Writ petition no. 4332/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4332/2010 WITH CIVIL APPLICATION NO. 15759/2010 Sow. Maltibai Ramanlal Pardeshi, Age : 57 years, Occu. Business, R/o Khandbara, Taluka: Nawapur, District Nandubar. ...Petitioner. Versus 1 Gram-Sevak, Gram-Panchayat, Khandbara, Taluka-Nawapur, District Nandurbar. 2 The Tahsildar, Tahsil Office, Nawapur, Tal-Nawapur, District Nandurbar. 3 The State of Maharashtra, through District Magistrate Collector, Nandurbar. 4 The District Rehabilitation Officer, Nesu Project Scheme, Khairve, Office under Collector Office, Nandurbar. 5 Gram Panchayt, Khandbara, Tq. Nawapur, District : Nandurbar (M.S.) ...Respondents. Mr. Prashant Nagargoje h/f Mr. P.R. Katneshwarkar, Advocate for the petitioner. Mr. A.G. Ambetkar h/f Mr. S.T. Shelke, Advocate for respondent No.1. Mr. N.H. Borade, A.G.P. for respondents No.2 to 4 / State. Respondent No.5 though served absent. Mr. A.M. HazarE h/f Mr. A.B. Kale, Advocate for the applicant (in civil application). CORAM : A.V. NIRGUDE, J. DATED : 21st March, 2011. Writ petition no. 4332/2010 2 ORAL JUDGMENT: 1. Heard. 2 By consent of the learned advocates for parties, this writ petition is heard for deciding finally at this stage. 3 This writ petition is arising from the orders passed by the learned District Judge-1, Nandurbar. 4 The facts leading to this writ petition are as under. The petitioner is the plaintiff in Regular Civil suit No.15/2008 which is pending before the Civil Judge (Senior Division), Nandurbar. The cause of action for the suit of the petitioner in short, is as under. The petitioner is resident of village Khandbar Taluka Nawapur District Nandurbar. Village Khandbara is a Gram panchayat. In 1991 the Gram panchayat passed resolution and allotted the suit plot admeasuring 27x47 feet within Gram panchayat area to the petitioner. The petitioner established her restaurant business on the said plot. She has been paying property tax etc., to the Gram panchayat. Further, her application for regularization of allotment of plot in her favour, made before the Government, is pending. In the mean time, the Collector of Nandurbar, respondent No.2 Tahsildar and respondent No.1 the Gram Sevak transferred the ownership of this suit plot to the respondent No.4 who is rehabilitation officer appointed by the Collector. Respondent No.4 then prepared a lay out of the land and made plots in it. The layout and plots adversly affected the suit plot. As per the lay out the suit plot would stand allotted to a project affected persons. In 2002 the respondents disconnected electric supply to the petitioner’s restaurant and even cancelled the eating house licence. Writ petition no. 4332/2010 3 The petitioner filed a writ petition in this Court against the said action in 2006. The petitioner submitted that despite of this, she continued to possess suit plot of land on which she had constructed restaurant. She said that on 13/02/2008 and 14/02/008 the respondent No.2 Tahsildar sent her notice demanding possession of the suit plot. This gave her cause of action for the suit. 5 Pending hearing and disposal of the appeal, she filed an application for temporary injunction and sought to prevent the respondents from disturbing her settled possession till the disposal of the suit. Opposing her suit and the application, the respondents admitted that the petitioner is in possession of the suit plot and that she had earlier established a restaurant on the same. They even admitted that she was for some time running restaurant there. They pointed out that since 1991, the petitioner had made encroachment on property belonging to the respondent No.1. They further pointed out that the Government has not permitted allotment of the suit plot to the petitioner. They stated that at village Khandbara, rehabilitation Gavthan is established and they are taking legal action for removal of encroachment on such Gram panchayat land. However, both the Courts below rejected her application, on the ground that the petitioner had made encroachment and is liable to be evicted. I think both the Courts below erred in rejecting application seeking temporary injunction. It is common ground that since 1991 rightly or wrongly lawfully or unlawfully the petitioner is in occupation of the suit plot of the land on which she had established restaurant and probably stopped the Writ petition no. 4332/2010 4 said business sometime in 2002. 6 It is the case of the respondents that prior to 1993, the suit land was Government land. It was a forest land. Despite of this in 1991, the petitioner occupied it on the basis of so called resolution passed by the Gram Panchayat. Even assuming that the resolution passed by the Gram panchayat was erroneous and illegal, the fact remains that on the basis of such resolution, the petitioner availed an opportunity to encroach on forest land. The case of the respondent further is that in 1993 or so, the Government land including the land on which the suit plot is situated was transferred by the Government to the Gram panchayat for establishing a new Gavthan for project affected persons. However till 2004, it seems the respondent No.1 Gram panchayat did not manage the land which was given to them by the Government properly and so in 2004 the Collector directed the land given to the respondent No.1 Gram Panchayat to be taken back and he transferred this land to the respondent No.4 Rehabilitation Officer, who is supposed to distribute this piece of land amongst the project affected persons. In view of this, it is likely that even the suit plot of land which is in possession of the petitioner since long, would be subjected to distribution. The suit plot thus is now vulnerable for being distributed and allotted to third person, who could be a project affected one. But if the petitioner is in occupation of the suit plot, it is necessary that the respondents, should initiate proceeding for evicting the petitioner from the suit plot. The respondents do not come out with a case that they have started proceeding for eviction of the petitioner from the suit plot. I am sure, two notices are given by the respondent No.2 Tahsildar to the petitioner directing her to vacate Writ petition no. 4332/2010 5 the suit plot and hand over possession of the same. This notice however, does not refer to any provision of law empowering the respondent No.2 to issue such notice and to evict the petitioner. I therefore, asked the learned A.G.P. as to under what provisions, due process is contemplated for evicting an encroacher like the petitioner from the Government / Gram panchayat land. Mr. N.H. Borade, the learned A.G.P. informed me that Section 22 of the Maharashtra Land Revenue Code, 1996 empowers the State Government to initiate inquiry and to cause eviction of a person like the petitioner who occupied Government land without any right. Admittedly, the proceeding under Section 22 of the Maharashtra Land Revenue Code, 1996 have not been initiated against the petitioner and until that is done, she is entitled to temporary injunction. In view of the statement made by the learned A.G.P., this petition can be disposed of by following order. ORDER a) The respondents shall not disturb the petitioner’s possession of the suit land until she is lawfully evicted from the said possession, following due procedure of law. b) Civil application is dismissed. [A.V. NIRGUDE, J.] ts k/2011/march21/wp4332.10/ok