1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Letters Patent Appeal No.227 Of 2010 In Writ Petition No.2952 Of 2009 Gangadhar Kashinath Turkane And 22 Others. .. Appellants. Versus The State of Maharashtra & Others. .. Respondents. -------- Shri. P.M. Shah Senior Counsel with Shri. S.P. Shah Advocate for appellant. Shri. N.B. Khandare, Government Pleader with Shri. V.D. Rakh, Assistant Government Pleader for respondent Nos.1 to 3. Shri. R.N. Dhorde, Advocate for respondent No.4. Shri. V.D. Hon, Advocate for respondent No. 5. -------- With 2 Letters Patent Appeal No.229 of 2010 in Writ Petition No.1704 Of 2009 Chandanmal s/o Gopaldas Lokchandani, Deceased through his son Jaykumar S/o Chandanmal Lokchandani & Another. ... Appellants. Versus The State of Maharashtra And Others. ... Respondents. ----- Smt. Madhaveshwari D. Thube-Mhase, Advocate for appellants. Shri. N.B. Khandare, Government Pleader with Shri. V.D. Rakh, Assistant Government Pleader for respondent Nos.1 to 3. Shri. R.N. Dhorde, Advocate for respondent No.4. Shri. V.D. Hon, Advocate for respondent No. 5. ------ With Letters Patent Appeal No.231 of 2010 in Writ Petition No.5451 Of 2009 3 Somnath s/o Ganpat Kolapkar... Appellant. Versus The State of Maharashtra And Others. ... Respondents. ----- Smt. Madhaveshwari D. Thube-Mhase, Advocate for appellants. Shri. N.B. Khandare, Government Pleader with Shri. V.D. Rakh, Assistant Government Pleader for respondent Nos.1 to 3. Shri. R.N. Dhorde, Advocate for respondent No.4. Shri. V.D. Hon, Advocate for respondent No. 5. ------ With Letters Patent Appeal No.232 of 2010 in Writ Petition No.1705 Of 2009 Sayyed Ratanbhai Sayyed Since deceased through his legal heirs Mahmood Sayyedbhai Sayyed And Others. .. Appellants. Versus 4 The Tahsildar, Rahata Taluka Rahata, District Ahmednagar And 14 Others. .. Respondents. ------- Shri. V.J. Dixit, Senior Counsel with Shri. L.V. Sangit, Advocate for appellants. Shri. N.B. Khandare, Government Pleader with Shri. V.D. Rakh, Assistant Government Pleader for respondent Nos.1 to 3. Shri. V.D. Hon, Advocate for respondent No. 3. Shri. R.N. Dhorde, Advocate for respondent No.4. ------- CORAM: NARESH H PATIL & K.K. TATED, JJ. Order reserved on : 08th September 2010 Order pronounced on : 15th September 2010 ORDER (PER NARESH H PATIL, J.) 1) These appeals are being disposed of together as common questions of facts and law are involved. 5 2) The appellants challenge the order passed on 9th March 2009 by the Civil Judge, Senior Division, Kopergaon in Regular Darkhast No.5 of 1990. The Civil Judge upheld the objections raised by the judgment debtors and declared that the compromise decree which was arrived at between the parties in the proceedings of Regular Civil Suit No.600 of 1976 has become inexecutable and infructuous. The Regular Darkhast therefore was disposed of. 3) The appellants filed Writ Petitions Nos.5451 of 2009, 1704 of 2009, 1705 of 2009 and 2952 of 2009 against the order passed by the executing Court. The learned Single Judge finally decided the writ petitions by common judgment and order on 5th July 2010 by allowing the petitions partly. 6 4) As the learned Single Judge had mentioned factual background of the dispute in detail we find that, it would not be necessary to repeat the factual details which are part of the record. 5) We heard the learned counsel appearing for the respective parties extensively. Perused the record placed before us, the judgments cited by the learned counsel appearing for the respective parties, the orders passed by the Civil Judge and the learned Single Judge and other relevant orders annexed to the proceedings of the appeals. It is not disputed that Regular Civil Suit No.600 of 1976 was filed by three persons as plaintiffs for themselves and other shop keepers in Survey No.1/1-A of village Shirdi against the State, the Tahsildar Kopergaon, District Ahmednagar and Sai Baba Sansthan, Shirdi, Taluka Kopergaon. The plaintiffs had 7 prayed for following reliefs : (A) Declaration that the plaintiffs are the lawful tenants of the suit survey number stated above, and the defendants be restrained by perpetual injunction not to take possession of the suit premises, otherwise than in due course of law; (B) Full cost of the suit be awarded to the plaintiffs from the defendants. The parties filed written compromise memo on 20-8-1979. 6) It is not disputed that village Shirdi became a pilgrimage centre on account of Shri. Sai Baba Samadhi and other places around it. It is a matter of common knowledge that devotees in lacs are visiting the place and their number is multiplying every year. It is a matter of fact that Shirdi is now on the national and international arena as regards its devotees are concerned. 8 7) The question which was dealt with by the learned Single Judge was in respect of as to whether the decree passed in terms of compromise entered into between the parties in the year 1979 had become inexecutable and infructuous. From the record we find that before the learned Single Judge disposed of the petitions finally the matter was adjourned from time to time for verifying and confirming the fact situation and the ground realities. The learned Single Judge made efforts to verify even as to whether the shop keepers could be accommodated somewhere else and if not whether they could be compensated alternatively. From the judgment and order passed by the learned Single Judge we noticed that, the learned Single Judge observed that the petitions need to be considered under Article 226 of the Constitution of India and in the fact situation of the case the learned 9 Single Judge invoked extraordinary writ jurisdiction to meet the ends of justice which was necessary to shorten the litigation otherwise such a long drawn litigation would not see the terminal end in near future. The learned Single Judge even invoked his powers under Section 151 of the Code of Civil Procedure to meet the ends of justice. 8) Some of the shop keepers whose shops are still located in the same place are naturally reluctant to leave the place and shift to some other place at some distance as their proximity to the temple premises is financially beneficial to them. 9) During the course of hearing of the suit one Chandanmal Gopaldas Lokchandani (deceased) through his son Jaykumar Chandanmal Lokchandani, the plaintiff in the suit, had moved an application at Exhibit 149 in Regular 10 Darkhast No.5 of 1990 filed by the plaintiff, after Special Darkhast No.1 of 1990 was filed by the original defendant No.3 Shri Sai Baba Sansthan Shirdi. An order of status quo was passed but on 7th May 2004 it was alleged that the respondents – State authorities again threatened the plaintiffs to vacate the shops from the suit land. On 19th May 2004 Collector filed reply opposing the application at Exhibit 149 and it was contended that the compromise was illegal and it was signed on behalf of the Government without any sanction / approval prior in time. The Civil Judge Senior Division by his order dated 21st May 2004 allowed the application at Exhibit 149 partly by protecting 45 shop keepers mentioned in Schedule ‘B’ of the compromise decree till the judgment debtors make temporary adjustment of their shops in triangular portion which was adjacent towards western side of the proposed 11 building in the suit land. The Civil Court did not grant any protection to the remaining 56 shop keepers. They challenged the order passed by the trial Court in Regular Civil Appeal No. 37 of 2004 which came to be dismissed as not maintainable on 28th May 2004 by the Additional District Judge Kopergaon. The parties preferred writ petition against these orders bearing Writ Petition No.3813 of 2004. 10) The learned Single Judge (Coram: B.H. Marlapalle, J.) by order dated 19th July 2004 rejected the petition summarily by vacating ad interim order. Letters Patent Appeal was filed against the said order of the learned Single Judge being LPA No.104 of 2004. By a judgment and order dated 1st February 2005 a Division Bench (Coram: N.V. Dabholkar and A.B. Naik, JJ.) dismissed the appeal as not maintainable. Special Leave Petition (Civil) No.2098 of 2005 against the said judgment and order was 12 preferred before the Apex Court. By an order dated 28th February 2005 the Apex Court dismissed the Special Leave Petition. 11) The learned Single Judge while dealing with the issue though at interim stage in the proceedings of Writ Petition No.3813 of 2004 observed in Para 7 of the order that “the plaintiffs filed Special Darkhast No.5 of 1990 by way of counter blast and this showed their determination to continue on the suit land by hook or by crook; as they refused to occupy the newly constructed shops, the plaintiffs’ rights under the so called compromise decree have been extinguished. They have defeated the decree by their own acts and now the decree has become inexecutable. Under such circumstances none of the plaintiffs can claim protection beyond what has been granted by the trial Court in the impugned order.” 13 12) We would briefly refer to the substantial issues raised by the learned counsel appearing for the contesting parties. Learned Senior Counsel Shri. V.J. Dixit appearing for appellants in LPA No.232 of 2010 submitted that, the defendants - public authorities deliberately frustrated the decree. The appellants were and are not encroachers of the suit premises. The appellants are denied protection of Article 21 of the Constitution of India. Inspite of alternate site being available the appellants were denied occupation of said site. The writ petitions and the appeals are filed in representative capacity on behalf of 45 persons. The Counsel urged that the learned Single Judge erred in arriving at conclusion that the decree has become inexecutable. 13) The learned Senior Counsel Shri. P.M. Shah appearing for appellants in LPA No. 14 227 of 2010 submitted that the decree is executable as the suit is mainly against the State authorities. The Municipal Council was intervener. The respondents are wrongly assuming that the compromise decree could be utilized as eviction decree. The counsel submitted that none of the authorities - the respondents and other public authorities were instrumental in dispossessing the persons who were not encroachers. The counsel questioned authority of the respondents who threatened the appellants with dispossession in total disregard to the procedure established by law. The learned Counsel would submit that it was the Government which did not discharge its obligation in providing alternate shops to 31 persons and open place to 25 persons who were occupying the said premises. The counsel while referring to the Government Resolution in respect of provisions of Bombay Highways Act, 15 1955 submit that, the need to widen the road in the interest of general public could not be utilized to defeat the decree. It was the submission of the counsel that the appellants are still in lawful possession of the suit premises and they can be dislodged only in accordance with law. The livelihood of the appellants since generations is dependent due to occupancy of shops. Therefore in the strict legal sense and even going by equities, the view adopted by the trial Court and the learned Single Judge was erroneous. 14) Both the learned Senior Counsel submitted that though the learned Single Judge had moulded the relief by exercising powers under Article 226 of the Constitution and Section 151 of the Code of Civil Procedure by granting compensation to the affected parties but the said solution could not establish that 16 the decree in the real sense had become inexecutable. 15) The learned counsel Smt. Madhaveshwari Thube-Mhase appearing for appellants in LPA Nos.229 and 231 of 2010 urged that giving no objection to the demolition of the shops would not mean that the appellants had waived their right to continue to be in possession of the suit shops. The open place which was to be allotted to the 25 persons could be allotted even at this juncture by the respondents. The counsel submitted that the learned Single Judge though made an appreciable attempt to mould the relief by awarding compensation but there is no firm basis to award compensation to the appellants which was too meagre and, in the facts of the case, it was submission of the counsel that only solution and the real 17 compensation would be that the appellants are allotted shops and place strictly in tune with the compromise decree. The counsel submitted that the sites, mentioned as Reservation Nos.9 and 10 are still available where the appellants could be accommodated. 16) The learned counsel Shri. V.D. Hon appearing for the Municipal Council Shirdi submitted that already 56 persons had lost their possession long back. 36 out of 100 persons are holding their possession. In the light of the provisions of the Bombay Highways Act, 1955, the Maharashtra Regional and Town Planning Act and in view of the development plan of Shirdi Municipal Council the shops in the triangular portion cannot be constructed. The counsel referred to various orders passed by this Court and even site map to demonstrate that practically in the light of the total change in the fact situation, location and 18 need, the compromise decree which was arrived at between the parties in the year 1979 has become inexecutable. The learned counsel submitted that the Letters Patent Appeals against the order passed by the learned Single Judge are even not maintainable. The demolition of 56 shops was not even challenged by the shop keepers. 17) The learned Counsel Shri. Hon on instructions specifically submitted that, the triangular portion which was reserved for garden and shopping complex would be utilized for road widening and in no case shopping complex would be permitted to be constructed by the planning authority. 18) The learned counsel Shri. R.N. Dhorde appearing for Shri. Sai Baba Sansthan, submitted that till the year 1990 the decree was not executed. The decree does not bind the 19 Municipal Council. The decree was signed on 20-6-1979. Around 31 shops were allotted but the persons who were allotted the shops did not take steps to occupy the shops. The shops were in dilapidated condition and, therefore, by consent of the appellants, the shops came to be demolished. The parties are therefore estopped from raising any grievance that alternate shops were not made available to them. The appellants are responsible for the conduct and for making the decree inexecutable. The appellants did not file application to execute the decree and it was only after the Sai Sansthan filed application for execution, the plaintiffs realized and by way of counter blast filed an application for execution of the decree. 19) The Counsel submitted that the Court had taken spot inspection before passing 20 the order and thereafter reached appropriate and reasonable conclusions in recording sound finding that the decree has become inexecutable and infructuous. The Counsel placing reliance on the observations made by the learned Single Judge (Coram: B.H. Marlapalle, J.) in the order dated 19th July 2004 passed in Writ Petition No.3813 of 2004 submitted that the decree had become inexecutable. The learned counsel referred to Clauses 6,7 and 9 of the compromise memo. 20) Shri. Dhorde, counsel, submitted that the learned Single Judge, in the peculiar facts and circumstances of the case, had done a balancing act under extraordinary writ jurisdiction by moulding the relief and by granting compensation which was reasonable and not meagre one. The counsel submitted that though initially the Sai Sansthan had 21 challenged the order passed by the learned Single Judge in granting compensation, but on written instructions, those Letters Patent Appeals came to be withdrawn as not pressed. The counsel submitted that though the Sai Sansthan was to share 50% of the liability of the compensation but, in the interest of the devotees for whom adequate space around the Samadhi is required, the Sansthan deposited 100% amount as directed by the learned Single Judge to the tune of Rs.2,19,00,000/- (rupees two crore Nineteen Lacs) in Court. The counsel submitted that there were instances in the State that due to heavy rush of devotees in the temples, large number of devotees had to lose their lives and the Shirdi Sansthan does not wish that any such event around the pious place would take place. Therefore, in the public interest of lacs of devotees the Sai Sansthan, the State Government and the public 22 authorities had resorted to steps which could not be sabotaged under the shield of compromise decree which is inexecutable. 21) On behalf of the State the learned Government Pleader Shri. N.B. Khandare has referred to the order passed by the learned Single Judge in Writ Petition No.3813 of 2004 which refused order of injunction to 56 shop holders whereas 45 shop holders were protected. The learned Government Pleader submitted that concurrent findings have been reached by the trial Court and the learned Single Judge on the issues which are raised before this Court. Considering the scope of Letters Patent appeal the appellants have failed to make out a prima facie case for admission of the appeals. The trial Court had exercised powers in view of Section 47 of the Code of Civil Procedure. None of the parties, 23 according to the Government Pleader, had raised issue that the trial Court is not empowered in law to hold that the decree has become inexecutable. Therefore, a question arises that in the peculiar circumstance of the case, whether the decree had become inexecutable. In view of the fact that alternate land and shops are not available, the plea raised by the appellants now after a gap of more than quarter century cannot be accepted by the State. The Collector had filed affidavit-in-reply before the learned Single Judge which was relied upon by the learned Government Pleader. Survey No.170 is not available now for accommodating any of the appellants. If appellants find that some of the Government officials or public authorities were responsible for frustrating the decree then the appellants may resort to appropriate alternate remedy in law, if permissible. 24 22) In reply learned Senior Counsel Shri. V.J. Dixit submitted that alternate site No.10 is still available which is a Government property. The appellants could be accommodated there and till then they be continued in possession. 23) The learned counsel appearing for the appellants, in support of their contentions, have placed reliance on the following reported judgments : (a) Samir Sobhan Sanyal v. Tracks Trade Private Ltd., (1996) 4 SCC 144. (b) Ramdas Vaishnav v. Jayant Rane, 1992 (1) Mh.L.J.425; (c) Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769; (d) Krishna Laxman Yadav v. Narsinghrao Vithalrao Sonawane, 1973 BCI 32; (e) Municipal Corporation Ludhiana v Inderjit Singh, (2008) 13 SCC 506. 25 24) The learned counsel appearing for the respective respondents in support of their contentions have placed reliance on the following reported judgments : (a) Vidya Sagar v. Sudesh Kumari, AIR 1975 SC 2295; (b) Writ Petition No.3174 of 2005 (Kamlakar Kote v. The State) decided on 16-7-2007; (c) Sunder Dass v. Ram Prakash, AIR 1977 SC 1202; (d) Durga Prasad v. Naveen Chandra, (1996) 3 SCC 300; (e) Deepa Bhargava v. Mahesh Bhargava, (2009) 2 SCC 294. 25) We have considered pros and cons of the case, the fact situation, the site plans, locations of Samadhi and the reasoning adopted by the Court. We do not find that the concurrent findings of fact reached by the Courts are highly erroneous or perverse. The 26 learned Single Judge has given a detail account of the narration of events, which provide a clear picture of the past and the present events. The real question faced by the Court was not as to who was at fault but as to whether the compromise decree arrived at between the parties had become inexecutable or infructuous. In ascertaining the issue the Court was permitted to take into account subsequent events. The Court accordingly took notice of subsequent events. Change in circumstances, change of law, legal status and rights of the parties have been taken into consideration by the Court to ascertain as to whether the decree has become inexecutable. In the peculiar facts and circumstances of the case, the trial Court and the learned Single Judge had taken reasonable and sound view of the matter. The learned Single Judge in para 13 of the judgment observed that the oral 27 evidence of the parties would show that they simply attempted to play “blame game” knowing well that the mutual obligation could not be performed due to multiple reasons. 26) It is a matter of fact that about 56 persons had already lost their possession and, according to the counsel, they did not challenge their dispossession. The appellants who were to be accommodated in 31 shops and were to be allotted open place gave no objection for demolition of their shops as they had become dilapidated. It may sound convincing that by giving no objection the appellants did not surrender their rights or waived their rights emanating from the compromise decree. But no convincing explanation is coming forward as to why the parties did not file application for execution of decree filed in the year 1979 till the year 28 1990 that also after execution proceeding was filed by the defendant No.3 – Shri Sai Baba Sansthan. 27) Village Shirdi which was a small place was rapidly growing. This was known to everybody including the parties to the suit. Gram Panchayat Shirdi was converted into Municipal Council. Development plans were prepared and sanctioned. As the time passed need was felt to widen the road, make more facilities for the devotees whose number was increasing in lacs every year. In spite of the same, the parties to the suit, more particularly the plaintiffs, did not take diligent steps to execute the decree at an appropriate time. Due to this conduct, the situation reached alarming stage where the parties found that it was now impossible to execute the decree. These subsequent events 29 weighed with the Courts coupled with the interests of lacs of devotees, their safety, maintenance of law and order. In view of provisions of Section 47 of the Code of Civil Procedure the trial Court was entitled to take into account these subsequent events, the conduct of the parties and the situation created by various factors in reaching conclusion as to whether the compromise decree had become inexecutable. 28) Considering the record, the reasonings and the findings of the Court, we are of the view that the compromise decree had become inexecutable and, therefore, both the Courts concurrently held accordingly. 29) The learned Single Judge had moulded the relief in the fact situation of the case and with the available data and the 30 material awarded compensation to the affected parties which could not be termed to be unjust and unreasonable. The Shirdi Sai Baba Sansthan had also demonstrated promptly their approach to the problem by depositing the entire amount of compensation granted by the learned Single Judge in the Court to the tune of Rs. 2,19,00,000/- (Rupees two crores nineteen lacs). 30) We have perused the judgments cited supra. Each case will have to be decided in its peculiar fact situation, circumstances, subsequent events and various factors which are relevant in ascertaining as to whether a decree is executable or not. The learned Single Judge had even observed in para 18 of the judgment that “This is a peculiar case in which the decree has become inexecutable on account of failure of both the parties to 31 perform their mutual obligations.” The learned Single Judge had exercised powers under Article 226 of the Constitution of India and Section 151 of the Code of Civil Procedure in awarding the compensation. The Court had moulded the relief so as to meet ends of justice. In the fact situation we find that the order passed by the learned Single Judge could not be held to be erroneous, prejudicial or perverse. 31) For the reasons stated above, we are not inclined to entertain the appeals. 32) The Letters