1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1188 OF 2010 (Harishchandra Shamraoji Karlekar vs. State of Maharashtra & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 15, 2010. Heard Mrs.Sirpurkar, learned counsel for the petitioner, Shri Adgokar, learned AGP for respondents No. 1 & 2 and Shri Bhoyar, learned counsel for respondent No. 3. The learned AGP states that he is still awaiting instructions in the matter. However, both learned counsel accept that State Government did not file any reply before the trial Court or appellate Court. The short contention raised by the petitioner is though the petitioner is in possession of site alleged to be encroached upon since last 40 years, without extending any opportunity of hearing as contemplated under Section 53 of Maharashtra Land Revenue Code, the action for dis-possesion has been initiated. The site in question has been allotted to Respondent No. 3 and the petitioner is being dispossessed. Shri Sirpurkar, learned counsel contends that this requirement of extending opportunity of hearing is not considered by the courts below at all. 2 Shri Bhoyar, learned counsel contends that in present facts, grant of opportunity will be an empty formality. He states that the petitioner has not placed any authentic material to show long possession of 40 years and only document produced is receipt of 2008 which shows that Respondent No. 2 – Nagar Parishad has recovered from some person some amount towards market charges on account of occupation of some site. According to him, the document cannot be connected either with the petitioner or then with site in question. He further states that burden was upon the petitioner to show alleged continued possession and as that burden has not been discharged, the Courts below have concurrently taken the view which is right and does not call for any interference. The fact that the petitioner is in possession of site is not in dispute. The notice for eviction given by the State Government itself accepts said possession of the petitioner. The provisions of law are also not in dispute and Section 53 of the Code in terms require the authority to hear the petitioner before taking any action. Section 53 of the Code, therefore, contemplates an opportunity of hearing to an alleged encroacher. Hence, merely because the person is an encroacher, opportunity of hearing cannot be denied to him. I can, therefore, not agree with the contention of Shri Bhoyar, learned counsel that because the petitioner is an encroacher, opportunity of hearing will be an empty formality. 3 The question that the petitioner is in possession since last 40 years or whether the possession has been taken only after the site was allotted to Respondent No.3, is a disputed question which could be looked into by the competent authority after hearing the rival parties. It is, therefore, not necessary for this Court to go into that controversy. The suit has been filed only for that limited purpose of getting that opportunity of hearing. In that situation, Respondent No. 1 can proceed to hear the petitioner as also Respondent No. 3 and pass further appropriate orders in the matter. As this issue is lost sight of, the impugned orders passed by the trial Court and appellate Court are quashed and set aside. The possession of the petitioner is protected. Respondent No. 1 shall pass appropriate orders after hearing the petitioner in the matter as per Section 53 of the Code. The petitioner and Respondent No. 3 shall appear before Respondent No. 1 – Collector, Wardha on 12th May 2010 and shall abide by its further directions in the matter. The Collector shall attempt to decide the said matter as early as possible and in any case within a period of two months thereafter. Writ Petition is allowed. Rule accordingly. No order as to costs. JUDGE *GS.