1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6365 OF 2008 1. Shriram Mahatarji Gaikwad and others .. .. Petitioners Versus 1. The State of Maharashtra and others .. .. Respondents Shri V. J. Dixit, Senior Advocate, i/by Shri R. R. Irmale, Advocate for the Petitioners. Shri K. B. Choudhari, Addl.G.P. for the Respondent No. 1. Shri A. S. Bajaj, Advocate for the Respondents No. 2 and 3. Shri S. D. Karkare, Advocate h/f Shri A. M. Karad, Advocate for the Respondent No. 4. Shri S. V. Mundhe, Advocate for the Respondent No. 5. Shri V. D. Salunke, Advocate for the Respondent No. 6 and 8. Shri R. R. Mantri, Advocate for the Respondent No. 7. Shri M. P. Gude, Advocate for the Respondents No. 9. Shri N. P. Patil (Jamalpurkar), Advocate for the Respondent No. 10. CORAM : NARESH H. PATIL, AND N. D. DESHPANDE, JJ. DATE : 01ST APRIL, 2010. 2 ORAL ORDER [Per NARESH H. PATIL, J. ] : . Heard. 2. The petitioners who were found to be encroachers' in the area which was acquired by the City and Industrial Development Corporation Ltd. ( In short CIDCO) for development of a new township approached this Court for various reasons. In substance, the petitioners seek to challenge the allottment of shoplet plots by CIDCO to 26 persons who are enlisted in annexure I, which is part of resolution passed by the Board of Directors of CIDCO. 3. In the submissions of learned Senior Counsel Mr. V. J. Dixit, in the year 2006 CIDCO authorities conducted survey, spot inspection of the subject area and found that 26 persons had encroached over the subject area. A list of 26 persons was prepared and CIDCO decided to regularize the encroachment to avoid obstruction to development of township of the concerned area. It was submitted that petitioners No. 1, 5, 6 and 7 were allotted the plots, but they were denied proper location by CIDCO. The petitioner No. 2 was not allotted the plot on the 3 ground that his occupation was outside the notified area of CIDCO. In other words in view of CIDCO, the petitioner No. 2 occupied the area which was under the jurisdiction of Aurangabad Municipal Corporation. The petitioners' contention is that the petitioner No. 3 and 4 were not allotted plots, though they were occupying subject area, their names were deleted from the list. It is alleged by the petitioners that the names of respondents No. 5 to 9 were lateron included in the list of 26 persons. It is further alleged that at the behest of one Motilal Raghunath Jagtap/respondent No. 10, who was acting as councillor for a period from 2000-2005, the list was moulded to benefit the family members of Mr. Jagtap/respondent No. 10. Learned Senior Counsel placed heavy reliance on Shop Act Registration Certificates, receipt of municipal taxes, M.S.E.B. bills and other receipts in support of his submissions. Learned senior counsel further objected to documents of sale and purchase in respect of petitioner No. 4 which according to the counsel were manufactured one. The counsel submitted that the petitioner No. 3 had occupied two plots, one was sold and one he occupied. Inspite of the same, the petitioner No. 3 was denied the plot. The signatures of the petitioner No. 3 were demonstrated to be fabricated and the counsel requested the Court to compare the 4 signatures from the record including vakalatnama, etc. The counsel further submitted that, there were 30 plots out of which 4 plots still remained to be allotted, which could be allotted to the petitioners No. 2, 3 and 4. It was submitted that the plots should have been allotted by drawing lots in accordance with provisions of New Towns Disposal of Lands Regulations, 1992 framed under the Maharashtra Regional and Town Planning Act, 1966. More particularly under Rule 4 of the Regulations of 1992. 4. Learned counsel Shri Bajaj appearing for the CIDCO submitted that the petition raises several disputed questions of facts, for which evidence is required to be led. According to the counsel the list annexed with the resolution passed by the Board has become final, official list of allottment of plots. Admittedly, the petitioners and the other allottees whose names are enlisted in annexure I to Boards Resolution were encroachers. To avoid any obstruction to the development of the township and considering the fact that these encroachers were occupying the subject area since last so many years earlier to the acquisition of the area by the CIDCO, the CIDCO decided to allott shoplet plots to these persons under a resolution. The resolution is placed on record along with list. The counsel further submitted that the 5 allottees have raised pakka/RCC construction. There is no plot available now in the concerned portion of the subject area facing highway. The plots are of very small size i. e. 3 x 9 square meters and the allottees are running small business activities through their respective shops. The CIDCO had categorized the allottees in Class A, B and C. Except the petitioners, according to the counsel none had challenged the allottment. The counsel submitted that the petitioner No. 2 was not falling in the notified area and the petitioner No. 3 and 4 were not allotted plots as per the survey and record available with the CIDCO, because they had already transferred the area in their possession to others. On instructions counsel submits that out of these plots three plots were allotted to the projected affected persons and CIDCO is in possession of one open plot as on today. 5. The learned counsel Shri Salunke appearing for the respondents No. 6 and 8 submits that the petition is required to dismissed for the reason that, it raises several disputed questions of facts. In exercise of writ jurisdiction under Article 226 of the Constitute of India, the issues raised by the petitioners cannot be gone into by this Court. The petitioners have developed their properties. Their livelihood is dependent on the small business 6 which they are running. The petitioners being encroachers should not be permitted to raise the issues and challenge the allottment of others and ask for allottment of plot of a particular location of the subject area. According to counsel, petitioners have raised contradictory prayer clauses, meaning thereby that at one place the petitioners have challenged the allottment of plots and on the other hand, the petitioners claim allottment of the very plots on front side facing highway. 6. The learned counsel Shri Mantri submitted that the documents on which reliance is placed by the petitioners are old documents and based on the same the petitioners possession and title cannot be established, more particularly in the proceedings of writ petition. The categories were rightly made by the CIDCO and according to the same the allottment was made. Some allottees got frontage, some got area of rear side, but on this count petitioners shall not be permitted to invoke extraordinary writ jurisdiction of this Court. 7. Learned counsel Shri N. P. Patil supported the contentions of learned counsel appearing for other allottees/respondents and submitted that the allegations made against him i. e. respondent 7 No. 10, that being councillor, he impressed upon the CIDCO to tinker with the list of allottees. Learned counsel submitted that his client was elected as a councillor during the period 2000-2005, whereas the survey was conducted in the year 2006. 8. We have considered the submissions of the learned counsel appearing for the respective parties. Perused the record and the relevant Rules. For getting clear picture of the subject area, we asked learned counsel for the CIDCO to produce rough chart/map of location. We have perused the same today. 9. By an order dated 12th December, 2008 this Court had issued directions to respondent CIDCO not to deliver possession of newly constructed shoplets to anybody without orders from this Court. Said interim relief is in operation till today. We are informed, prior to the date of passing of the order on 12th December, 2008, some of the allottees had in fact developed the plots and started their business there. 10. Prima facie, we find that the petitioners have raised number of questions of facts which are disputed by the respondents. It is true that some evidence is required to 8 ascertain the true and falsity in the allegations made by the petitioners. In the fact situation of the case, we find that it would not be appropriate for this Court to interfere into the disputed questions of fact as raised by the petitioners. 11. It is true that petitioners too are encroachers over the property. The CIDCO by resolution decided to allott shoplet plots to the occupants of the area who were admittedly encroachers. In the facts of the case, we are not inclined to entertain the plea that some of the petitioners i. e. petitioners No. 1, 5, 6 and 7 ought to have been allotted plots of better location i. e. having access to highway. 12. As regards petitioner No. 2, the CIDCO has taken a clear stand that the petitioner No. 2's occupation was outside the notified area of CIDCO and was falling under the jurisdiction of Aurangabad Municipal Corporation. We do not find any good reason to disbelieve the stand of CIDCO. In respect of petitioners No. 3 and 4, the CIDCO had placed on record certain transactions of sale and purchase. Learned counsel for the petitioners' had argued that petitioner No. 3 had occupied two plots out of which he had sold one and had retained one. It is in 9 fact objectionable conduct. Why encroachers should enter into sale and purchase of plots of which he himself is not a owner. We are therefore, not inclined to deal that issue, whether petitioner No. 3 and 4 were occupying any plot and sold out that plot by execution of deed. 13. In respect of the plea that some plots are still lying vacant, learned counsel for the CIDCO had made it clear that three plots were allotted to project affected persons and one plot is in possession of CIDCO as on today. Learned counsel for the CIDCO submitted that CIDCO allotted the plots in compliance with the provisions of the Maharashtra Regional and Town Planning Act and the New Towns Disposal of Lands Regulation 1992. The Rule 4 of the Regulation 1992 reads as under : 4. Manner of disposal land. The Corporation may dispose of plots of lands by public auction or tender or by considering individual applications as the Corporation may, determine from time to time. 14. We find that in the facts of the case, many of the allottees are in the occupation of the plots in question. Their possession is settled since last so many years. The petitioners themselves 10 being encroachers, cannot pick and choose particular plot. 15. For the reasons stated above, we are not inclined to entertain the petition. The petition is accordingly dismissed. [ N. D. DESHPANDE, J.] [NARESH H. PATIL, J.] bsb/April 10