1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8049 OF 2010 1 Annasaheb s/o Haribhau Gondkar, aged: 35 years, Occ: Labourer; 2 Sow. Mangal Dadasaheb Gondkar, age: 36 years, Occ: Household; 3 Maruti s/o Namdeo Bagal, aged: 54 years, Occ: Labourer; 4 Padmabai Ambadas Goraksha, age: 70 years, Occ: Household; 5 Uttam s/o Gorakshnath Jadhav, age: 47 years, Occ: Labourer; 6 Smt.Bebi Vishwanath Devkar, age: 60 years, Occ: Household; 7 Parvatabai Rangnath Lanke, age: 70 years, Occ: Household; 8 Machindra Waman Sable, age: 42 years, Occ: Driver; 9 Kalavati Kisan Jadhav, age: 63 years, Occ: Household; 10 Shantilal Khushalchand Lodha, age: 65 years, Occ: Business; 11 Tarabai Kacharu Pawar, age: 60 years, Occ: Household; 2 12 Ramdas Khanderao Chavanke, age: 29 years, Occ: Business; 13 Suresh s/o Khandrao Chavanke, age: 38 years, Occ: Business; All Nos. 1 to 13 R/o Laxminagar, Shirdi, Tq.Rahata, District Ahmednagar. Petitioners Versus 1 Collector, Ahmednagar, Collector Office, Ahmednagar. 2 The Sub Divisional Officer, Shrirampur Sub Division, Shrirampur, District Ahmednagar. 3 Tahsildar, Rahta, Tq.Rahata, District Ahmednagar. 4 The Chief Officer, Shirdi Nagar Panchayat, Shirdi, Tq.Rahata, District Ahmednagar. 5 The Mayor, Shirdi Nagar Panchayat, Shirdi, Tq.Rahata, District Ahmednagar. Respondents Mr.R.N.Dhorde, advocate holding for Mr.V.R.Dhorde, advocate for petitioners. Mr.K.J.Ghute Patil, A.G.P. for Respondents No.1 to 3. Mr.V.D.Hon, advocate for Respondents No.4 & 5. CORAM: R.M.BORDE, J. Reserved on : 23 rd September, 2010. 3 Pronounced on: : 12 th October, 2010. ORDER: 1 Petitioners – original plaintiffs are raising exception to the concurrent judgments recorded by the Courts below. 2 Petitioners – original plaintiffs instituted Regular Civil Suit No.192/2010 claiming decree of injunction against defendants - respondents herein restraining them from dispossessing plaintiffs or demolishing the construction raised by them. Plaintiffs also pray for quashment of notices dated 10.06.2010 issued by the Chief Officer, Municipal Council, Shirdi, in respect of demolition of construction raised by them. 3 Suit is directed against the Collector, Sub Divisional Officer, Tahsildar, Chief Officer and President of Municipal Council, Shirdi. Plaintiffs claim that they are in possession of part of land S.Nos.3 & 4 (Old S.Nos.1/2) situate at Shirdi, Taluka Rahata. They have constructed houses on the suit land and are in possession since prior to establishment of the Municipal Council. The land belongs to State Government and it has been allotted to the plaintiffs. Plaintiffs claim that they have raised construction over Government land and the Municipal Council has no authority to demolish the construction raised by them over the Government land. Plaintiffs are paying taxes to the Municipal Council and their names also do appear in the assessment record. Defendant – 4 Municipal Council has issued notices requiring removal of construction raised by them. Those notices are illegal and without any authority in law. Plaintiffs, as such, have approached the Civil Court claiming relief as stated above. 4 In the pending suit, plaintiffs presented an application at Exhibit-6 claiming an order of temporary injunction against defendants. Application tendered by plaintiffs was opposed by the Municipal Council as well as State Government. It is the contention of Municipal Council as well as State Government that the construction raised by plaintiffs, although is on Government land, is on the part of State High-way. It is contended that because of the encroachment committed by plaintiffs, entire width of High-way is not being put to use. The construction is causing hindrance to the traffic and is also an impediment in developing the High-way. It is contended that plaintiffs are encroachers over the property and construction raised by them is without securing permission from the Municipal Council. They have no right to remain in possession over the property. The notices issued by the Municipal Council are legal and proper and as such, no interference, be caused in the matter by granting protection to the plaintiffs. 5 The trial Court granted ad interim injunction during pendency and disposal of the application before trial Court, however, after hearing both the sides, learned Judge of the trial 5 Court was pleased to reject the application in view of the order passed on 03.07.2010. The judgment and order passed by the trial Court was subjected to challenge before the District Court in Misc. Civil Appeal No.33/2010. The appeal was heard and disposed of by District Judge-1, Kopargaon, who was pleased to dismiss same in view of the order passed on 24.08.2010. 6 I have perused the application as well as the impugned orders passed by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 7 It is contended by learned Counsel appearing for petitioners – original plaintiffs that they are in possession over the suit property since many years. They are paying taxes to the Municipal Council and their names appear in the assessment record. It is contended that they have been permitted to occupy the Government land and Municipal Council has no authority to direct their eviction. It is contended that the notices are vague and are not capable of being put to implementation. In the alternate, it is submitted that the State Government and Municipal Council have provided alternate accommodation to the occupiers of said property and same treatment needs to be given to the petitioners. It is contended that occupiers of Site No.23 have been rehabilitated in Lakshminagar area. Petitioners, who are similarly situated, also need to be provided with alternate accommodation. It is also contended that the State of Maharashtra has adopted a policy of 6 regularising encroachment over the Government property if the occupier is in possession of the property prior to 01.01.1995. Reliance is placed on the Government Resolution dated 4th April, 2002 and it is contended that the State Government shall be required to consider case of petitioners for regularisation of their occupation of Government property and until such an exercise is undertaken by the State Government, they cannot be directed to be evicted from the Government property. 8 It is contended by the Municipal Council as well as State Government that petitioners – original plaintiffs are encroachers and they do not have any right to continue to remain in possession. The construction raised by them is without prior permission of the Municipal Council. It is specifically contended that petitioners are occupying an area adjoining the State High- way and construction raised by them is within 41.3 meters from the mid line of High-way. Because of the encroachment committed by petitioners over the State High-way, it has become difficult for the State authorities to develop the High-way, which is causing great hindrance in the increasing traffic. Reliance placed by the petitioners – original plaintiffs on Government Resolution dated 04.04.2002 is misplaced as the same has no applicability so far as occupiers of Government property, which is earmarked for development of public utility is concerned. The possession of plaintiffs over the Government property cannot be regularised. So far as claim raised by plaintiffs in respect of rehabilitation is 7 concerned, such a request was not made before the trial Court, however, it was a decision as well as project initiated by “Sai Baba Sansthan”. Petitioners may approach “Sai Baba Sansthan” with appropriate request. It is also contended that petitioners are occupying the property earmarked for development of public utility and they cannot be extended any protection. It is also pointed out that in Lakshminagar area about 101 occupants from Site No.23 were rehabilitated, but the petitioners were not amongst those 101 persons. Petitioners, however, if they have any claim, may approach the “Sai Baba Sansthan”. 9 The trial Court as well as the first appellate Court considered all the contentions raised by the parties in detail. The contention raised by the petitioners that they are occupiers of the Government property with proper permission or sanction is not substantiated by them. The trial Court has observed that plaintiffs have not placed a single document on record to demonstrate that the Government has allotted the land to them for construction of houses. There is also no document placed on record to demonstrate that the construction raised by them is with prior permission of the Municipal Council. It is also observed by the trial Court that none of the documents support the contention of plaintiffs that they are residing in the suit premises prior to 1990 nor anything is filed on record to show that they have constructed their respective houses with permission of the local authority. It also does appear that the construction raised by 8 petitioners is within 41.3 meters from the mid line of the State High-way and it is causing hindrance in developing the State High- way. That, so far as the contention raised by plaintiffs that they shall be extended benefits of Government policy reflected in Government Resolution dated 04.04.2002, also does not bear any substance. Although claim of the petitioners that they are occupying the Government property prior to 01.01.1995 is considered, still the policy decision cannot be extended to them as they are occupying the part of area, which is earmarked for development of public purposes. In view of clause 7 of the Government Resolution, such an encroachment cannot be regularised. 10 Both the Courts below have considered all the aspects of the matter in detail. In exercise of jurisdiction conferred under Article 227 of the Constitution, no interference is called for in the concurrent findings of facts recorded by the Courts below on appreciation of evidence placed on record by the parties. Petition is devoid of substance. 11 Writ Petition stands rejected. (R.M.BORDE) JUDGE ******* adb/wp804910