were in peaceful and settled possession of Khasra Nos.11/1 and 11/3 of Mouza Pandharabodi. According to them, the State or its officers cannot interfere with the right of the citizens and dispossess them. The petitioners, therefore, submitted that there is no other alternative or efficacious remedy for the petitioners but to file the present petition before this Court. Hence, this petition.
12. Respondent No.4 - Rashtrasant Tukdoji Maharaj Nagpur University has filed reply to the petition on 03/02/2018 and prayed for dismissal of the petition. According to this respondent, the present petition is not maintainable for various reasons namely; there are disputed questions of facts. In writ petition, they are seeking action of Contempt of Court and lastly, civil proceedings are pending and if there is any breach of order passed in civil proceeding, remedies are available to the petitioners. It is further submitted that the petitioners have deliberately suppressed material and important facts from this Court i.e. the land in dispute and extent of area actual in possession of the petitioners and extent of area involved in the demolition of structure carried out by the respondent-authorities on 30/12/2017.
13. It is submitted that the action taken by the respondents on 30/12/2017 in relation to the extent of area which does not cover by any of the interim orders which are operating in favour of the petitioners. The whole petition is misconceived and meritless and liable ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 11 J-WP-95-18.odt to be dismissed. It is further submitted that the petitioners are claiming ownership of land in dispute i.e. part of Khasra Nos.11/1 and 11/3. The petitioners are also claiming that they are in possession of the land in dispute to the extent of 429 square meters as far as petitioner Nos.1 and 2 are concerned and to the extent of 419 square meters as far as petitioner Nos.3 and 4 are concerned. They have intentionally not disclosed how they became the owners of the land in dispute and how they got right, title and interest over the disputed property. It is further submitted that the land of Khasra No.11 admeasuring 17.92 acres of land of Mouza Pandharabodi was acquired by the State Government and award was passed on 28/12/1970. In the award, it is mentioned that none of the claimants have objected during the said proceeding.
14. It is further submitted that petitioner No.1 Nathu Chotelal Yadav along with 11 have filed Special Civil Suit No.385/1995 on the basis that they are occupants of the said land and became owners by way of adverse possession. The petitioner No.1 has filed Reg. Civil Suit No.1027/2006 claiming to be the owners of the land in dispute and in actual possession more than 100 years. Another S.C.S. No.161/2013 and Reg. Civil Suit No.1404/2014 are also filed.
15. Respondent No.4 has also filed Special Civil Suit No.344/1987 before the Civil Judge, Senior Division, Nagpur for possession and permanent injunction against petitioner No.1 and others but the said suit was dismissed in default.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
12 J-WP-95-18.odt
16. It is further submitted that notice was issued by the Tahsildar dated 04/08/2014 to petitioner Nos.1 and 4 are concerned, it appears that petitioner No.1 is in possession of 429.90 square meters and land in possession of petitioner No.4 - Milind Manikrao Sable is 113 square meters whereas petitioner No.4 is claiming to be in possession of 419 square meters of land. It is further submitted that the petitioners have not shown actual boundaries of the land in which they are in possession. Unless petitioners come up with specific facts, it is very difficult to appreciate the allegations made in the present petition that contrary to the orders passed by the Courts, the demolition was carried out by the authorities on 30/12/2017.
17. It is further submitted that Special Civil Suit No.161/2013 filed by petitioner No.1 is pending before the Civil Judge, Senior Division, Nagpur in which he is claiming ownership to the extent of 1.76 hectares of land in Khasra No.11 Mouza Pandharabodi. It appears that petitioner No.1 made new story altogether different than story in Spl. Civil Suit No.385/1995 and R.C.S. No.1027/2006. The statement of petitioner thus, is misleading and therefore, petitioners are not entitled for repeated reliefs, as claimed. It is further submitted that petitioners themselves are not clear about the area in their occupation. The filing of the present proceeding is nothing but to pressurize the authorities. The respondents have not acted contrary to any orders of this Court or Civil Court in the present matter, as alleged by the ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 13 J-WP-95-18.odt petitioners. The demolition work which was carried by the Revenue Authorities and same is not the area covered and protected by interim orders of the Court. Lastly, it is submitted that the petitioners are not entitled for any of the reliefs, as claimed in the present petition. The petition, therefore, be dismissed.
18. Respondent Nos.2 and 3 have filed their reply dated 06/02/2018 and resisted the claim of the petitioners. They have submitted that Kh.No.11/3, area 2.20 HR belongs to the State Government. The said land along with other lands have been acquired under Land Acquisition Act vide Land Acquisition Case No.127/A- 65/65-65 vide Award dated 28/12/1970 for public purpose / education purpose. It is submitted that after acquisition, the compensation was paid to the original owners having right and title over the said land. The land is absolutely vested with the Government under Section 16 of the Land Acquisition Act. It is further submitted that the aforesaid land along with other lands were granted to Nagpur University for education purpose to establish its scheme.
19. It is submitted that as per directions issued by this Court in Writ Petition No.1668/2007 and in Writ Petition No.547/2016 dated 15/02/2016, these respondents have evicted the encroachers from the Government property on 28/01/2016, 16/02/2016 and 30/12/2017 strictly by adhering to the various orders of this Court and the Civil Courts. It is submitted that due to status quo orders passed by ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 14 J-WP-95-18.odt the learned 3rd Joint Civil Judge, Senior Division, the encroachment of petitioner Nos.1 and 4 i.e. 482 and 429 square meters over Government land, are not removed.
20. It is further submitted that the Nagpur University has also filed Special Civil Suit No.344/1987 against six encroachers. In the said suit, interim orders in favour of the Nagpur University was passed. However, subsequently, it was vacated. The Nagpur University has filed A.O. No.5/1989 before the High Court and status quo order was passed in the said proceeding. In the said proceeding, the parties filed joint pursis to the effect that status quo will be maintained over 1768.40 square meters of encroached land. It is further submitted that petitioner No.1 extended his encroachment over the Government land and erected some structure. The Government, therefore, initiated eviction proceeding and demolished some encroachment. It is further submitted that eviction notice was issued on 31/03/1995 to the petitioner No.1. The petitioner No.1 along with 11 others have filed Special Civil Suit No.385/1995 (Renumbered as RCS No.977/2001). The said suit was partly decreed on 30/04/2012 in which it was ordered that encroachment shall be removed by following due process of law. Thereafter, the Tahsildar, Nagpur issued notice under Section 53 of the Maharashtra Land Revenue Code, 1966 on 02/09/2014 to petitioner Nos.1 and 4 along with others. The petitioners, therefore, filed Writ Petition No.4795/2014 before this Court praying to quash and set aside ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 15 J-WP-95-18.odt the said notice. However, the petitioners have withdrawn the said writ petition on 04/12/2014 stating that they will approach to the Civil Court. The ad-interim relief granted in the said proceeding was made continued for two weeks only. Thereafter, the petitioners have filed suit for declaration and permanent injunction before the Civil Judge, Senior Division, Nagpur vide R.C.S.No.988/2014 and 1404/2014. The said suit was decreed on 11/02/2016. It is observed that plaintiffs along with defendants are mere encroachers over the Government land and Government has every right to evict them. The present petitioners have filed another Writ Petition No.547/2016 before this Court and the said writ petition was decided on 15/02/2016. In the said petition, it is observed that if there is no such order in respect of any of the premises, then answering respondents will be at liberty to remove such encroachment.
21. It is further submitted that petitioner No.1 had filed Special Civil Suit No.161/2013 before the Civil Judge, Senior Division, Nagpur for declaration of ownership of 1.76 hectares of land i.e. 17600 square meters of land. The action of the petitioners clearly demonstrates that there is increased area of encroachment from 1984 to 2013 in spite of status quo order granted by this Court in A.O.No.5/1989.
22. It is further submitted that petitioner No.1 along with one Gautam Dey had filed Reg. Civil Suit No.1027/2006. The petitioner ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 16 J-WP-95-18.odt No.1 has also filed another RCS No.1028/2006. Both the suits are decided on 28/11/2017 and 29/11/2017. In both the suits, the Civil Court has observed that petitioners are in possession over the property which belongs to the State Government.
23. The defendants submitted that they are strictly adhering the guidelines issued by the Civil Court and removed the encroachment on 30/12/2017 except those encroachments which are mentioned in the order dated 02/09/2014 of Tahsildar, Nagpur. They further submitted that the petitioners are encroachers over the Government land and therefore, these respondents have every right to remove the encroachment under the provisions of Maharashtra Land Revenue Code, 1966. Lastly, it is submitted that, petition be dismissed.
24. Respondent No.17 has filed affidavit on 06/02/2018 and submitted that in response to communication dated 29/12/2017 issued by the Tahsildar, Nagpur City requesting for providing the machinery required for demolition of unauthorized construction made on Kh.No.11/3 of Mouza, Pandharabodi on the land owned by the respondent - Nagpur University and had provided the same on 30/12/2017. It is further submitted that the Municipal Corporation only provided the men and machinery to carry out the demolition work as requested by the Tahsildar. This respondent has no other role to play in the whole matter.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
17 J-WP-95-18.odt
25. The petitioners have filed rejoinder on 13/02/2018 to the reply filed by respondent Nos.2, 3 and 4. It is submitted that the respondents have avoided to file para-wise reply to the writ petition as they have no answer to the averments made in the petition. It is submitted that the allegations made in their reply are false and lastly, it is submitted that the defence raised by the respondents be rejected and allow the writ petition.
26. We have heard Shri M. G. Bhangde, learned Senior Counsel with Shri S. N. Tapadia, learned counsel for petitioners, Ms.N.P. Mehta, learned Assistant Government Pleader for respondent Nos.1 to 3, Shri A. S. Kilor, learned counsel for respondent No.4 and Shri S. M. Puranik, learned counsel for respondent Nos.7 and 17.
27. Shri Bhangde, learned Senior counsel has vehemently submitted that the action of the respondents is highhanded and in spite of status quo order operating, they have demolished the structure of the petitioner on 30/12/2017. It is further submitted that the act of the respondents is in violation of the orders passed by the Civil Courts as well as this Court in various proceedings and therefore, they have committed contempts of the Civil Courts as well as this Court and they be punished according to law. The learned Senior counsel has pointed out various orders passed by the Civil Court as well as High Court during the course of arguments. It is further submitted that the land is allotted to Nagpur University and therefore, Government has no right to ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 18 J-WP-95-18.odt proceed further under Section 53 of the Maharashtra Land Revenue Code. He has further submitted that the suit filed by the Nagpur University for declaration and permanent injunction is dismissed in default and no efforts are made to restore the same. The petitioners are in settled possession for more than 100 years and therefore, their possession required to be protected. He has, therefore, submitted that petition filed by the petitioners be allowed, as prayed.
28. Shri S. Y. Deopujari, learned Government Pleader has submitted that the land is acquired in acquisition proceedings and therefore, vests in the Government under the Land Acquisition Act. The Government has every right to remove the encroachment under Section 53 of the Maharashtra Land Revenue Code. The petitioners have no right and title in the suit property and they are mere encroachers. He further submitted that petitioner No.1 has filed Special Civil Suit No.161/2013 for declaration and injunction. The suit is still pending. The petitioners have also claimed ownership on the basis of adverse possession. The land belongs to the State Government and possession is not handed over to the University. He also submitted that as per the order passed in A. O. No.5/1989, both the parties have filed joint pursis to maintain status quo. He also submitted that the notice issued by the Tahsaildar specifying the encroachment made by the respondents and removal of the same are on record. The Tahsildar has every right under Section 53 to remove the encroachment. The respondents have not ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 19 J-WP-95-18.odt breached the order of the Civil Courts while removing the encroachments. As per order of the Civil Court, the only encroachment is to be removed by following due process of law. Therefore, the respondents have not breached the orders of the Civil Court while removing the encroachment. Lastly, it is submitted that the petition be dismissed.
29. Shri Kilor, learned counsel for the respondent No.4 has submitted that the petitioners are encroachers on the Government land. The respondents have issued notices under Section 53 of the Maharashtra Land Revenue Code, 1966 and demolished some encroachment. The respondents have not violated the orders of Civil Court while removing the encroachment. The land is vested in the Government after acquisition. He further submitted that no objections were raised at the time of acquisition by these petitioners. They have no right and title over the suit property. The petitioners though claimed ownership but no evidence is adduced about the ownership over the property. The present writ petition is not maintainable as alternate remedies are available to them. The present writ petition is misconceived and therefore, be dismissed.
30. Considering the submissions of respective sides, we have perused various orders of the Civil Courts as well as this Court filed on record. It appears that Citizen Forum of Maharashtra has filed Writ Petition No.1668/2007 against the State of Maharashtra and ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 20 J-WP-95-18.odt others. In the said writ petition, this Court has passed orders on 15 th October, 2008 to the effect that if there is any encroachment on any portion of 44 acres of land, it shall be responsibility of the revenue authorities to take appropriate steps for removal of encroachment and rehabilitation of some slum dwellers as per the Government policy. In the said petition, the petitioner - Citizen Forum Maharashtra prayed for restoration of 70.09 acres of land to its original owner i.e. the respondent - University. The said petition was disposed of on 14/10/2009.
31. It further appears that the petitioner No.1 and others have also filed Writ Petition No.4795/2014 against the State of Maharashtra and others. The said petition was withdrawn on 04/12/2014 on the statement made by the learned senior counsel appearing on behalf of the petitioners that the petitioners would approach the Civil Court by withdrawing the writ petition. The ad- interim relief granted on 05/09/2014 is made continue for two weeks and Writ petition was disposed of as withdrawn. Writ Petition No.547/2016 was filed by petitioner No.1 Nathu Yadav and others against the State of Maharashtra and others. The said writ petition was disposed of on 15/02/2016. The petitioners in the said writ petition have contended that though the orders of injunction / status quo passed by the competent civil court are still operating, the authorities have removed construction. This Court has passed the order on 15/02/2016 ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 21 J-WP-95-18.odt to the effect that if there is order by Competent Civil Court, the same shall be respected by the authorities and by the State and if there is any injunction / status quo operating against the State, it shall not proceed further with removal of construction. However, it is made clear that if there is no such order in respect of any of the premises, the respondents will be at liberty to remove such construction.
32. Considering the above referred proceedings filed before this Court and order passed by this Court, it appears that the petitioners are again approaching to this Court for claiming the same reliefs, as claimed in the Writ Petition No.547/2016. The present petition thus, cannot be considered for similar reliefs. The petitioners have another remedy to approach to Civil Court for violation of order passed in earlier civil proceedings. The prayer of the petitioners that the respondents have committed Contempt of Court by violating the orders of the Court, cannot be considered under the extraordinary jurisdiction under Article 226 of the Constitution of India. The respondents are acting as per the directions given by the this Court in Writ Petition No.1668/2007 filed by the Citizen Forum Maharashtra. Moreover, Writ Petition No.4795/2014 filed by the petitioner No.1 and others was withdrawn on the ground that the petitioners will approach the Civil Court.
33. Considering the above proceedings and orders passed therein, we are of the considered view that the present writ petition ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 22 J-WP-95-18.odt filed by the petitioners is, therefore, liable to be dismissed.
34. It is the contention of the petitioners that in spite of orders of Civil Court, the respondent-authorities are violating the same and encroachments are removed on 30/12/2017. Sofaras these contention is concerned, the orders of the Civil Courts, if violated, it is for the petitioners to approach to the Competent Authority for disobedience of the injunction orders. The remedy is to file before the Competent Court as advised to them. This Court cannot entertain the grievance of the petitioners under extraordinary jurisdiction under Article 226 of the Constitution of India. Moreover, previously similar prayer is made by the petitioners and the writ petition was disposed of with directions.
35. Sofaras notices issued by the Tahsildar are concerned, the Government has every right under Section 53 of the Maharashtra Land Revenue Code, 1966 to remove the encroachment. It is not disputed that the land was acquired under acquisition proceedings in the year 1970. It is brought on record that no objections were raised by the petitioners in the said acquisition proceedings. Whatever the rights claimed by the petitioners in the suit property, the suits are filed by them and some suits are pending and some suits are disposed of. It is for the parties to proceed in the said suits, according to law. The remedies are available to file appeal against the said order and if the injunction order is passed on interim application or finally, after ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 23 J-WP-95-18.odt disposal of the suit, the remedies are also available to approach the Court for disobedience of the order or execution of the decree of the injunction passed in civil suits. The respondents have filed their affidavit in reply and denied that they have disobeyed the injunction order and their acts are highhanded while demolishing encroachment on 30/12/2017.
36. The learned Senior counsel for the petitioners has submitted that the petitioners are in settled possession and they cannot be dispossessed without recourse to the law. He relied upon ruling in the case of Rame Gowda (dead) by LRs Vrs. M. Varadappa Naidu (dead) by LRs and another, reported in (2004) 1 SCC 769. Since the petitioners have filed Regular Civil Suit and matters are pending before the Civil Courts. We, therefore, cannot consider whether their possession is settled or not and the same point is kept open for the parties to get decided the same in the Civil Court. The learned Senior counsel for the petitioners also relief upon the ruling in the case of State of U. P. and others Vrs. Maharaja Dharmander Prasad Singh etc., reported in AIR 1989 SCC 997.
In the above-referred ruling, the Hon'ble Apex Court has held that the possession can be resumed by the the Government only in the manner known and recognized by law, it cannot resume possession otherwise then in accordance with law. In the case at hand, the parties have filed various civil proceedings before the Civil Courts ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 24 J-WP-95-18.odt and some are pending and some are disposed of and therefore, the parties to raise these questions before the same Court.
37. The learned Government Pleader has submitted that the land is vested in the Government and therefore, Tahsildar has every right to remove the encroachment. The word "vesting" means having obtained an absolute indefensible rights. It refers and is used for transfer or conveyance. "Vesting" in the general sense means vesting in possession. However, vesting does not necessarily and always means possession but includes vesting of interest as well. It would be useful to refer the Judgment in the case of State of Utter Pradesh Vrs. Smt. Ram Sri and another, reported in AIR 1976 ALL 121.
In this matter, U. P. Zamindari Abolition and Land Reform Act enacted. Under this Act, some lands were vested to the Government. After that, the Government transferred this land to Gaon Sabha, and all the vesting right on the lands were also transferred to the Gaon Sabha by the Government. But only on condition that to control, supervision, management over that lands.
Court held that though there were transferred of lands by the Government to the Gaon Sabha, it does not mean there is transferred of right of ownership / title, thus the State Government is absolute owner of that land. And the lands were transferred to the Gaon Sabha on conditions, Goan Sabha is not become absolute owner of that land.
Considering the above referred law laid down, we are of the considered view that the land in question is vested with the State Government after acquisition and therefore, the Government has every ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 25 J-WP-95-18.odt right to remove the encroachment under Section 53 of the Maharashtra Land Revenue Code, 1966.
38. The learned Senior Counsel has relied upon ruling in the case of Balu Mahadeo Randhir Vrs. Nabilal Haji Habib Gadiwale and others, reported in 1997 (1) Mh.L.J. 302 and in the case of Deva Ram and another Vrs. Ishwar Chand and another, reported in (1995) 6 SCC 733. The learned Senior Counsel has submitted that no res judicata is made applicable in the case in hand. He pointed out that the above rulings, particularly Para 17 in Balu Mahadeo Randhir's case and para 31 in Deva Ram's case.
We have perused the above rulings and particularly above referred paras. However, we are of the view that since we are not considering the case of the petitioners under Article 226 of the Constitution of India and if there is any violation of any order of the Civil Court, they must approach to the Civil Court for the same. The above rulings are, thus not helpful to the petitioners.
39. The learned Senior Counsel for the petitioners has submitted that the interim orders passed by the trial Court are not obeyed by the authorities and they must obey the same. He, therefore, relied upon ruling in the case of Maharashtra State Textile Corporation Limited Vrs. Official Liquidator and others, reported in (1978) 1 SCC 490.
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::
26 J-WP-95-18.odt In the above ruling, it is held that when this Court passed interim order dated 28th September, 1973 and allowed the liquidation proceedings to continue it only meant that the proceedings should continue in accordance with law and if the law enjoined any condition the same must be complied with. We have already observed that if there is violation of any interim order or final order, the remedy is available to the petitioners to approach the Civil Court for disobedience and therefore, this ruling will not be helpful for them.
40. Shri Kilor, learned counsel for respondent No.4 has vehemently submitted that the petitioners have not come with clean hands and therefore, they are not entitled for relief under Article 226 of the Constitution of India. The learned counsel Shri Kilor also provided chart showing that they have filed number of suits before the Civil Courts and claim different area in possession. The petitioners themselves are not sure how much area is in their possession.
i) Special Civil Suit No.385/1995 (Regular Civil Suit No.977/2001) filed by Nathu (plaintiff No.8 and others) and claim possession admeasuring 10 acres of land in Khasra No.11.
ii) Special Civil Suit No.161/2013 filed by Nathu (plaintiff) in which he stated in 1954-1955 that Shri Raje Raghuji Bhonsale sold 63.2 acres of land to Shri Sirajjudin Nawab and others. The plaintiff has also stated that his grand-father was in possession of entire land i.e. 17.92 acres of land of Khasra No.11. Shri Sirajjudin ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 27 J-WP-95-18.odt Nawab did not ask for possession from grand-father of plaintiff.
iii) Reg. Civil Suit No.1027/2006 filed by Nathu (plaintiff) in which he stated that Narmadaprasad Yadao and Baliram entered into an agreement with Nawab Mohuddin Khan for 10 acres of land in Khasra No.11 for running Dairy and they were recorded as a "KUL" in the year 1954.
iv) Regular Civil Suit No.1404/2014 filed by Nathu Yadav and others claiming ownership and possession of part of Khasra No.11 shown in map legally occupying the property from last more than 100 years.
v) Special Civil Suit No.988/2014 filed by one Smt.Nalinibai w/o Narmadaprasad Yadav and 5 others. Nathu was shown as defendant in which it is mentioned that Shri Raje Raghuji Bhonsale given the entire land of Khasra No.11 admeasuring 17.92 acres of land to Khattu Magho Ahir, ancestor of plaintiffs and defendant No.1 in possession as a tenant. Nathu shown to be in possession of 0.6 HR of land.
41. Shri Kilor, learned counsel submitted that the petitioners have shown different area in possession in different suits and, therefore, they are not entitled for relief. He relied upon several rulings. However, we are not considering the case of the petitioners under Article 226 of the Constitution of India and therefore, the said rulings cannot be looked into. It appears that the plaintiff along with ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 28 J-WP-95-18.odt others have filed several suits before the Civil Courts and claim injunction showing different area. It is for the parties to raise the same contention before the Civil Courts to that effect.
42. Shri Deopujari, learned Government Pleader for the State has also relied upon the circular dated 9 th July, 1982 issued by the Collector, Nagpur. As per the said circular, the Collector, Nagpur has delegated the powers to Tahsildar in Nagpur District to be exercised within their respective jurisdiction under this office order issued from time to time as shown in the Annexure.
Since the delegation of powers are to the regular Tahsildars within their respective jurisdiction, these orders are equally applicable to the Naib Tahsildars of reorganized Talukas of the District to be exercised within their respective jurisdiction. The annexure is also annexed to the circular and as per the said circular, powers under Section 53 of the Maharashtra Land Revenue Code are delegated. If that is so, the submission put forth on behalf of the petitioners that the Tahsildar has no power under Section 53 of the Maharashtra Land Revenue Code, 1966 to remove the encroachment, cannot be accepted. The submission put forth on behalf of respondent-State that the Tahsildar is empowered to exercise the powers under Section 53 of the Code, will have to be accepted.
43. Learned counsel for the respondent No.4 has submitted that the petitioners are not approached to the Court with clean hands ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 29 J-WP-95-18.odt and therefore, they are not entitled for equitable reliefs. Since we are not considering the case of the petitioners under Article 226 of the Constitution of India and therefore, the said submission cannot be considered. It is for the respondents to raise the same grievance before Civil Court.
44. Shri Bhangde, learned senior counsel has submitted that this Court can punish for the contempt of the orders of the Civil Courts. He relied upon the ruling in the case of Ram Gopal Waghdhare Vrs. Sudhir Ram Waghdhare & ors., reported in 1988 SCC On Line Bombay 688 (18).
In the above ruling, the Hon'ble Apex Court has held that there is no any Judgment put-fitters on the High Court's power or in any way limit the powers of High Court to punish a person for breach of injunction order. No such affirmative proposition is laid down in any of these Judgments. Though there is no put-fitters on the High Court to consider the case of contempt of disobedience of orders of the Civil Courts but considering the facts and circumstances, we are of the considered view that the contempt proceeding cannot be entertain before this Court.
45. Shri Bhangde, learned senior counsel relied upon ruling in the case of Seema Arshad Zaheer and others Vrs. Municipal Corpn. of Greater Mumbai and others, reported in (2006) 5 SCC
282. ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 30 J-WP-95-18.odt In the above ruling, it is held that the discretion of the Court is exercised to grant temporary injunction only when the following requirements are made out by the plaintiff.
i) Existence of prima facie case.
ii) Balance of convenience and
iii) Irreparable loss.
In addition to temporary injunction being equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs' conduct is free from blame and he approaches the Court with clean hands. Here, in the case at hand, the petitioners are claiming relief of injunction under Article 226 of the Constitution of India and we have already observed that such relief cannot be granted in extraordinary jurisdiction. It is for the plaintiff to approach to the Civil Court for that purpose. The above ruling is not helpful to the petitioners.
46. Shri Bhangde, learned senior counsel also relied upon ruling in the case of Municipal Corporation of Delhi Vrs. Nirmal Sachdeva (Smt) and others, reported in (2001) 10 SCC 364.
The above ruling is also not helpful to the petitioners. The learned senior counsel has relied upon ruling in the case of Vijay Narayan Thatte and others Vrs. State of Maharashtra and others, reported in (2009) 9 SCC 92.
In the above ruling, the Hon'ble Apex Court has held ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 31 J-WP-95-18.odt that when there is conflict between the law and equity, it is the law which must prevail. As stated in the Latin maxim dura lex sed lex which means "the law is hard but it is the law". No one can dispute the said proposition. However, in the facts and circumstances of the case, the above ruling is not helpful to the petitioners.
47. In this case, even if the University did not act, the law does not prohibit exercise by the State of its absolute ownership and take back the land from University as also from the trespasser. When the encroachment on said land was required to be brought to notice of this Court in a PIL and the facts at hand show reluctance on part of the State or University to act diligently in the matter, the technical challenges without demonstrating any legal injury does not clothe the petitioners with any better right than a rank trespasser. The owner can always use its statutory powers and remove encroachment. Any illegality or irregularity committed while following the legal course does not enable the petitioners to improve even by a fraction, their status qua the public property.
48. When the petitioners plead a title in opening paragraph of the memo of writ petition but choose not to press it and rely upon their possession only or orders of trial court protecting it subject to eviction as per law, the orders of trial court cannot limit the statutory contents of power to evict and prohibit the State Government from legally dispossessing them from entire property, eviction from portion ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 ::: 32 J-WP-95-18.odt more than one stipulated in orders cannot be viewed as excessive dispossession. The absence of even semblance of any title in them cannot be lost site of.
49. After considering the submission of respective sides and after perusal of record of the case, we are not inclined to grant any relief to the petitioners under Article 226 of the Constitution of India. The petition is therefore, liable to be dismissed and accordingly, dismissed. Rule discharged with no order as to costs. It is needless to mention that interim relief, if any, granted in this petition, stands vacated.
JUDGE JUDGE At this stage, learned counsel for petitioners seeks continuation of interim order for a further period of six weeks. The request is being opposed by learned Government Pleader as also by Shri Kilor, learned counsel for respondent No.4.
Taking overall view of the matter, we are not inclined to continue the interim order. Request is, therefore, rejected.
JUDGE JUDGE
Choulwar
::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:54:44 :::