Bombay High Court
Sangli Miraj Kupwad Cities Municipal vs Shri Kisan Bhau Satwekar on 13 August, 2014
Author: A.S. Oka
Bench: A.S. Oka, A.S.Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4264 OF 2005
with
SECOND APPEAL NO.296 OF 2002
W.P NO. 4264 OF 2005
Sangli Miraj Kupwad Cities Municipal )
Corporation. ) .. Petitioner
Vs
1. Shri Kisan Bhau Satwekar,
ig )
2. Smt. Shalan Datta Salunkhe, )
3. Deputy Collector and Competent )
Authority, and )
4. The State of Maharashtra ) .. Respondents
-
Shri N.V. Walawalkar, Senior Advocate along with Shri G.H. Keluskar for
the Petitioner.
Shri A.V. Anturkar, Senior Advocate i/by Shri Tejpal S. Ingale for
Respondent No.1.
Shri V.S. Gokhale, AGP for the Respondent No.4-State.
--
SA No.296 OF 2002
Miraj Municipal Council, Miraj. ) .. Appellant
Vs
Kisan Bhau Satwekar and Another. ) .. Respondents
-
Shri N.V. Walawalkar, Senior Advocate along with Shri G.H. Keluskar for
the Appellant.
Shri A.V. Anturkar, Senior Advocate i/by Shri Tejpal S. Ingale for
Respondent No.1.
--
CORAM : A.S. OKA & A.S.CHANDURKAR, JJ
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DATE ON WHICH SUBMISSIONS WERE HEARD : 20TH JUNE 2014
DATE ON WHICH JUDGMENT IS PRONOUNCED: 13TH AUGUST 2014
JUDGMENT ( PER A.S. OKA, J )
1. The Petitioner in the Writ Petition is the Municipal Corporation of the Cities of Sangli, Miraj and Kupwad (in short "the said Corporation"). The Petitioner is the successor of the erstwhile Miraj Municipal Council. The first Respondent in the Petition is one Kisan Bhau Satwekar ( for short "the said Kisan"). The second Respondent in the Petition is Smt. Shalan Datta Salunkhe (for short "the said Shalan"). The third Respondent in the Petition is the Competent Authority of the Sangli Urban Agglomeration under the provisions of the Urban land (Ceiling and Regulation) Act, 1976 ( for short "the ULC Act"). One Bhau Babu Satwekar ( father of the said Kisan) was shown as the owner of the land bearing Survey No.9/2, 3, 4, 5, 4377 and 4380 admeasuring 27498.08 sq meters. Out of the said land held by the said Bhau, the land admeasuring 25498.08 has been declared as an excess land. The contention of the said Corporation is that an order under Sub-section (3) of Section 10 of the ULC Act was issued on 25 th March 1979 and a notice of possession under Sub-section (5) of Section 10 of the ULC Act was issued on 8 th November 1979. The case of the said Corporation is that the said excess land was allotted to the erstwhile ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 3 wp-4264.05withsa-296.02 Miraj Municipal Council for its use i.e. for a school, playground etc. It is alleged that on 25th February 1980, the possession of the excess land was taken over in accordance with Sub-section (5) of Section 10 of the ULC Act and the erstwhile Municipal Council was placed in possession of area of 11,740.00 sq meters thereof. It is stated that the name of the erstwhile Municipal Council of Miraj was mutated in Kabjedar Column in 7/12 extract.
2. The said Kisan instituted a Civil Suit being Regular Civil Suit No.67 of 1982 in the Court of Civil Judge, Junior Division at Miraj.
The suit was filed on 15th March 1982 to which the erstwhile Municipal Council of Miraj and the said Bhau were the Defendants. It is contended therein that the said land which was declared as the excess land was a joint family property of the said Kisan and Bhau. It is contended that the said land shown in the name of the erstwhile Miraj Municipal Council was neither sold nor transferred by the said Bhau to the Municipal Corporation. It is contended that the said Kisan who is the Plaintiff in the said suit along with his two brothers, mother and the father Bhau were in joint possession of the said land. In the said suit filed by Kisan, the only prayer was for perpetual injunction restraining the erstwhile Municipal Council of Miraj and the said Bhau from interfering with his possession over the said land.
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3. The said Bhau filed a Written Statement in the suit supporting the Plaintiff Kisan. He contended in the Written Statement that he had never placed the erstwhile Municipal Council of Miraj in the possession of the said excess land and he had never transferred the said land to the Municipal Council. He admitted the claim of his son Kisan.
The erstwhile Municipal Council of Miraj filed its Written Statement pointing out that the said land was of the ownership of the said Municipal Council in as much as under the order dated 18 th January 1980 passed by the Competent Authority under the ULC Act, the said land has been allotted to the Municipal Council and that the Municipal Council has been put in possession on 25 th February 1980. The Trial Court decreed the suit and granted perpetual injunction. The District Court, Sangli, in an Appeal preferred by the said Municipal Council confirmed the judgment and decree of the Trial Court. The Second Appeal No.296 of 2002 was preferred by the said Municipal Corporation which is the successor of the erstwhile Municipal Council of Miraj.
4. It appears that on 7th August 1995, the said Kisan made a Revision Application to the State Government by invoking the revisional powers of the State Government under Section 34 of the ULC Act. A grievance was made therein about an order passed by the Competent Authority declaring the said land as an excess land. The Secretary of ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 5 wp-4264.05withsa-296.02 Housing and Special Assistant Department by an order dated 25 th November 1997 dismissed the said Revision Application under Section 34 of the ULC Act. A Writ Petition No.2698 of 1998 was filed by the said Kisan for challenging the order dated 25 th November 1997 passed by the State Government. By an order dated 27 th April 2000, the said Kisan was permitted to withdraw the said Writ Petition. Thereafter, an Application was made by the said Kisan before the State Government for review/revision of the order dated 25th November 1997. By an order dated 14th May 2003, the Hon'ble Minister of the State for the Urban Development Department proceeded to set aside the order dated 25th November 1997 and remanded the matter to the Competent Authority for giving an effect to the shares of the said Kisan, his brothers and sister. The Hon'ble Minister directed the Competent Authority to pass a fresh order under Sub-section (4) of Section 8 of the ULC Act. It was further directed that after passing such fresh order, the allotment made to the said Municipal Council to the extent of the land allowed to be retained by the said Kisan shall be cancelled. Even before the said order could be implemented, on an Application made by the said Kisan, a further order dated 6th July 2004 was passed by the Hon'ble Minister of State. By the said order, the allotment of the land made to the erstwhile Municipal Council was set aside. It was directed that the Competent Authority while passing a fresh order under Sub-
Section (4) of Section 8 shall treat the date of commencement as 26 th ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 6 wp-4264.05withsa-296.02 April 1979. Writ Petition No.4264 of 2005 has been filed by the said Corporation for challenging the said order dated 6 th July 2004 (the impugned order). On 7th July 2005, this Court passed an ad-interim order in the Writ Petition directing that the impugned order shall not be acted upon till further orders. The Rule was issued on 19 th January 2006 and by way of interim relief, this Court stayed the operation of the impugned order dated 6th July 2004.
5. As far as the Second Appeal is concerned, the same was admitted on 11th September 2002 by framing the following three substantial questions of law:-
"(i) Whether suit of the plaintiff is maintainable for want of notice under section 304 of the Maharashtra Municipalties Act, 1965?
(ii) Whether the plaintiff can claim possession and is alleged to have been continued in possession despite the fact that the compensation of the said land declared as surplus under the Urban Land Ceiling Act was received by the deceased father of the plaintiff under section 11 of the Urban Land Ceiling Act and once the compensation is paid, the rights of the land-holders stand extinguished and, therefore, the Courts should have taken into consideration this aspect of the matter and dismissed the suit ?
(iii) Whether the plaintiff can claim possession of the suit property as alleged by him despite the provisions of section 42 of the Urban Land Ceiling Act, which was the over-riding effect on all the existing laws?::: Downloaded on - 13/08/2014 23:49:51 :::
ash 7 wp-4264.05withsa-296.02 By order of the Hon'ble the Chief Justice dated 23 rd January 2014 the Second appeal was ordered to be heard alongwith the Writ Petition.
6. We must note here that after the Second Appeal was taken up for hearing, on 20th June 2014, this Court exercised the powers under the proviso to Sub-section (5) of Section 100 of the Code of Civil Procedure, 1908 ( for short "the said Code"), and framed the following two additional substantial questions of law.
(i) Whether the Courts below committed an error by granting discretionary and equitable relief of perpetual injunction under the Specific Reliefs Act, 1963 though the Plaintiff being fully aware of the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 had suppressed the said proceedings while filing the suit ?
(ii) Whether the Courts below ought to have drawn an adverse inference against the Plaintiff on account of failure to examine the second Defendant as a witness inasmuch as only the second Defendant could have thrown light on ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 8 wp-4264.05withsa-296.02 the controversy whether the possession was taken over under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 ?
7. We must also note here that after framing the substantial questions of law, this Court expressed the view that the learned senior counsel representing the said Kisan should be granted time to address the Court on the said additional substantial questions of law. The learned senior counsel representing the said Kisan fairly stated that he does not desire to seek any time to address the Court on the said additional substantial questions of law.
SUBMISSIONS OF THE PARTIES
8. The learned senior counsel appearing for the Municipal Corporation invited our attention to the possession panchanama/possession receipt dated 25th February 1980. From the said possession receipt, he pointed out that the possession was taken over of the excess land in accordance with the provisions of Sub-section (5) of Section 10 of the ULC Act from the said Bhau. He submitted that under the same possession receipt, the possession of the land allotted to the erstwhile Miraj Municipal Council was handed over to the Chief Officer of the Municipal Council.
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9. He pointed out that the order under Sub-section (4) of Section 8 of the ULC Act was challenged by the said Kisan by filing a Revision Application under Section 34 of the ULC Act and the said Revision Application was dismissed by an order dated 25 th November 1997. He invited our attention to the Writ Petition No.2698 of 1998 filed by the said Kisan. He produced a copy of the said Writ Petition.
He pointed out that by the said Writ Petition, the order dated 25 th November 1997 of dismissal of the Revision Application preferred by the said Kisan was challenged. He pointed out that the Rule was issued in the said Writ Petition and the order dated 25 th November 1997 passed on the Revision Application was stayed. He pointed out that the said Petition was unconditionally withdrawn on 27 th April 2000. He pointed out that the said Kisan applied for review of the said order dated 25th November 1997. He invited our attention to the averments made in Writ Petition No.4418 of 2000 filed by the said Kisan in which the only prayer made was that a direction to be issued to the State Government to decide the Review Petition within the time fixed by this Court. Inviting our attention to the order dated 28 th August 2000 passed by this Court on the said Writ Petition, he pointed out that the said Writ Petition was dismissed but a liberty was granted to the said Kisan to make an Application to the State Government for fixing an early date of hearing. The learned Senior Counsel invited our attention to the order dated 14th May 2003 and pointed out that the said order of ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 10 wp-4264.05withsa-296.02 withdrawal was misinterpreted by the Hon'ble Minister as if it was a direction issued to review the order dated 25 th November 1997. He urged that the Review Petition itself was not maintainable and the said order is based only on the misreading of the order by this Court. He submitted that after the order dated 25 th November 1997 was passed, the Application for review was made by the said Kisan on 30 th March 2000. He pointed out that at highest, the order dated 25 th November 1997 could have been reviewed and the Revision Application could have been fixed for re-hearing. His submission is that instead of keeping the Revision Application for re-hearing, the Revision Application was allowed by the same order by which the Review Petition was allowed and a fresh inquiry under Sub-section (4) of Section 8 of the ULC Act was ordered. The learned senior counsel pointed out that on 6th July 2004, the impugned order was passed by the same Hon'ble Minister of the State for Urban Development Department by observing that the Constituted Attorney of the said Kisan raised a new contention that as the earlier order under Sub-section (4) of Section 8 of the ULC Act was set aside, the action taken under Sub-
sections (3) and (5) of Section 10 of the ULC Act stands cancelled. The Hon'ble Minister proceeded to set aside the allotment of the land made to the Municipal Corporation. He urged that the said order is illegal and without jurisdiction. He pointed out that by the same order, a direction was issued that in relation to the land which will be declared ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 11 wp-4264.05withsa-296.02 as the excess land, a scheme under Section 20 of the ULC Act shall be sanctioned.
10. He invited our attention to the findings recorded in the impugned judgments in the Second Appeal. He urged that the possession was taken over on 25 th February 1980 and a suit for injunction was filed by the said Kisan on 15 th March 1982 by suppressing the possession receipt. He pointed out that the said Bhau, who was a party to the order passed under Sub-section (4) of Section 8 of the ULC Act, did not disclose in his Written Statement the said order as well as the fact that under the possession panchanama/possession receipt, the possession of the excess land was already taken over. He invited our attention to the fact that though the said Bhau was the second Defendant in the suit filed by the said Kisan and though the said Bhau supported Kisan, he was not examined as a witness. He, therefore, urged that an adverse inference ought to have been drawn against the said Kisan as only the said Bhau could have thrown light on the issue whether the possession of the excess land was taken over. He submitted that the said Kisan was aware of the orders passed under the ULC Act. He urged that the said Kisan suppressed the orders while filing the suit. Inviting our attention to the evidence on record and especially the evidence of the Plaintiff Kisan, he urged that the conduct of the said Kisan was such that he was disentitled to an equitable relief ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 12 wp-4264.05withsa-296.02 of injunction. He pointed out that in the cross-examination, the said Kisan admitted that at the time of institution of a suit, he had taken a copy of 7/12 extract in which the name of the erstwhile Miraj Municipal Council was appearing. He pointed out that the said Kisan admitted that he did not inquire as to how the name of the Municipal Corporation appeared in the 7/12 extract and that the proceedings under the ULC Act in respect of the said lands were going on. He urged that considering the conduct of the said Kisan, the Trial Court ought to have denied the discretionary and equitable relief of injunction to the said Kisan. He urged that on the date of institution of the suit, the said Kisan was not in possession of the suit land and, therefore, the suit for simplicitor injunction was not maintainable.
11. The learned senior counsel representing the said Kisan invited our attention to the provisions of Sub-section (4) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ( for short "the Repeal Act"). The said Repeal Act came into force in the State of Maharashtra on 29th November 2007. Relying upon Section 4 of the Repeal Act, he submitted that on coming into force of the Repeal Act, all the proceedings relating to any order made or purported to be made under the ULC Act pending before the commencement of the Repeal Act before any Court, Tribunal or other Authority shall abate. He, therefore, urged that even the proceedings of the Writ Petition No.4264 ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 13 wp-4264.05withsa-296.02 of 2005 filed by the Municipal Corporation stood abated on 29 th November 2007 when the said Repeal Act came into force in the State of Maharashtra. He urged that this aspect was not noticed by a Division Bench of this Court in the case of Voltas Limited v. the Additional Collector and the Competent Authority, Thane1. He urged that only the proceedings in relation to Sections 11, 12, 13 and 14 of the ULC Act will not abate. He, therefore, urged that the Writ Petition was not maintainable as the same stands abated in view of Section 4 of the Repeal Act. He invited our attention to the decision of the Apex Court in the case of State of Uttar Pradesh v. Hari Ram2. He relied upon Paragraphs 34 to 37 of the said decision. He pointed out that a notice under Sub-section (5) of Section 10 of the ULC Act was allegedly issued on 18th January 1980. He pointed out that the possession receipt/panchanama does not record that the said Bhau whose name was appearing in the Revenue Record in relation to the said land was present on 28th February 1980 when the possession panchanama was purportedly drawn. He submitted that there is nothing on record to show that the notice of 30 days was served to the said Bhau under Sub-
section (5) of Section 10 of the ULC Act and that he refused or failed to comply with the order made under Sub-section (5) of Section 10 of the ULC Act. He submitted that only if the said Bhau had failed to comply with the order under Sub-section (5) of Section 10 of the ULC Act, then 1 2008(5) ALLMR 537.
2 (2013)4 SCC 280
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the forceful possession could be taken under Sub-section (6) of Section 10 thereof. He submitted that apart from the fact that the possession was infact never taken over, the alleged action of taking over possession is not in accordance with Sub-section (5) of Section 10 of the ULC Act which is held to be mandatory by the aforesaid decision. He submitted that in any event as the possession of the excess land was not taken over under Sub-section (5) of Section 10 of the ULC Act, in view of Section 3 of the ULC Act read with Section 4 of the Repeal Act, the proceedings under the ULC Act in relation to the land held by the said Bhau and Kisan shall stand abated and, therefore, there cannot be any vesting of the excess land, either in the erstwhile Miraj Municipal Council or the said Municipal Corporation. He, therefore, urged that in any event, the Writ Petition must fail.
12. By inviting our attention to the pleadings in the suit filed by the said Kisan and in particular the Written Statement of the erstwhile Municipal Council, he urged that the issue of suppression of material facts was not at all urged in the Written Statement. He pointed out that a panch witness to the alleged possession panchanama, Shri Shamu Shankar Nalawade deposed that before obtaining his signature on the possession panchanama, the contents were not explained to him. He denied in the examination-in-chief itself that he was also informed about the land in respect of which the said document ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 15 wp-4264.05withsa-296.02 was prepared. He, therefore, submitted that the so called possession panchanama cannot be relied upon. Inviting our attention to the evidence of Annasaheb Shripati Chavan, an Officer of the Municipal Council of Miraj, who admitted that in the possession panchanama, it is not stated that the possession was handed over either by the said Kisan or Bhau to the State Government. He, therefore, submitted that going by the evidence of the witnesses examined by the Municipal Corporation itself, the version that the possession was taken over on 25th February 1980 becomes very doubtful. He urged that as the Municipal Corporation could not establish that the possession was taken over, the Courts below have granted relief of perpetual injunction which cannot be interfered with this Second Appeal. He urged that none of the substantial questions of law as pleaded by the Municipal Corporation arise. He pointed out that there is a concurrent finding of fact that the said Kisan established his possession over the suit land on the date of suit. He urged that the said finding cannot be disturbed in Second Appeal.
13. The learned AGP supported the orders impugned in the Writ Petition. The learned senior counsel representing the Petitioner pointed out that the contents of the possession panchanama have not been denied by the said Bhau and moreover, the contents of the panchanama show that the said Bhau was very much present and it was ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 16 wp-4264.05withsa-296.02 agreed between Bhau and the Municipal Corporation that the standing crops on the land should be retained and taken by the said Bhau. He urged that in any event, the said Bhau has not been examined in the suit. He stated that the possession panchanama which is not challenged shows that it was the said Bhau who had handed over the possession of the excess land.
CONSIDERATION OF SUBMISSIONS IN SECOND APPEAL
14. Firstly, we propose to deal with the merits of the Second Appeal. As stated earlier, the suit filed by Kisan was only for perpetual injunction. In the said suit, there is not even a reference to the proceedings under the ULC Act. The allegation in the Plaint is that the second Defendant Bhau has entered into "some transaction" with the erstwhile Municipal Council of Miraj though there was no legal necessity. In the year 1979, there was an order under Sub-section (4) of Section 8 of the ULC Act declaring substantial holding of Bhau as surplus land. A notice under Sub-section (5) of Section 10 of the ULC Act was issued on 18th January 1980. The date of possession receipt of excess land is 25th February 1980. The suit was filed on 15 th March 1982. The address of Kisan and Bhau in the cause title of the suit is the same. The said Bhau supported his son Kisan. In the Written Statement, he merely stated that he has not delivered the possession of the said land to the Municipal Council of Miraj and he has never ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 17 wp-4264.05withsa-296.02 executed any possession receipt. In the Written Statement filed on 7 th April 1982, there was absolutely no reference to the order under Sub-
section (4) of Section 8 of the ULC Act. It will be necessary to make a reference to the deposition of Kisan in the suit. In the examination-in-
chief, there is a specific statement made by Kisan that the Municipal Council started erecting the compound wall on the suit land though the Municipal Council was not concerned with the suit land. He admitted that the land in question was purchased in the name of Bhau, his father.
He has further stated that as the Municipal Council started digging the pits for construction of a compound wall, a suit is filed. In the cross-
examination, he admitted that he obtained 7/12 extract at the time of institution of the suit when he noticed the name of the Municipal Council in the Kabjedar column. He specifically admitted that "it is true that the proceeding under Ceiling Act for this land was going on. I do not know whether the land was acquired by the Government as the excess land". This admission shows that the Plaintiff Kisan was aware about the pendency of the proceedings Under the ULC Act in relation to the said land and he was not sure whether the said land was acquired by the Government as an excess land. Thus, even assuming that Kisan was not aware of the order under Sub-section (4) of Section 8 of the ULC Act and the subsequent orders under Sub-sections (3) and (5) of Section 10 of the ULC Act before institution of the suit, he was aware of the pendency of the proceedings under the ULC Act. He has not ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 18 wp-4264.05withsa-296.02 disclosed the fact of the pendency of the said proceedings in the Plaint.
He was residing with his father at the same address. Therefore, he could have always made inquiries with his father about the nature of the proceedings under the ULC Act. While filing the suit for injunction, Kisan suppressed the very material fact about the pendency of the proceedings under the ULC Act. He did not make inquiry as to how the name of the Municipal Council was entered int the 7/12 extract/revenue record in relation to the excess land. Kisan did not make any attempt to examine Bhau who was the second Defendant in the suit and who supported the said Kisan. According to the case made out in the Plaint, Bhau had entered into "some transaction" with the Municipal Council. In the Written Statement filed by the Municipal Council, a specific reliance was placed on the order dated 18 th January 1980 passed by the Competent Authority of allotment of the said excess land to the Municipal Council. A specific reliance has been placed on the possession panchanama dated 25th February 1980 in the said Written Statement. Therefore, the second Defendant Bhau was a very important witness who had supported the Plaintiff Kisan. The examination of Bhau could have thrown light on the aspect of possession. Even assuming that the burden to prove legality of possession receipt was on the Municipal Council, Bhau was a vital witness to throw light on the aspect of the possession. Therefore, the learned senior counsel representing the Municipal Corporation is right ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 19 wp-4264.05withsa-296.02 in contending that an adverse inference ought to have been drawn against the Plaintiff Kisan for not examining this vital witness.
15. Before dealing with the oral evidence of other witnesses, it will be necessary to make a further reference to the contents of the possession receipt/panchanama. The possession receipt has been admitted in the evidence of the witness Annasaheb Shripati Chavan examined by the Municipal Corporation and the same has been marked as Exhibit-32. The possession receipt/panchanama specifically records that Bhau was present at that time. The Chief Officer of the Municipal Council was also present. In the said possession panchanama which is drawn by the Tahsildar, Miraj, it is recorded that all of them moved around the said land and inspected the same. It records that there was a standing crop of sugarcane, etc. It records that by consent of Bhau and the Chief Officer, it was agreed that the standing crops shall be taken by the said Bhau. It also records the cost which was incurred on the cultivation. It records that Bhau/land owner has contended that he has spent a sum of Rs.21,000/- on cultivation. It is further recorded that without giving any amount to the owner, the Tahsildar took possession of the said land from the owner and handed over the same to the Chief Officer. It further records that the owner has agreed to remove pipeline installed on the land as well as the houses with mangalore tiles thereon. A specific agreement recorded was that the ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 20 wp-4264.05withsa-296.02 owner has agreed to remove the same. It records that a Surveyor was present to show the boundaries of the excess land. Taking the contents of the possession panchanama as it is, it not only records the presence of Bhau but also statements made by Bhau and what was agreed between Bhau and Municipal Council. Thus, it shows that possession of the excess land was taken in presence of and with the consent of Bhau and that in his presence, the area allotted to the Municipal Council was placed in possession of the Municipal Council.
Considering the contents of the panchanama, examination of Bhau was of vital importance for the decision of the suit.
16. A capital was sought to be made by the learned senior counsel representing Kisan on the basis of the admissions given by the witness Shamu Shankar Nalawade who stated that his signature on the possession panchanama was obtained without explaining the contents thereof to him. He stated that while he was going to his field, he was called by the Municipal Officers and he was asked to sign the possession panchanama which was already drawn. However, the Municipal Council examined one Annasaheb Chavan, its employee who proved the possession panchanama in his evidence. He also produced a notice of delivery of possession under Sub-section (5) of Section 10 of the ULC Act which is dated 18th January 1980 which was admitted in evidence.
He stated in the cross-examination that it is nowhere mentioned in the ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 21 wp-4264.05withsa-296.02 possession panchanama that the possession was handed over either by Kisan or Bhau to the Government. We have already referred to the contents of the possession receipt/panchanama which clearly show that Bhau was present at the time of taking over the possession and that the possession was taken over by the Tahsildar from the said Bhau. Apart from the said witness, one Shri Ganesh Damodar Kulkarni, a Talathi was examined. He specifically stated that on 25 th February 1980, he had gone to the spot and that he had drawn the possession panchanama when the land owner along with the Tahsildar, Circle Inspector, Chief Officer and two Pancha witnesses were present. He admitted the signatures on the possession panchanama of the Panch witnesses, the Tahsildar, the Chief Officer, Circle Inspector, the maintenance Surveyor.
He also admitted his own signature. He stated that the possession of the land was taken over by the Tahsildar which was handed over to the Municipal Council. He denied the correctness of the suggestion that the panchanama was prepared at Chavdi and not on the spot.
17. Thus, on one hand, the possession panchanama dated 25 th February 1980 was duly proved and on the other hand, the said Bhau was not examined as a witness. Only he could have disputed the contents of the possession panchanama. Moreover, these is no cross-
examination made of the witness Annasaheb Chavan who proved the possession receipt/panchanama at Exhibit-32 on the contents thereof.
::: Downloaded on - 13/08/2014 23:49:51 :::ash 22 wp-4264.05withsa-296.02 The Courts below and in particular the learned District Judge has held that the burden was on the Municipal Council to show that Bhau handed over the possession to the Chief Officer. The Appellate Court was impressed by the fact that apart from the possession panchanama, there was no other evidence to prove the possession. The Appellate Court observed that there is no question about the proceedings under the ULC Act, but there is a question of about the possession of the suit property. The learned Appellate Court misread the evidence of Annasaheb Chavan and recorded that he had no personal knowledge about the possession panchanama. While relying upon the evidence of Shamu Shankar Nalawade, the learned Judge has disbelieved the case that the possession was taken over. The learned Judge was impressed by the fact that Bhau had not signed the possession receipt/panchanama at Exhibit-32. The learned Judge, however, has not referred to the contents thereof which record the present and consent of Bhau. The learned Judge has ignored the vital fact that Bhau was not examined as a witness by the Plaintiff Kisan. The learned Trial Judge observed that at the most, it can be said that a symbolic possession has been taken over as the possession receipt records that the structures thereon were retained.
18. We must note here that the cause of action pleaded in the suit is that the Municipal Council was engaged in digging the pits and ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 23 wp-4264.05withsa-296.02 had started construction of fencing on the said land. The effect of this averment along with the contents of the possession receipt/panchanama at Exhibit -32 and the failure of Bhau to step into the witness box has not been considered by the learned Judges of the Courts below. Moreover, the effect of suppressing the material fact of the pendency of proceeding under the ULC Act by the Plaintiff Kisan is not even considered by the Courts below. It is well settled that the relief of perpetual injunction is always a discretionary relief and equitable relief. The Courts below could not have granted discretionary relief in favour of a Plaintiff who had knowledge of the proceedings under the ULC Act and who had suppressed the same in the said suit.
The discretionary relief could not have been granted as the Plaintiff withheld important evidence of his father Bhau. Therefore, the impugned decrees will have to be interfered with and set aside. The legality and validity of the possession receipt/panchanama at Exhibit
-32 will have to be upheld.
ISSUE OF MAINTAINABILITY OF WRIT PETITION:
19. Now we turn to the merits of the Writ Petition. The first submission of the learned senior counsel appearing for Kisan is that in view of Section 4 of the Repeal Act, the proceedings of the Writ Petition being the proceedings relating to an order made under the ULC Act ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 24 wp-4264.05withsa-296.02 stand abated. Therefore, it will be necessary to make a reference to Sections 3 and 4 of the Repeal Act which read thus:
"3. Saving.-- (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub- section (1) of Section 20.
(2) Where-
(a) any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
4. Abatement of legal proceedings.-- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 25 wp-4264.05withsa-296.02 the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."
20. In view of Clause (a) of Sub-section (1) of Section 3 of the Repeal Act, if there is a vesting of any vacant land under Sub-section (3) of Section 10 of the ULC Act and if the possession thereof is taken over by the State Government in accordance with the ULC Act, the same shall not be affected by the Repeal Act. Thus, notwithstanding the repeal, the action of taking over possession of the vacant land vesting in the State Government remains unaffected. In the present case, the finding which we have recorded in the Second Appeal is that the possession of the excess land was taken over under Sub-section (5) of Section 10 of the ULC Act. As stated earlier, Bhau did not step into the witness box to state that the service of notice under Sub-section (5) of Section 10 of the ULC Act was not made. The fact that the possession panchanama shows that he was present at the time of taking over possession indicates that he was served with the said notice dated 18 th January 1980. Thus, there is a compliance with Sub-section (5) of Section 10 of the ULC Act. The possession panchanama at Exhibit-32 records the presence of Bhau and the consent of Bhau who was the holder. As Bhau neither refused nor failed to comply with the order under Sub-section (5) of Section 10 of the ULC Act, there was no occasion for invoking Sub-section (6) and, therefore, the submission made by the learned senior counsel representing the said Kisan on the ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 26 wp-4264.05withsa-296.02 basis of the decision of the Apex Court in the case of Hari Ram will not help Kisan.
21. As far as Section 4 of the Repeal Act is concerned, it refers to an abatement of the proceedings pending in relation to the orders passed under the ULC Act. It provides that to the proceedings pending before any Court, Tribunal or any Authority shall abate on the Repeal Act coming into force. The question is whether the jurisdiction of this Court under Article 226 of the Constitution of India is affected by Section 4 of the Repeal Act. The jurisdiction to issue prerogative writs has been conferred on the High Court by the Constitution of India. The legislature by enacting a statute cannot take away the jurisdiction of High Courts which is conferred by the Constitution of India. On this aspect, a useful reference will have to be made to a decision in the case of Union of India v. A.V. Narasimhalu 3 and in particular what is held in Paragraph 10 of the said decision. The said paragraph reads thus:
"10. But the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi judicial tribunals. The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the civil court or by clear implication does not affect the jurisdiction of the High Court to issue high prerogative writs."
(Underline supplied) 3 1969(2) SCC 658 ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 27 wp-4264.05withsa-296.02
22. In the case of In re The Kerala Education Bill 1957, the Constitution Bench of the Apex Court dealt with the scope of jurisdiction under Article 226 of the Constitution of India. In Paragraph 9, the Apex Court was dealing with the Clause 33 in the Kerala Education Bill which reads thus:
"33. Courts not to grant injunction - Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no Court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act."
23. Clause 33 purported to over-ride the provisions of the said Code and provided that no Court shall grant any temporary injunction or any interim order restraining any proceedings which is being or about to be taken under the Act. The issue before the Apex Court was whether Clause 33 offends the Article 226 of the Constitution of India.
The question was answered in negative by the Apex Court. The Apex Court in Paragraph 35 while referring to Clause 33 held that :-
".....That clause, which has hereinbefore been set out in full, provides that notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force no Court shall grant any temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under the provisions of the Bill when it becomes an Act. Article 226 of the Constitution confers extensive jurisdiction and power on the High Courts in the States. This jurisdiction ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 28 wp-4264.05withsa-296.02 and power extend throughout the territories in relation to which the High Court exercises jurisdiction. It can issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs of the nature mentioned therein for the enforcement of the fundamental rights or for any other purposes. No enactment of a State Legislature can, as long as that article stands, take away or abridge the jurisdiction and power conferred on the High Court by that article."
Thereafter, in the same Paragraph, the Apex Court observed thus:
"Learned counsel for the State of Kerala submits that cl. 33 must be read subject to Arts.226 and 32 of the Constitution. He relies on the well known principle of construction that if a provision is in a statute is capable of two interpretations then that interpretation should be adopted which will make the provision valid rather than the one which will make it invalid. He relies on the words "other law for the time being in force" as positively indicating that the clause has not the Constitution in contemplation, for it will be inapt to speak of the Constitution as a "law for the time being in force." He relies on the meaning of the word "Law" appearing in Arts.2, 4, 32(3) and 367(1) of the Constitution where it must mean law enacted by a legislature. He also relies on the definition of "Indian Law" in S.3(29) of the General Clauses Act and submits that the work "Law" in cl.33 must mean a law of the same kind as the Civil Procedure Code of 1908, that is to say, a law made by an appropriate Legislature in exercise of its legislative function and cannot refer to the Constitution. We find ourselves in agreement with this contention of learned counsel for the State of Kerala. We are not aware of any difficulty- and none has been shown to us - in construing cl.33 as a provision subject to the over- riding provisions of Art. 226 of the Constitution and our answer to question No.4 must be in the negative."
( Underlines supplied ) ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 29 wp-4264.05withsa-296.02
24. Thus, the law is that the exclusion of jurisdiction of ordinary Courts under a statute does not exclude jurisdiction of the High Court to issue prerogative writs under Article 226 of the Constitution of India. The jurisdiction under Article 226 of the Constitution of India can be taken away only by way of an amendment to the Constitution of India. In the case of In Re Kerala Education Bill 1957, the Apex Court held that the law made by an appropriate legislature in exercise of its legislative function cannot refer to the Constitution in the exclusion clause which ousts jurisdiction of ordinary Courts. The law seems to be that no provision of a statute can over-ride the provisions of Article 226 of the Constitution of India. Therefore, the contention that the proceedings of the Writ Petition abate by virtue of Section 4 of the Repeal Act deserves to be completely rejected.
CONSIDERATION OF MERITS OF THE PETITION
25. Therefore, we now turn to the merits of the Writ Petition.
As far as the possession is concerned, we have already recorded a finding on the issue of validity of possession panchanama dated 25 th February 1980 and we have held that the possession was taken over in accordance with Sub-section (5) of Section 10 of the ULC Act on 25 th February 1980.
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26. The said Bhau purported to file a Revision Application under Section 34 of the ULC Act before the State Government for challenging the order dated 28 th August 1978 passed Under Sub-section (4) of Section 8 of the ULC Act. By the order dated 25 th November 1997, the said Revision Application was rejected. We must note here that a Writ Petition was filed by the said Kisan for challenging the said order passed on the Revision Application under Section 34 of the ULC Act. The said Writ Petition being Writ Petition No.2698 of 1998 was admitted by this Court on 18th June 1998 and the interim relief of stay of the execution of the said order was granted. The order dated 27 th April 2000 passed by a Division Bench of this Court shows that the Writ Petition was unconditionally withdrawn and, therefore, the interim relief stood vacated. It appears that the said Kisan filed an Application for review of the said order passed under Section 34 of the ULC Act. As the said Application which was styled as a Revision Application was not disposed of, the said Kisan filed Writ Petition No.4418 of 2000. The said Writ Petition was dismissed by the order dated 28 th August 2000.
The said order reads thus:
"We are not inclined to issue any directions to the State Government as prayed for. However, it is open for the petitioner to make an application to the State Government to fix an early date for hearing of the revision application and in case such an application is made appropriate orders will be passed by the State Government.
Petition is dismissed.::: Downloaded on - 13/08/2014 23:49:51 :::
ash 31 wp-4264.05withsa-296.02 The parties and the authorities to act on the ordinary copy of this order duly authenticated by the personal Secretary of this Court."
27. In light of the said order, now a reference will have to be made to the order dated 14 th May 2003 passed by the Hon'ble Minister on the Application for review made by the Petitioner. The English translation of the relevant part of the said order reads thus:
"The landholder had preferred Writ Petition No.4418 of 2000 in the Honourable High Court against the order passed by the Government under the provisions of Section 34. In the said writ petition, the Honourable High Court has passed the orders on 28 th August 2000 that the landholder would have liberty to prefer application for early hearing on the revision application and on the said application being preferred, the Government would pass necessary orders thereon. There is no provision in the Act for review of the order passed under the provisions of Section 34. However, in order to avoid injustice to th the landholder, the order dated 25 November 1997 is being reconsidered as per the order passed by the Honourable High Court."
(Underline added )
28. Thereafter, in the further part of the order, the Hon'ble Minister noted that the prayer was for review of the order dated 25 th November 1997. English translation of the relevant part of the said order reads thus:
"Hence, it is prayed that the order dated 25th November 1997 passed by the Govt. under the provisions of Section 34 be reviewed and the prayers ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 32 wp-4264.05withsa-296.02 made by the landholder, be granted."
29. By the said order, the Hon'ble Minister quashed the earlier order dated 25th November 1997 and remanded the matter for reconsideration of the Competent Authority with a direction to pass a fresh order under Sub-section (4) of Section 8 of the ULC Act. In absence of power of Review conferred by the ULC Act, the said order is non-est. The matter did not rest there. It appears that the said Kisan made one more Application before the State Government. The Hon'ble Minister passed one more order on 6 th July 2004 which is impugned in the Writ Petition. The said order records that in terms of the earlier order, a fresh adjudication under Sub-section (4) of Section 8 of the ULC Act has not been made. It is recorded that the Constituted Attorney of Kisan raised further points and sought orders on the said points. Therefore, under the said order, the Hon'ble Minister proceeded to set aside the order of allotment of the said land to the Municipal Council. It was directed that while passing the order under Sub-section (4) of Section 8 of the ULC Act, the date of commencement for the said Act shall be treated as 26 th April 1979. A direction was also issued to sanction a scheme under Section 20 of the ULC Act in relation to the land which may be declared as the excess land.
30. Firstly, there was no power vesting in the State Government under the ULC Act to review its own order passed on 25 th November ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 33 wp-4264.05withsa-296.02 1997 on the Revision Application made under Section 34 of the ULC Act. Secondly, while deciding the Application for Review, the Hon'ble Minister completely misread the order dated 28 th August 2000. The said order on the Review Application notes that the action under Sub-
section (5) of Section 10 of the ULC Act has been already taken and the compensation for the excess land has been already paid to the land owner. It also notes that the said land was allegedly allotted to the erstwhile Miraj Municipal Council. Even assuming that there was a power of review, at highest, the State Government could have reviewed the order dated 25th November 1997 and kept the Revision Application for fresh hearing. The Revision Application could not have been decided under the same order and that too also without any notice to the Municipal Council. The Revision Application was decided by the same order by setting aside the earlier order under Sub-section (4) of Section 8 of the ULC Act. Thus, complete illegality has been committed by the State Government. As the said order is non-est, it deserves to be ignored.
31. By further order dated 6th July 2004, gross illegality committed earlier has been aggravated. In a disposed of Review Petition/Revision Application, further directions were issued by the Hon'ble Minister by which even the allotment of the land to the Municipal Council was set aside, and the date of commencement for the ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 34 wp-4264.05withsa-296.02 purposes of the said land was laid down. There was no occasion for the State Government to pass any further order. The impugned order is completely without jurisdiction. The said order records that the submission on behalf of Kisan that the earlier order passed by the Government be reconsidered and the prayers made in the Application be granted. As noted earlier, the execution of the impugned order dated 6th July 2004 has been stayed during the pendency of the Petition.
In the reply filed by the Municipal Corporation and in particular Paragraph 9, it is stated that the land allotted to the Municipal Corporation was for rehabilitation of the slum dwellers and the funds are made available for implementing the 'Valmiki Ambedkar Avas Yojana'. Reliance is placed on the photographs annexed to the said reply showing the construction of the building for rehabilitating the slum dwellers which have come up on the adjoining land.
32. Thus, the actions of the State Government of passing the aforesaid orders which are completely illegal and without jurisdiction will have to be rectified by setting aside the impugned order.
33. We have already recorded a finding that before the Repeal Act came into force in relation to the State of Maharashtra, the possession of the excess land was taken over in accordance with Sub-
section (5) of Section 10 of the ULC Act. Therefore, Clause (a) of Sub-
section (1) of Section 3 of the Repeal Act will apply and the Repeal will ::: Downloaded on - 13/08/2014 23:49:51 ::: ash 35 wp-4264.05withsa-296.02 not affect the vesting of the excess land in the State under the provisions of Sub-section (3) of Section 10 of the ULC Act and, therefore, the order of allotment made to the erstwhile Municipal Council continues to be valid. Accordingly, we pass the following order.
ORDER :
(a) Second Appeal No.296 of 2002 is hereby allowed and the impugned Judgment and Decrees are quashed and set aside;
(b) Accordingly, the Regular Civil Suit No.67 of 1982 filed by Kisan Satwekar stands dismissed;
(c) The Rule issued in Writ Petition No.4264 of 2005 is made absolute in terms of prayer clause (b);
(d) There will be no orders as to costs.
( A.S. CHANDURKAR, J ) ( A.S. OKA, J )
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