1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO.123 OF 2010. 1 Ashok Shalikram Jaiswal, age 50 years, occu. Trade, residing at Chikalthana and Jubilee Park, Aurangabad. 2 Jagdish s/o Shalikram Jaiswal, age 38 years, occu. Business, residing at Chikalthana, Aurangbaad. 3 Satyanarayan s/o Ruplal Jaiswal, age 65 years, occu. Agriculture, residing at Chikalthana, Aurangabad. .. APPELLANTS. ( Ori. Plaintiffs ) VERSUS 1 The State of Maharashtra, through the District Collector, Aurangabad. 2 The Tahsildar, Aurangabad. 3 The Commissioner, Municipal Corporation, Aurangabad. .. RESPONDENTS. ( Ori. Defendants ) ... Shri Hemant Surve, Advocate for appellants. ... 2 CORAM : S.S. SHINDE,J. 7th September, 2010. PER COURT: 1. This appeal from order is filed challenging the order dated 23rd August, 2010 passed by the learned Ad hoc District Judge, Aurangabad below Exh.5 in R.C.A. No.184 of 2010. The appellants herein preferred appeal challenging the judgment and decree passed by the 4th Jt. Civil Judge, Senior Division, Aurangabad in R.C.S. No.891 of 2008 dismissing their suit for declaration and permanent injunction, coupled with the application at Exh.5 for stay to the said decree till final disposal of the appeal. 2. The learned Ad hoc District Judge, Aurangabad, on 20th July, 2010 issued notice to the respondents making it returnable on 4th August, 2010 and mean while the parties were directed to maintain status quo so far as demolition and possession is concerned. It appears that after hearing the respondents, the lower appellate Court passed the impugned order. 3 3. The learned Counsel appearing for the appellants submitted that during pendency of the suit, order of status quo was in operation. The learned Counsel for the appellants invited my attention to the various documents which are placed on record along with the appeal from order. The learned Counsel invited my attention to the building permission and also FL-III licence granted and renewed from time to time by the authorities. The learned Counsel also invited my attention to the grant of water supply connection, electricity bills and also the allotment of land to the appellants. The learned Counsel further invited my attention to the Government Resolution dated 4th April, 2002, which is placed on record at page 62, to contend that there is policy of the Government to regularize the encroachment. He also invited my attention to the prayers made in the suit, the replies filed on behalf of the respondents and contended that it is an admitted position that the land to the extent of 60ft.x40 ft. was allotted to the appellants. He further submitted during 4 pendency of the suit, temporary injunction was granted. He further invited my attention to the documents and reply filed by respondents and submitted that it is an undisputed position that the said Kabala of 60’x40’ was in favour of the appellants. The learned Counsel invited my attention to the cross-examination of the witnesses on behalf of the State and also examination-in-chief and invited my attention to certain admissions which are given by the witnesses. He further submitted that during pendency of the matter and court proceedings, the land was allotted to the Civil Hospital and no any order is passed while allotting the land to the Civil Hospital. The learned Counsel further invited my attention to the fact that the issue which was framed in respect of possession of the appellants is decided in his favour and the trial Court has held that the appellants are in possession of the suit premises. He invited my attention to page 86 i.e. notice issued by the Tahsildar and contended that since the area mentioned in the said notice is 60x50, the appellants were compelled to mention the said 5 area before the lower appellate Court. He repeatedly submitted that the area for which he is claiming relief is admeasuring 60’x40’ and the ownership of the appellants was never in dispute. Therefore, the finding recorded by the trial Court that Kabala is not authorized is unwarranted. The respondents have admitted that 60x40 ft. portion was allotted to the appellants. He invited my attention to the grounds taken in the stay petition and the earlier orders passed by this Court in various proceedings and also the order passed by the Division Bench. He invited my attention to the grounds in the appeal from order and the annexures to it and contended that since the trial Court has held that the appellants are in possession of the premises, pending appeal their possession is required to be protected. 4. I have heard the learned Counsel for the appellant at length and also perused the judgment and order impugned in R.C.A. No.184 of 2010. 5. The limited issue which is before this Court is about granting protection to the appellant 6 pending R.C.A. NO.184 of 2010. I have given due consideration to the submissions advanced on behalf of the Counsel for the appellants. Perusal of the reasons recorded by the lower appellate Court would make it clear that the appellants have changed the user of the land. It is an admitted position that in the suit premises there is Permit Room and the appellants are running eating house and permit room. 6. In paragraph 3 of the judgment, the lower appellate Court has taken into consideration submissions of the respondents about user of the land. The Court has referred to the say filed on behalf of the respondents that the land was given to the plaintiff no.3 for residential purpose and the Government is absolute owner of the land. Status quo order was passed by this Court during pendency of the suit. However, the said status quo order is not abided by the appellants and they have carried out the construction over the suit land in Gat No.737 at Chikalthana. The Court has also referred to the say of the respondents that the said suit land and other 7 land has been allotted to the District Civil Hospital, but due to status quo order passed by the High Court, the development work / construction of the said building is held up. The amount of Rs.16,50,00,000/- is lying in the Government Treasury. On perusal of para 4, it appears that, at the time of deciding application, Court has perused written notes of arguments, say and record & proceedings. 8. The lower appellate Court in para 5 observed that there is Exh.133 regarding Kabala of 60x40 ft land allotted to the respondent no.3. However, there is no further progress brought on record on behalf of the plaintiff that further steps are taken and they were handed over the possession of 60x40 ft land. 9. In para 6, the Court has recorded, thus: “6. It is the case of the plaintiff that 60x40 ft. portion land was allotted to plaintiff no.3 to run their family business. But there is nothing on record to show it. Admittedly, the revenue record and copies thereof filed before the lower court show 8 that all that allotments were for residential purpose and not for running any business. Admittedly, the plaintiff is running liquor business in the premises and it their case that the premises were allotted under Kabala for running their family business. There is also no record that at the time of allotment of the land, running liquor shop was their family business. The provision of Section 50 and other provisions of Maharashtra Land Revenue Code and different government circulars, one of which is referred by the trial court in the impugned judgment shows that the Tahsildar-defendant no.2 has every right to issue notice to remove encroachment. The breach of conditions of allotment and change in the user itself prima facie makes the possession of the plaintiffs as of ab encroacher and under the said provision notice Exh.28 issued to the plaintiffs is prima facie valid.” (Emphasis supplied). 10. The appellate Court has also observed that breach of conditions of allotment and change in the user itself prima facie make the possession of the plaintiffs / appellants as of ab encroacher. In para 7, the Court has observed that in none of the suits filed by the 9 Grampanchayat or one of the relatives of the plaintiffs the State was party and therefore, prima facie, it appears that those judgments and decrees are not binding on the government. 11. In para 8 of the order, the Court has observed that prima facie it shows that the plaintiffs are also admitting in one or the other way that their possession is of an encroacher and it is to be regulated and for that purpose alone the amount of Rs.28,650/- was deposited with the defendant no.3. 12. The appellate Court in para 9 has referred to the amount of Rs.16,50,00,000/- has been earmarked by the State Government to construct Civil Hospital in the land including disputed portion. In para 10 the appellate Court has referred to the equitable order passed by the trial Court that the authorities before passing any order, should hear the appellants. It appears that after hearing the appellants and respondents, the Court rejected the application for stay. However, in clause (2) of the order, 10 it is observed thus: “(2) However, it is hereby ordered that respondent no.1 and 2 shall file affidavit of any of their responsible officer to the effect that hearing is given or being given to the plaintiffs before taking any action as contemplated in the judgment and decree passed by the lower Curt.” 13. It is an admitted position that the premises are being used for running liquor business as observed by the appellate Court. There is change of user by the appellants. That apart, in para 9 of the impugned judgment, the appellate Court has observed that huge amount of Rs.16,50,00,000/- has been granted by the State Government to construct the Civil Hospital in the land including the disputed portion. 14. In my opinion, the appellate Court has considered the balance of convenience and rightly held against the appellants. After all, while protecting the interest of an individual, the 11 interest of the society as a whole is required to be seen. The observations in para 9 of the impugned judgment are on those lines. I do not see any infirmity or perversity in the impugned order passed by the lower appellate Court. The appellants have failed to establish case for interim relief. The lower appellate Court has rightly declined to grant the discretionary relief. 15. In view of this, there is no substance in the appeal from order and the same is dismissed. Civil Application, if any, stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*