1 wp7006-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7006 OF 2010 Sampatrao Shankarrao Deshmukh .. Petitioner versus The State of Maharashtra & Ors .. Respondents Mr.A.V.Anturkar i/by Mr.S.B.Deshmukh for the petitioner. Mr.R.M.Patne, A.G.P for respondent Nos.1 and 2. Mr.Dilip Bodake for respondent No.3. Mr.Milind Deshmukh for respondent No.4. CORAM : S.C.DHARMADHIKARI, J. 12th August 2011. P.C.: . This writ petition under Article 227 of the Constitution of India is directed against the order which has been passed by the Divisional Commissioner, Pune Division, Pune on 1st September 2010. 2 By the impugned order, the Divisional Commissioner has dismissed the appeal that has been preferred by the petitioner. The order of the Divisional Commissioner was on an appeal which came to be filed by the present petitioner. 2 wp7006-10.doc 3 It is the case of the petitioner that Survey No.269A, Gat No. 377 which is subject matter of this petition, is situated at village Shirval, Taluka Khandala, District Satara. 4 It is the case of the petitioner that one Appasaheb Deshmukh was in possession of this property and there is an entry to that effect in the Gram Panchayat record. The petitioner got this property as a result of a compromise effected in Partition Suit No.25 of 1985 and particularly in Civil Appeal No.406 of 1994. The petitioner received this property on 18th March 2003 alongwith the tenant Mr. Raghunath Baburao Pansare. It is, therefore, stated that the petitioner’s name is entered in the revenue records of Survey No.269A of Gat No.377 by Mutation Entry No.2445 dated 28th September 2001. The petitioner filed Regular Civil Suit No.1 of 2005 which is decreed and possession has been taken. The petitioner has filed various applications for construction of a house and the applications in that behalf are pending. 5 It is stated that the Gram Panchayat alleges that the old Pandharpur Road passes through this property. Therefore, a notice 3 wp7006-10.doc was issued for removal of encroachment, which came to be replied. The argument was, that there was no encroachment. Therefore, the first notice and the second notice threatening the demolition has been challenged before the Divisional Commissioner. The order of the Divisional Commissioner has been impugned in this writ petition. The Divisional Commissioner has held that all encroachments which are falling within the boundaries of the public road, have been surveyed and measured and perusal of that shows that the petitioner has encroached upon the road by putting a tin shed. This is an encroachment on the Gram Panchayat land/ public road belonging to the Panchayat and, therefore, the appeal came to be dismissed. 6 This writ petition was admitted and an ad-interim order was granted. The matter came up before me for hearing on interim relief. I have heard Mr.Anturkar, learned counsel appearing for the petitioner and Mr.Bodake appearing on behalf of the Gram Panchayat at great length. With their consent, by this order I am disposing off the writ petition itself. 4 wp7006-10.doc 7 On the assertions of the petitioner and particularly that there is no dispute that this is a private property and the same has come to the share of the petitioner, by virtue of a decree and that it is not a public street at all, what has been argued is that the said version is false and incorrect. The Block Development Officer has filed an affidavit stating therein that Government of Maharashtra through its Public Works Department, has transferred the road to Gram Panchayat, Shirval on 20th June 1977 and the petitioner has made encroachment thereon. Therefore, the said road is public road and the Gram Panchayat is competent to remove the encroachment under section 53(2) of the Bombay Village Panchayats Act, 1958. The reference is also made to civil suit filed by one Malharrao Deshmukh and another against the Grampanchayat. The order of status-quo passed in Regular Civil Suit No.81 of 2010 according to the respondents, does not assist the petitioner. Reliance is placed on the measurement map made by the T.I.L.R, Khandala. It has also been pointed out that there is no time limit to remove encroachment in the light of the amendment made in the Rules vide Government Gazette dated 24th November 2006. In these circumstances, the notice issued by the Gram Panchayat and 5 wp7006-10.doc served upon the petitioner to remove the encroachment of tin shed, is proper and legal. 8 Thus, in both the affidavits that have been filed on behalf of the State, it has been stated that the Government Resolution dated 20th June 1977 is conclusive. 9 In the reply of the Gram Panchayat, what has been pointed out is that while making measurements of boundaries on 15th January 2010 to 17th January 2010, Gram Panchayat had given notice of the survey and measurement and there is no substance in the contention that the same is carried out behind the back of the petitioner. A reference is made to several civil suits which have been filed. It has also been argued that notice was given to the petitioner and in the light of the documents that are produced, this is a clear case of the petitioner having encroached on Gram Panchayat land/ public road. Therefore, the writ petition be dismissed. 10 As against this, Mr.Anturkar has argued that the Gram 6 wp7006-10.doc Panchayat had made an application being Regular Darkhast No.6 of 2010 which was on the file of the Civil Judge, Jr. Division, Khandala. It is stated that this was an objection raised by the Gram Panchayat in execution proceedings where the decree passed in favour of the decree holder Chandrakant Jagdev Nigade (Deshmukh) vs. Appasaheb Anandrao Deshmukh & Ors, was put in execution. In that application made by the Gram Panchayat, Shirval as a third party, what has been pointed out is that the decree holder so also the judgment debtor have colluded and filed a Special Darkhast No.335 of 2009. It is the case of these parties that the decree passed in Regular Civil Suit No.27 of 1985 and Regular Civil Appeal No.406 of 1994 confers right, title and interest in their favour. However, the applicant-Gram Panchayat even in those proceedings had pointed out that the property does not belong to either of them, but, it is a public road. How that is a public road has been elaborately pointed out in this application, according to Mr.Anturkar. This application was made on 30th July 2010. Upon this application, a detailed order has been passed by the Executing Court holding that the Gram Panchayat has been unable to point out that the parties to the Special Civil Suit have no right, title and 7 wp7006-10.doc interest in the property and that it is a public road. It is in such circumstances that the learned single Judge proceeded to admit this writ petition and protect the petitioner. Such an order should be confirmed and it is not necessary for this Court to decide the issue of right, title and interest of the petitioner in the said property when that issue has already been dealt with and decided. Mr.Anturkar places strong reliance upon the observations in paras 10 and 11 of this order. 11 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto and the affidavits filed on record. This is a case where the notice was issued to the petitioner Sampatrao Shankarrao Deshmukh. The notice under section 53 of the Bombay Village Panchayats Act alleges that the lands were surveyed and measured and boundaries are fixed as shown in the map. The notice alleges that the present petitioner has encroached upon the public road. What has been alleged therein is,that there is a shed which has been constructed unauthorisedly on public road and the same should be removed or else the proceedings will be initiated. 8 wp7006-10.doc 12 A reply thereto was given by the petitioner. It was alleged that property was not public property or a public street or a public road. It is a private property. The petitioner has claimed that this property was received by virtue of being party to partition suit bearing No.25 of 1985, against which the civil appeal was preferred by the aggrieved party and in civil appeal, a compromise was effected. The petitioner received possession of this property on 18th March 2003 alongwith tenant Raghunath Pansare and that is how the names of the petitioner have been entered into the Revenue Records. Pertinently, it is stated that the possession of this property was received and the petitioner owns and possesses this property from 18th March 2003, yet, Mutation Entry of 28th September 2001 is relied upon to show that the name of the petitioner No.2 appears therein. The affidavit of Appasaheb Deshmukh has been relied upon. The Revenue Record is relied upon to show that there is Gram Panchayat House No.1393. The petitioner has entered into the agreement with Raghunath Pansare after the possession was obtained from Appasaheb Deshmukh on 26th July 2001. It is stated that the petitioner filed a Regular Civil Suit No.1 of 2005 against the 9 wp7006-10.doc tenant Raghunath Pansare and the suit was decreed on 23rd February 2003. The tenant was asked to hand over possession of the house to the petitioner and the possession is thus handed over on 17th March 2007. Further, the petitioner repaired the suit premises and it is stated that in the year 1955, part of Survey No. 269 was acquired by Government of Maharashtra for State Road Transport Corporation and award to that effect has been passed. Reliance is placed upon several applications made for construction of new house. 13 On the other hand, the Gram Panchayat places reliance on the letter addressed on 1st March 2006 to the Collector, Satara wherein there is a reference to the present property and it was stated that the property belongs to the Government but for the Gram Panchayat House and for putting up a proper road the said property be handed over to the Gram Panchayat. There are resolutions passed by the Gram Panchayat from time to time. There are also measurement maps relied upon. 14 In my view, it is not for this Court to go into these disputed 10 wp7006-10.doc questions and particularly in relation to the title of the property. If the petitioner has raised any issue with regard to the title of the property and sets up the case that the land belongs to him, such an issue cannot be answered in writ jurisdiction even if this writ petition is entertained. Ultimately, this Court will not be in a position to record evidence. Merely because some documents are filed and particularly to show that the petitioner has right, title and interest in the property, it will not be possible for this Court to scrutinise the same in the absence of oral depositions. This is not a case where the Court can on the basis of some stray observations in the order passed in Execution proceedings conclude that the petitioner is the owner of the property. It is the case of the petitioner through out that the land is not a public property or Gram Panchayat property, but, is of private ownership. That was the case even before the Commissioner. The petitioner cannot urge that despite the issue of title being raised, he is remediless. The arguments of Mr.Anturkar that the proceedings being under section 53 of the Bombay Village Panchayat Act which deals with obstructions and encroachments on public streets and open sites, that the remedy of the petitioner to approach the Civil Court is barred. 11 wp7006-10.doc 15 It is not possible to accept this argument because sub-section 1 of section 53 states that if any person within the limits of the village builds up or sets up any wall or fence, rail, post, stall, verandah, platform, plinth, step or structure or thing or any other encroachment or obstruction, or deposits anything as mentioned in clause (b) and without written permission given by Panchayat, puts up, so as to protect from an upper storey thereof, any verandah, balcony, room or other structure or thing in or over any public street or place, then, he shall be punished for such unauthorised activity with fine. Sub-section 2 of section 53 provides that the Gram Panchayat shall have power to remove any such obstruction or encroachment. That is the duty of the Gram Panchayat and if the Gram Panchayat fails to take any action, Collector suo motu or an application filed in this behalf, may take action. The person aggrieved by any such exercise of powers by the Panchayat may be in 30 days from the date of exercise of such powers, appeal to the Commissioner and the Commissioner after making such enquiry shall pass the orders as he deems necessary. According to Mr.Anturkar, there is no remedy available in law to challenge this 12 wp7006-10.doc order. Therefore, this writ petition is maintainable. 16 If the issue was only covered by sub-sections 2 and 3 of section 53 and that case was of an encroachment or obstruction contemplated by section 53(1) being removed, then, possibly such an argument could have been accepted. However, it is the petitioner who states that he has not encroached or caused obstruction on any public road. He has carried out the alleged activities in his private property. If such is the case of the petitioner himself and he is placing reliance on certain decrees, suit for partition between family members and particularly a compromise decree, then, it was incumbent upon him to have moved the appropriate Court affirming and asserting his title in the property. It is a common ground that to the original suit and to the compromise terms which were filed in the appeal, Gram Panchayat was not a party. The Gram Panchayat sought to intervene and obstruct the execution of decree by filing a application before the Executing Court. But, any finding of the Executing Court in that behalf, cannot be said to be final in the given facts and circumstances of the case. There is no reference made by the Executing Court to several 13 wp7006-10.doc aspects which have been referred to by me. It is not the case of the petitioner that the findings in para 10 of the order of the Executing Court would conclude the issue. In fact, if para 10 is perused, it is clear that the Executing Court referred to one Nondani Rasta Pustak in the year 1987-89 and the entries therein. There, according to the Executing Court the Mahad-Pandharpur road is recorded as Gram Panchayat property. But, according to the Executing Court, there is no reference made in the said entry to Survey No.269A, Gat No.377 or City Survey No.1297. This very finding would show that a competent Court will have to determine whether the entries in this Nondani Rasta Pustak are conclusive and whether the property mentioned therein as belonging to Gram Panchayat is same and tallies and confirms with these Survey numbers. A reference to the City Survey records and to the decree passed in Regular Civil Appeal No.406 of 1994 is a matter which itself demands indepth enquiry. It will not be possible for this Court, therefore, to rely on the Executing Court’s order dated 24th August 2010 and hold that the same concludes the issue of the right, title and interest in the said immovable property. At the most, this order could be said to be rejecting the third party intervention of the Gram 14 wp7006-10.doc Panchayat. A reading of this order, does not, therefore, in my opinion conclude the matter. 17 Once such is the conclusion reached by me, then, all the more the petitioner will have to go to the competent Civil Court and this writ petition is not his remedy. If the action of the Gram Panchayat calling upon the petitioner to remove encroachment or obstruction on public road is sought to be challenged by asserting that the road or the property is not a public property or a public road, but, a private property, then, the petitioner must approach such Court and unless and until he gets declaration in his favour, he cannot restrain the Gram Panchayat from carrying out its duties and functions under the Bombay Village Panchayat Act. Ultimately, the matter is of a public road and it is in public interest and for public convenience that the issue is resolved expeditiously. Keeping such a petition pending and ultimately, holding that this Court will not be in a position to go into disputed questions of fact would only delay the matter. Such a conclusion must be recorded at the earliest and that would serve public interest. After keeping this petition pending in this Court for years together and thereafter rendering such a 15 wp7006-10.doc finding would neither assist the petitioner nor the respondents. On the other hand, if ultimately the issue is resolved in favour of the respondents, then, for all these years the people of the village and in the vicinity and those affected by want of public road would be prejudiced. 18 For all these reasons, I am holding that this writ petition is not the remedy of the petitioner if he desires to raise the issue of his right, title and interest in his immovable property. It is disposed off, but, with liberty to the petitioner to approach a competent Civil Court and file substantive proceedings so as to assert his right, title and interest in the property. It is clarified that the provisions of the Bombay Village Panchayats Act, 1958 and particularly, section 53 will not present any difficulty in so far as the civil suit is concerned. Although, reliance is placed on Sections 180 and 181 of the Bombay Village Panchayats Act, 1958 from the same, it cannot be held that a suit on title would be straightaway not maintainable. In such circumstances, apprehension of the petitioner that the Gram Panchayat will raise an objection to the maintainability of the suit 16 wp7006-10.doc and, therefore, such a suit will not be entertained is baseless. All that Sections 180 and 181 contemplate is bar of action against Panchayat in respect of anything in good faith done under the Act or any rule or by-law. However, sub-section 2 of section 180 clarifies that an action can be brought against the Panchayat after a proper notice in terms of the sub-section 2 of section 180 is given. In these circumstances, the apprehension is without any basis. 19 In the result, the writ petition is disposed off by granting relief to the petitioner to adopt proceedings of the nature stated above. To enable the petitioner to do so, the ad-interim order dated 3rd September 2010 granted by this Court shall continue for a period of two months. Needless to state that it will be open for the petitioner in such a suit to make application for interlocutory relief and equally open for the Gram Panchayat and respondents to oppose the same. All contentions in relation to such an application so also on the merits are kept open. It is only with a view to highlight the controversy that the contentions of both sides have been noted and this Court has not expressed any final opinion thereon. 17 wp7006-10.doc 20 Writ petition is disposed off in the above terms. No costs. (S.C.DHARMADHIKARI, J)