1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD 1] WRIT PETITION NO.2297 of 1996 Mohansing Uttamsing Tanwani residing at Kumar Nagar Sakri Road, Dhule. Petitioner Versus 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 3]Shri Sitaram Kunte Collector of Dhule, Dhule. 4] Shri P.K. Jain Incharge District Superintendent of Police, & SRP Commandant, Dhule. 5] Shri Newasi, Chief Officer, Dhule Municipal Council Dhule. 6] Shri Wani Town Planner, Dhule Municipal Council Dhule. 7] Executive Engineer Maharashtra State Electricity Board Dhule. 2 8] The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr R.B. Raghuwanshi, Advocate holding for Mr. V.A. Nimbalkar, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 Mr. Parag Barde, Advocate for respondent No.5. Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.8. 2] With WRIT PETITION NO. 2306 of 1996 1] Shri Ramdas Tukaram Wagh 2] Shri Laxman Tukaram Wagh both carrying on business of Welding workshop at Chalisgaon Malegaon Cross Road, Dhule. .. Petitioners. Versus. 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 3]Shri Sitaram Kunte Collector of Dhule, Dhule. 4] Shri P.K. Jain 3 Incharge District Superintendent of Police, & SRP Commandant, Dhule. 5] Shri Newasi, Chief Officer, Dhule Municipal Council Dhule. 6] Shri Wani Town Planner, Dhule Municipal Council Dhule. 7] Executive Engineer Maharashtra State Electricity Board Dhule. 8] The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr. A.B. Girase, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 Mr. Parag Barde, Advocate for respondent No.6 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.8. 3] WITH WRIT PETITION NO. 2307 OF 1996 1] Satish Bhagwandas Wadhwa Satish Radio. 2] Ramlal Lalchand Atlani, Saraswati Radio. 3] Ashok Dayaprasad Bhagat Standard Radio. 4 4] Ashok Rachiram Khatri Mahalaxmi Watch & Radio. 5] Fula Dagadu Patil Indirabai Shetki Kendra. All shop owners at Jail Road Dhule. .. Petitioners Versus. 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 3] Secretary to the Government of Maharashtra, Urban Development Department, Mantralaya, Bombay. 4]Shri Sitaram Kunte Collector of Dhule, Dhule. 5] Shri P.K. Jain Ex. Incharge District Superintend of Police & Commandant Dhule. 6] Shri Ramesh Mewasi, Chief Officer, Dhule Municipal Council Dhule. 7] Shri Wani Town Planner, Dhule Municipal Council Dhule. 8] Shri Ahirrao Dhule Municipal Council, Dhule District Dhule. 5 9] Shri B.B. Gite, Octroi Sperintendent and Member of the Encroachment Removal Committee Dhule Municipal Council, Dhule. 10] Dhule Municipal council, Dhule through President Shri C.P. Galai. 11] Shri Pagare, Executive Engineer (Urban) Maharashtra State Electricity Board Dhule. 12] Shri J.C. Menaria Telecom Engineer, Dhule Mundada Market, Dhule. 13]The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr. A.B. Girase, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 to 4. Mr. Parag Barde, Advocate for respondent No.9 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.13 Mr. V.D. Sonawane, Advocate for R. No. 12. 4] with WRIT PETITION NO. 2308 OF 1996 1] Parasram Topandas Kevalani Occ. Business of repairing and seeling of watches in the name of Rama Watch House near Municipal School No.5 Agra Road, Dhule. 6 2] Tharumal Kishanr Duseja Occ. Business as kirana shop at Gurunanak area Dhule. .. petitioners. Versus 1] Union of India 2] The State of Maharashtra 3] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 4] Secretary to the Government of Maharashtra, Urban Development Department, Mantralaya, Bombay. 5]Shri Sitaram Kunte Collector of Dhule, Dhule. 6] Shri P.K. Jain Ex. Incharge District Superintend of Police & Commandant Dhule. 7] Shri Ramesh Mewasi, Chief Officer, Dhule Municipal Council Dhule. 8] Shri Wani Town Planner, Dhule Municipal Council Dhule. 9] Shri Ahirrao Dhule Municipal Council, Dhule District Dhule. 7 10] Shri Bhagwan Bandu Gite, Octroi Superintendent and Member of the Encroachment Removal Committee Dhule Municipal Council, Dhule. 11] Dhule Municipal council, Dhule through President Shri C.P. Galai. 12] The Executive Engineer Maharashtra State Electricity Board Dhule. 13] The General Manager, Dhule Telephone, Dhule 14]The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr. A.B. Girase, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.2 to 4. Mr. Parag Barde, Advocate for respondent No.7 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.13 Mr. V.D. Sonawane, Advocate for R. No. 14. Mr. Mukul Kulkarni, Advocate for respondent NO.7 5] WITH WRIT PETITION NO. 2309 OF 19967 1] Motiram Moradmal Sindhi Netaji General Stores 2] Krupaldas Lalchand Tulgaji Rupaldas Lalchand Sweet Mart 8 3] Smt. Pushpabai Holaram Vinod Wine Shopping 4] Suresh Bhagwandas Dandvani Shivam STD booth 5] Syed Kasam Syed Ahmed Electric Shop All carrying on business at Jail Road, Dhule, Maharashtra .. Petitioners Versus 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 3] Secretary to the Government of Maharashtra, Urban Development Department, 4]Shri Sitaram Kunte Collector of Dhule, Dhule. 5] Shri P.K. Jain Ex. Incharge District Superintend of Police & Commandant Dhule. 6] Shri Ramesh Mewasi, Chief Officer, Dhule Municipal Council Dhule. 7] Shri Yashwant Wani Town Planner, Dhule Municipal Council Dhule. 9 8] Shri K.S. Ahirrao Incharge, Encroachment Removal, Dhule Municipal Council, Dhule District Dhule. 9] Shri Bhagwan Bandu Gite, Octroi Sperintendent and Member of the Encroachment Removal Committee Dhule Municipal Council, Dhule. 10] Shri Paghare, Executive Engineer (Urban) Maharashtra State Electricity Board Dhule. 11] Shri N.R. Menaria Dhule Telephones, Dhule. 12] Dhule Municipal council, Dhule through its President 13]The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr. A.B. Girase, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 to 4. Mr. Parag Barde, Advocate for respondent No.6 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.13 Mr. V.D. Sonawane, Advocate for R. No. 11. 6] with WRIT PETITION NO., 2324 OF 1996 10 1] Prakash Parbhudas Makhija Proprietor, Kailas General Stores 2] Murumal Maguma Asija Proprietor, Shiv-Shankar Kirana Storea. 3] Laxmandas Chetandas Sharma Proprietor, Ketan Photo Studio. 4] Pahelja Parasmal Kevlani Proprietor, Super Clock 5] Nand Prabhudas Makhija Proprietor , Amrut Tea 6] Ashok Jagannat Ajalkar 7] Pramash Morumal Asija Proprietor, Sunil Supari Centre. 8] Naganrag Rupchand Pinto Proprietor, R.K. Vada Pav Centre. 9] Dattatraya Namdeo Khalge All shop owners, near Raj Kamal Talkies, near School No.5, Dhule. .. Petitioners Versus 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 11 3] Secretary to the Government of Maharashtra, Urban Development Department, 4]Shri Sitaram Kunte Collector of Dhule, Dhule. 5] Shri P.K. Jain Ex. Incharge District Superintend of Police & Commandant Dhule. 6] Shri Ramesh Mewasi, Chief Officer, Dhule Municipal Council Dhule. 7] Shri Yashwant Wani Town Planner, Dhule Municipal Council Dhule. 8] Shri K.S. Ahirrao Incharge, Encroachment Removal, Dhule Municipal Council, Dhule District Dhule. 9] Shri Bhagwan Bandu Gite, Octroi Sperintendent and Member of the Encroachment Removal Committee Dhule Municipal Council, Dhule. 10] Shri Paghare, Executive Engineer (Urban) Maharashtra State Electricity Board Dhule. 11] Shri N.R. Menaria Dhule Telephones, Dhule. 12] Dhule Municipal council, Dhule through its President 12 13]The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents Mr. A.B. Girase, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 to 4. Mr. Parag Barde, Advocate for respondent No.6 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.13 Mr. V.D. Sonawane, Advocate for R. No. 10. 7] with WRIT PETITION NO. 2325 OF 1996 Chhotulal Krishna Chaudhari Age 40 years, Occupation Business Proprietor, Shinvangi Hotel resident of vakharkar Nagar Dhule. .. Petitioner Versus 1] The State of Maharashtra 2] Shri Sharad Upasani Chief Secretary to the Government of Maharashtra, Mantralaya, Bombay – 400 032. 3] Secretary to the Government of Maharashtra, Urban Development Department, 4]Shri Sitaram Kunte 13 Collector of Dhule, Dhule. 5] Shri K.P. Jain Ex. Incharge District Superintend of Police & Commandant Dhule. 6] Shri Ramesh Mewasi, Chief Officer, Dhule Municipal Council Dhule. 7] Shri Yashwant Wani Town Planner, Dhule Municipal Council Dhule. 8] Shri K.S. Ahirrao Incharge, Encroachment Removal, Dhule Municipal Council, Dhule District Dhule. 9] Shri Bhagwan Bandu Gite, Octroi Sperintendent and Member of the Encroachment Removal Committee Dhule Municipal Council, Dhule. 10] Shri Paghare, Executive Engineer (Urban) Maharashtra State Electricity Board Dhule. 11] Shri N.R. Menaria Manager, Dhule Telephones, Dhule. 12] Dhule Municipal council, 13]The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule Respondents 14 Mr. R.B. Raghuwanshi, Advocate holding for Mr. D.S. Bagul, Advocate for the petitioner. Mrs. R.K. Ladda, AGP for the respondent No.1 to 5. Mr. Parag Barde, Advocate for respondent No.9 Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate for the respondent No.13 Mr. V.D. Sonawane, Advocate for R. No. 11. 8] with WRIT PETITION NO. 2343 OF 1996 Smt. Dhapibai Rameshwar Agrawal carrying on business of Country Liquor Shop at Malegaon Road, Near Chimanlal Petrol Pump, Dhule through power of attorney holder Shri Sunilkumar Mohanlal Jaiswal, Age 32 years, R/o. 45, Gopal Nagar, Dhule District Dhule Pin. 424 001 .. Petitioner Versus 1] The State of Maharashtra 2] The Collector of Dhule 3] State Excise and Prohibition Superintendent, Dhule. 4] Dhule Municipal Council Dhule. 5] The Dhule Municipal Corporation through its Commissioner Dhule, Dist. Dhule. .. Respondents. 15 Shri R.B. Raghuwanshi, Advocate for the petitioner Mr. P.M. Shah, Senior Counsel for respondent Nos.4 and 5 Mrs. R.K. Ladda, AGP for respondent No.1 to 3 CORAM : B.R. GAVAI AND S.V. GANGAPURWALA, JJ. DATE : 4th AUGUST, 2010. ORAL JUDGMENT : [ PER B.R. GAVAI,J.] : 1] Since all these petitions involve common questions of fact and law, they are heard together and disposed of by this common judgment. 2] Writ petition No. 2297/1996 has been filed by the petitioner who claims to be a social worker and activist of Shiv Sena, praying for a writ of Mandamus directing the respondent Nos. 1 and 2 to take action against the respondent Nos. 3 to 7. Writ petition No. 2307/1996 and 2309/1996, have been filed by the petitioners claiming to be in a representative capacity on behalf of other shop owners, since all the shops are situated at Jail Road, Dhule. Rest of the petitions are filed in individual capacity by the occupiers of the shops situated in the same vicinity. These petitioners pray for a declaration that the demolition of their construction by the Municipal Council was not permissible in law and for a direction that the Municipal Council should not demolish the constructions carried out by them. 3] We have heard Shri Raghuwanshi, the learned 16 counsel appearing on behalf of the petitioners in W.P. No. 2297/1996 and Writ Petition No. 2325/1996, Shri Girase, learned counsel appearing on behalf of the petitioners in all other petitions, and Shri P.M. Shah, learned Senior counsel on behalf of the respondent Municipal Corporation. 4] Shri Raghuwanshi, submits that the petitioners were lawfully put in possession of the premises in question way back in the year 1953. He submits that though some of the petitioners were carrying on their business in the other areas of the municipal Council, they were persuaded by the Municipal Council to shift to the jail road. Thereafter, a resolution was passed by the Municipal Council, way back on 24/9/1954, whereby , it was resolved by the Municipal council to allot shops to the petitioners on both the sides of the Murlai Road and to the western side of the technical school. 5] He further submits that not only this, but the petitioners had applied for grant of permission in accordance with the relevant bye laws and the plans for construction were duly sanctioned by the Municipal council. He further submits that thereafter, the petitioners have been regularly paying rent to the Municipal council. It is submitted that though the occupation of the premises in question is from 1953-54, the Municipal Council has charged rent from 1951. Shri Raghuwashi, therefore, submits that the petitioners were lawfully inducted in the sites on jail road and as such, they cannot be termed as trespassers. It is 17 submitted that on the basis of the allotment of the sites by the municipal council, the petitioners have constructed their shops and are carrying on business for a period of more than half a century. It is submitted that the Municipal Council is, therefore, estopped from taking any action against the petitioners. He submits that the so called anti-encroachment drive which was carried out in the year 1995 was totally illegal and nothing else but a colourable exercise of power. He submits that, however, by virtue of the interim order passed by this court, the petitioners have reconstructed their shops and are carrying out their business for a period of last more than 13 years after reconstruction. He, therefore, submits that the law requires that the action taken by the Municipal Council of demolition of the construction is declared ultravires and that the interim relief granted in favour of the petitioners made rule of this court. The learned counsel relies on the judgment of the Apex court in the matter of “ Olga Tellis Vs. Municipal Council ad others” reported in AIR 1986 SC 180. . In so far as W.P. No. 2325/1996, Shri Raghuwanshi submits that the petitioner therein was allotted the premises in the year 1958, where he had initially constructed a restaurant. It is submitted that thereafter he had started a permit room in the year 1986. He submits that while granting the permit room, necessary formalities viz. NOC of the Municipal Council, NOC of the Prohibition Department & Police Department was obtained and as such, it does not lie in the month of the 18 municipal Council that the construction of the petitioners is unauthorized. 5] Shri Raghuwanshi, further submits that in so far as W.P. No. 2297/1996 is concerned, since in the report which was directed to be submitted by this court, the respondent officers have been found guilty by the learned District Judge, for indulging into illegal demolition of the premises, this court should take appropriate action against them in accordance with law and compensation be also awarded to them. Shri Raghuwanshi, further submits that in view of the judgment of the Division Bench of this court in the case of “ Hari Hotumal Tanwani Vs. Commissioner, Ulhasnagar “ reported in 2006(2) Bom.C.R. 487 , in the event it is held that the construction of the petitioners is to be removed, they are entitled to be rehabilitated on some other site. Shri Raghuwanshi further submits that the orders passed by the Collector dated 23rd August, 1995 and 28th August, 1995, which are purportedly passed under Section 308 of the said Act, are without jurisdiction. He further submits that the orders have been passed by the collector without issuing notice to the President of the Municipal Council, whose order was suspended and as such, the said orders passed by the collector are not sustainable in law. 6] Shri Girase, learned counsel appearing on behalf of the petitioners in rest of the petitions adopts the submissions of Shri Raghuwanshi. He submits that pursuant to the allotment of land and 19 valid constructions, the petitioners are legitimately carrying on their business for a period of more than half a century and as such, the action on the part of the Municipal Council needs to be set aside. 7] Shri Shah, learned senior counsel appearing on behalf of the respondent Municipal Corporation, relying on the judgment of the Apex Court in the matter of “ Ramchandra Sunda Vs. Union of India and others“ reported in (1999) 9 SCC 105, raised a preliminary objection to the tenability of W.P. No. 2307/1996 and 2309/1996. He submits that since while filing these petitions the procedure as required under Order 1 Rule 8 of CPC is not followed , the petitions are liable to be dismissed on that count. 8] On merits, the learned counsel for the respondent submits that the shops are situated on the premises which are on the road. He submits that in accordance with the provisions of the Maharashtra Municipalities Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as, “the said Act” for the sake of brevity) the “street”, vests in the Municipal Council. He submits that it is not only the metal road but also the open area abutting the said roads, which would be covered in the definition of “Street” and as such, the existence of the shops of the persons like the petitioners would not be permissible in law. In this respect, the learned counsel relies on the judgment of the Apex Court in the case of “ The Municipal Board, 20 Manglaur Vs. Mahadeoji Maharaj “ AIR 1965 SC 1147. The learned counsel further relies on the judgments of the Division Benches of this court in case of “Govind Nagar Shop Keepers Association and another Vs. State of Maharashtra and others“ 1998(5) Bom.C.R. 280 and in the case of “Gangadhar Narayan Wat Vs. State of Maharashtra reported in 2006(1) All M.R. 241. . Shri Shah further submits that most of the persons who were occupying the shops on the jail road had also filed 75 civil suits before the competent civil court. It is submitted that some of the persons who had filed the suits are the petitioners in W.P. No. 2307/1996. The suits were partly decreed thereby directing that persons in occupation should not be evicted without providing them an alternate accommodation. It is, however, submitted that the appeals preferred thereagainst by the Municipal Council have been allowed vide order dated 17th March, 2009. It is, therefore, submitted that since the individual rights of the petitioners have been determined in the competent civil proceedings, the writ petition at the behest of such persons would not be maintainable. 9] It is further submitted that in so far as some of the petitioners in W.P. No. 2309/1996 is concerned, they were plaintiffs in 126 civil suits filed by the persons in occupation of the premises on the said road. It is submitted that all the said suits were dismissed by the learned civil judge 21 and the appeals preferred thereagainst were also dismissed vide order passed by the District Judge on 3rd August, 2004. He further submits that out of 126 persons, only 11 persons have approached by way of filing a Second Appeal and rest of the persons have accepted the orders passed by the learned District Judge. It is therefore submitted that in the present case also since the rights of the petitioners are determined by the civil courts, the claim in the petition would not be tenable. . In so far as the contention of the petitioners regarding rehabilitation on alternate site is concerned, Shri Shah submits that since the petitioners are rank encroachers, they are not entitled for rehabilitation by the municipal corporation. 10] We will deal with the first submission advanced on behalf of the respondent Corporation in so far as tenability of the petition on the ground of non-compliance of the provisions of Order I Rule 8 is concerned. No doubt, that the learned senior counsel is right in relying on the judgment of the Apex Court in the matter of “Ramchandra Sunda Vs. Union of India“ (supra). However, it is to be noted that these petitions are admitted in the year 1996. Not only that, but the interim orders were also passed by this court thereby permitting the petitioners to reconstruct the demolished structures. It is further to be noted that the petitioners are not only claiming their right in the representative capacity but also claiming their right in individual capacity. In that view 22 of the matter, since we are deciding the petitions on merit, we are not inclined to entertain the said objection raised by the learned counsel for the respondent Municipal Corporation, at this stage. 11] The petitions arise out of peculiar facts and circumstances. It appears that in the year 1995, the respondent Municipal council had undertaken a drive for removal of unauthorized construction on Agra Road, Jail Road, S.T. Stand area in the Dhule city. It appears that the Chief Officer of the Municipal Council had requested the Collector, Dhule to provide necessary machinery for removal of encroachment. It appears that accordingly, the Collector, Dhule had provided necessary machinery including police aid, for removal of the unauthorized construction in Dhule. While the demolition drive was in progress and reached the area in question, the then President of the Municipal Council, had issued a direction to the Chief Executive Officer on 22nd August, 1995, thereby granting stay to the further removal of encroachment. It is pertinent to note that in the meantime, certain suits were filed before the civil court, Dhule. In the said civil suits, injunction was granted, thereby preventing the Municipal Council from evicting the plaintiffs without providing them alternate accommodation. It is pertinent to note that the said President of the Municipal Council was also one of the plaintiffs. Immediately on receipt of the said order from the President, the Chief Officer moved the Collector under the provisions of Section 308 of the said Act. An endorsement was made on the said 23 communication dated 22nd August, 1995 of the Chief Officer, by the Collector on 23rd August, 1995 thereby staying the order passed by the President of the Municipal Council and directing the Demolition Drive to proceed further in accordance with law. The Collector, vide the subsequent order dated 28th August, 1995, communicated the order passed by him to the Chief Officer. It appears that pursuant to the orders passed by the collector, the demolition drive proceeded further. As a sequel thereof, the petitioners were required to approach this court challenging the action of demolition. W.P. No. 2297/1996 was filed for action to be taken against the collector, Chief Officer and other officers of the Municipal Council, for having disobeyed the orders passed by the civil court and for having acted in a high handed manner. The other petitions which have been mentioned hereinabove, were filed, challenging the demolition and praying for a direction to permit the petitioners to construct on the said premises. It appears that all these petitions were heard together by the Division Bench of this court and rule came to be issued on 16th October, 1995. An interim order also came to be passed which reads thus :- “Pending the hearing and final disposal of the petition there shall be an interim order on the following terms :- i] The petitioners shall be permitted to reconstruct the structures that have been demolished at the respective places where they existed prior to demolition. 24 ii] The petitioners shall ensure that while reconstructing the structure they will not encroach upon road at site. Iii] Upon reconstruction of the structures, the Maharashtra State Electricity Board shall grant reconnection of the electricity to the aforesaid persons. The telephone department shall also grant reconnection of the telephone connection to the aforesaid persons. Iv] After reconstruction of the respective premises the aforesaid persons shall be permitted to resume their residence and business as before and the respondents shall not interfere with or obstruct the same. . It further appears that this court had directed the enquiry to be conducted by the District Judge, Dhule, on the following terms : “4 The circumstances of the case warrant that the District Judge, Dhule, should hold an enquiry with regard to the following issues/points after hearing the parties and giving them an opportunity to lead evidence in support of their respective