1 S.A.NO. 307/2009. THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.307 OF 2009. Prakash Rupala Mahale (Koli) Age: 55 years, Occ: Labour, R/o: Shelarwadi, Dhule. ...Appellant. (Ori.Deft.No.1.) VERSUS 1. Smt.Ushabai Prabhakar Jadhav, Age: 55 years, Occ: Merchant, r/o Shelarwadi, S.No.528, Milk Dairy Road, Municipal House No.205, Dhule. 2. Sunil Prabhakar Jadhav, Age: 35 years, Occ: Service, r/o Mumbai and Dhule, at S.No.528, Milk Dairy Road, Municipal House No.205, Shelarwadi, Dhule. 3. Kishor Prabhakar Jadhav, age: 32 years, Occ: Education, r/o Mumbai and also at Shelarwadi, S.No.528, Milk Dairy Road. Dhule. 4. Dhule Municipal Corporation, A Statutory Corporation, having its office at Dhule, through Chief Officer at Dhule. ...Respondents. (Respondent Nos.1 to 3-Ori.Pltffs. (Respondent No.4-Ori.deft.No.2) 2 S.A.NO. 307/2009. ... Mr.S.P.Deshmukh,Advocate h/f Smt.C.S.Deshmukh, Advocate for the appellant. Mr.C.R.Deshpande, Advocate for respondent Nos.1 to 3. ... CORAM: A.V.NIRGUDE,J. Date : 8th September, 2009. COURT’S ORDER: 1. The appeal is filed against the concurrent findings of the Courts below that the appellant/ defendant No.1, since 1981 has been occupying a portion of public street in such a way that he had obstructed the passage of the respondent Nos. 1 to 3/plaintiffs for going to the property, land survey No.528. 2. The respondent Nos.1 to 3 filed the suit against the appellant and the Municipal Corporation Dhule, seeking direction against the Municipal Corporation, Dhule to remove the encroachment made by the appellant on the public street. 3. The appellant took up several defences. First, he tried to contend that the land on which his structure is standing, is not part of public street. 3 S.A.NO. 307/2009. 4. Then, he stated that he has been squatting on that portion of the land since prior to 1960 and since he has been paying Municipal Taxes from 1981, he can not be evicted. He also raised objection based on Limitation Act, saying that the suit is not filed within limitation. 5. In addition to this, the learned Advocate appearing for the appellant also raised an objection to the impugned judgments saying that the Civil Court did not have jurisdiction to entertain such a complaint in view of Chapter-8-A of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred as, “the BPMC Act 1949”). All these objections, except the last one, were squarely met when the suit was before the Lower Courts. 6. I went through the judgments of the Courts below and found cogent reasons recorded by the Courts below for coming to a conclusion that the appellant’s hut was in fact occupying a portion of public street. As regards the objection of limitation, the learned judge of the trial Court rightly discussed this issue and held in view of Section 22 of the Limitation Act, the respondent No.1 to 3/plaintiffs were getting fresh cause of action every day because there was continuing tort committed by the appellant/defendant No.1. 4 S.A.NO. 307/2009. 7. The argument based on payment of property taxes is of no avail because payment of property tax does not give the payer any proprietary right to the property. 8. Let me now deal with the last submission of the appellant. I am assuming for the sake of argument that when the suit was filed, the respondent No.2/ Municipal Corporation was not a Municipal Council and the provisions of the BPMC Act, 1949 were applicable since beginning. The argument that, if the Corporation was to remove the appellant’s hut, which is situated on a public street, the only remedy available is an action under Chapter 8-A of the BPMC Act, 1949, is still not correct. Chapter 8-A of the BPMC Act, 1949, deals with the power of the Municipal Corporation to evict persons from "Corporation premises". The terms, “premises” and “Corporation premises”, are defined in the BPMC Act, 1949 and they do not include, “public street”. The term public street is separately defined in the Act. So, the public street, though it vests in the Corporation, is not a “Corporation premises.” 9. Chapter 8-A of the BPMC Act, 1949, would not apply to the facts of the case. 10. The reliance placed on the judgment of our 5 S.A.NO. 307/2009. High Court in the case of Ulhasnagar Municipal Corporation V/s M/s Gulshan Contractors/ Enterprises 1999 (1) Mh.L.J.741,is not appropriate. The facts of that case were completely different. 11. Besides, the respondent’s action was essentially based on a complaint of tort committed by the appellant and pursuant to such cause of action, the suit was filed. The Municipal Corporation was necessary party because the land on which the appellant had erected obstruction is a public street which vests in the Corporation. The respondent Nos.1 to 3/plaintiffs made the Corporation party to the suit mainly for execution of the Court’s order. 12. The objection regarding the propriety of the alternative relief that is granted to the respondent Nos.1 to 3/plaintiffs is also not convincing. The Court after passing the decree of mandatory injunction against the Corporation contemplated a situation that the Corporation would not execute the order. In such situation, the Court permitted the respondent Nos.1 to 3/plaintiffs to remove the obstruction with the help of the Courts. This situation is unlikely to occur for the Municipal Corporation will not be able to avoid execution of the Courts order/decree. When such a decree is passed, one 6 S.A.NO. 307/2009. would not go looking for an appropriate provision in the BPMC Act, 1949, mentioned above. One would not expect the Corporation to follow further due process for evicting and removing the obstructing hut of the appellant. All these suggestions put forward by the appellant’s Advocate are futile. The Appeal should, therefore, fail. It does not give rise to any substantial question of Law. Appeal stands dismissed. 13. In view of this, Civil Application No. 6872/2009 does not survive. It stands dismissed. (A.V.NIRGUDE,J.) lkp