1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 501/2010. Municipal Council, Bhadrawati and another. .Versus Prakash Punjaram Asawale and others. ________________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. _______________________________________________________________________________________ CORAM : R.M.SAVANT, J. DATED : 14.01.2011. Heard Shri M.I. Dhatrak, the learned Counsel for the appellants and Shri S.V. Dhawan, the learned Counsel for respondent no.1. The above Second Appeal has been filed by the Municipal Council, Bhadrawati against the judgment and decree dated 31.07.2010 passed in Special Civil Suit No. 68/2000. By the said judgment and decree, the dismissal of the suit by the Trial Court was set aside and the suit was partly decreed to the extent of restraining the defendants i.e. the Municipal Council and its officers from dismantling the construction of the plaintiff on Survey No.256 without due process of law and the plaintiff was 2 awarded damages of Rs. 25,000/- from the respondents jointly and severally from the date of the suit till actual realization of the amount. The facts involved in the appeal in a nutshell are thus - Respondent no.1 herein is the original Plaintiff who filed a suit being Special Suit No. 68 of 2000 for declaration and permanent injunction and damages. The suit property is the property encroached upon by the plaintiff ad-measuring 51 x 20 feet i.e. 1020 sq. ft. of revenue land bearing Survey No. 256 at Bhadrawati and a pucca construction standing thereon to the extent of 20 x 15 feet, wherein the plaintiff was carrying on his business of timber depot. The cause for filing the said suit was a notice received by the plaintiff from the defendant no.1 Municipal Council, Bhadrawati asking him to remove his encroachment from the public way within 24 hours. It was the case of the plaintiff that the defendants came on the suit site with a JCB Machine and dismantled the construction standing on the suit site. It was the case of the plaintiff in the said suit that the property in question is situated beyond 80 feet from the road, which is towards the Western side of the suit property. It was the case of the plaintiff that the road passes through the revenue land 3 bearing Survey No.152 which is adjacent to Survey No. 257 and is falling in Survey No.256. It was the further the case of the plaintiff that the provisions of Maharashtra Municipalities Act were not followed by the defendants while dismantling his property. The defendants contested the said suit by filing their written statement. It was their case that the plaintiff had put up kaccha construction without the permission of any Authority in survey no.257 and that there was no construction of plaintiff in survey no.256. It was further their case that since the encroachment was on a public road, in survey no.257, the action of removal of the said encroachment is within the fore-corners of law. The parties went to trial and led evidence in support of their respective cases. The trial Court on the basis of the material on record, dismissed the said suit in toto. The Trial Court was of the view that the defendants were well within their rights to remove the encroachment from a public way. The trial Court also recorded a finding that the encroachment of the plaintiff was on survey no.257, on which the public way was situated. The trial Court also recorded a finding that the plaintiff has not led any evidence to prove that the action of the defendants had resulted into loss to him to the tune of Rs. 1 lakh. 4 Being aggrieved by the dismissal of the said suit by judgment and order dated 22.02.2006, the plaintiff filed an Appeal being Regular Civil Appeal No. 132/2006. However, it is required to be noted that the plaintiff in the trial Court though had initially filed a suit on the basis that the property / structure in question was situated on survey nos. 256 and 257, however, by way of amendment the plaintiff deleted to refer survey no.257 and had therefore, restricted the suit to survey no.256. The First Appellate Court though not required to deal with the case of the plaintiff, in so far as the survey no.257 is concerned, ventured to consider the evidence qua the said survey no.257 and recorded a finding that no evidence has been produced by the defendants that survey no.257 is a public road. The First Appellate Court on the basis of the evidence on record observed that the plaintiff had not proved that his construction on survey no.256 was removed, however, observed that unless the encroachment was found on the road, the act of the defendants in removal of the encroachment was not in accordance with the provisions of the Maharashtra Municipalities Act. It is on the said basis, that the First Appellate Court held the plaintiff to be entitled to damages of Rs. 25,000/- from the defendants. The following substantial question of law 5 therefore, arises for consideration in the above appeal. “Whether the plaintiff is entitled to damages in question, in view of the fact that he had deleted survey no.257 from the subject matter of the suit property ?” As indicated above, the fact that the plaintiff had deleted survey no. 257 from the subject matter of the suit property, is not in dispute. The trial Court was therefore, obliged to consider the case of the plaintiff vis-a-vis survey no.256only; however, after recording a finding that the plaintiff had failed to prove that the construction on survey no.256 is removed, the First Appellate Court in my view has totally misdirected itself by observing that the defendants have not proved that on survey no.257 a public road passes. There was no question of defendants, being under any obligation to prove the said fact in view of the deletion of Survey No.257. The First Appellate Court therefore, was not required to record any finding in so far as survey no.257 is concerned, and therefore, awarding damages of Rs. 25000/- would mean conferring a largesse on the plaintiff. The First Appellate Court has also cited no reason as to why the plaintiff is entitled to Rs. 25,000/-. The 6 rationale for awarding the said amount is also not even mentioned in the judgment and decree. It appears that the First Appellate Court was oblivious of the findings recorded by the Trial Court that the plaintiff had failed to prove that any damage was caused to the plaintiff . The grant of damages, therefore, was totally unwarranted and unjustified. The plaintiff was therefore not entitled to any damages. The question of law therefore is answered accordingly. The decree of the First Appellate Court in so far as it awards damages vide Clause (ii) thereof, is set aside. Rest of the decree stands confirmed. It is clarified that in terms of the said decree the appellants/defendants would be entitled to proceed against the plaintiff in respect of the unauthorized construction, if any, in accordance with law. Second Appeal is thus partly allowed, with no order as to costs. JUDGE Rgd