Sayyed Ratanbhai Sayeed (D)Th. Lrs & Ors vs Shirdi Nagar Panchayaat & Anr

The appellants, ostensibly small scale shopkeepers located in the vicinity of the internationally revered seat of Shirdi Sai Baba at Shirdi Taluq, Rohata, District Ahmadnagar, Maharashtra, face ouster from their sites, being entrapped in the dictates of events since after their suit had been decreed on compromise in the year 1979, securing their right of rehabilitation in the same locality.

2. The contextual facts encompass the issues in all the appeals and permit analogous adjudication.

3. The five appeals impeach the consecutive adjudications in sequential phases affirming the displacement of the appellants by acknowledging the mandate of the relevant Town Planning and Municipal Laws and the overriding public interest as perceived, their decree being construed to have been rendered inexecutable by the intervening developments. Their possession, however remains protected by the interim order of status-quo granted by the High Court and continued in the instant proceedings subject to the liberty granted to the respondent- Shirdi Nagar Panchayat (for short, hereinafter to be referred to as “Nagar Panchayat/Municipal Council”) to take any action in accordance with law, in connection with the widening of the concerned road or removal of encroachments, in terms of the order dated 13.12.2010 passed in SLP (C) Nos. 27988 of 2010, 29683-29685 of 2010 and 28235 of 2010.

5. The genesis of the eventful factual background is traceable to a one time small village named Shirdi with minuscule population. It rose to fame and eminence in view of the shrine of Sage Sai Baba, viewed as a mortal incarnation of the divine and with time became a pilgrimage centre of worldwide following. Having regard to the increasing number of devotees thronging for offering oblations, small shops grew around the temple, catering to the essentials of the worshippers for their offerings and also their refreshments and conveniences.

6. The plot involved contained in Survey No. 1, Hissa No. 1A 1/1A/2B2 of Shirdi Takula Kopargaon, District Ahmednagar and situated near the Sanctum Sanctorum adjacent to Nagar Manmad Road, prior to 30.8.1974, vested in the then Shirdi Gram Panchayat, which had leased out small parcels of land therefrom to the appellants on rent for carrying on their trades. The land was taken over by the State through the Circle Officer, Rahata on 30.8.1974 and as a consequence, though the appellants were ready and willing to pay the rent, the same was not collected from November, 1974. According to them, though by operation of law, they continued to be the tenants under the State Government and were entitled to retain their possession as before, it transpired with time, as visualised by them, that joint efforts were on, of the official respondents and the respondent- Shri Sai Baba Sansthan, Shirdi (for short, hereinafter to be referred to as “Sansthan”) to forcibly evict them from their plot measuring 30 gunthas.

7. Situated thus and being faced with imminent loss of their only means of livelihood, the appellants instituted Regular Civil Suit No. 600 of 1976, in a representative capacity, on behalf of 45 shopkeepers similarly situated, in the court of Civil Judge (Sr. Division), Ahmednagar seeking a declaration that they were lawful tenants of the parcels in their occupation and also for permanent injunction restraining the defendants therein from taking over possession of the same, otherwise than in due course of law. The State of Maharashtra (Revenue Department), Tehsildar, Kopargaon, District Ahmednagar and Shri Saibaba Sansthan Shirdi, Shirdi, Tal Kopargaon were impleaded as defendants. The averments made in the suit would demonstrate that the appellants then had been possessing premises of sizes ranging from 10’ x 7 ½’ and 12’ x 12’.

10. While the matter rested at that, a “Development Plan” of Shirdi was sanctioned by Notification No. D.P. Shirdi/TPV-IV/7334 dated 15.12.1992 of the Director of Town Planning, Maharashtra State, Pune (hereinafter referred to as the development plan) and enforced it on and from 25.2.1993. Thereby an area of 30 gunthas identified as site No. 13 in Survey No. 1 (as involved in the instant proceedings) was shown to be reserved for garden. As the records testify, by Notification No. TPS-1695/996/CR- 83/97/UD-9 dated 27.3.2003 of the Urban Development Department, Government of Maharashtra, this 30 gunthas of land in site No. 13 was bifurcated into two equal parts, northern half measuring 15 gunthas, shown reserved for “Garden” as site No. 13A and the remaining southern half of 15 gunthas shown as reserved for ”Shopping Centre” as site No. 13B. The notification mentioned that the modification was in terms of the proposal submitted by the Nagar Panchayat which had since been upgraded as Municipal Council by the State Gazette Notification dated 16.6.1999. The Notification also clarified that the Nagar Panchayat in laying such proposal, had complied with the formalities to this effect as stipulated by the Maharashtra Regional and Town Planning Act, 1966 (for short, hereinafter to be referred to as “Act 1966”) and was approved by the Director of Town Planning, Maharashtra State, Pune. In terms of this reorientation, the appellants were in occupation of plot No. 13A, as referred to in the above Notification.

11. In the meantime, at the instance of the Nagar Panchayat, the shops constructed by it on the government land, Survey No. 170 were demolished. Consequently, the arrangement of adjusting 31 shopkeepers out of 56 batch did not fructify. The others were also not allotted any open plot by drawing lots as was contemplated in the compromise decree. As the flow of events would testify, the Executing Court on 19.12.2003 directed maintenance of status-quo of the subject matter of the execution proceedings in view of the ongoing demolition drive resorted to by the State and the apprehension expressed by the appellants to suffer the same fate. Eventually, the Executing Court by order dated 21.5.2004 rendered in RD No. 5 of 1990, held that the compromise decree was binding and executable, the facts in the interregnum notwithstanding and that the defendants/judgment debtors were bound to provide temporary accommodation to the appellants till completion of the construction work in the suit land and consequently restrained them i.e. the defendants/judgment debtors from removing or demolishing the shops of the appellants till their temporary adjustment in the triangular plot in terms of the decree.

12. This view was taken notwithstanding the plea on behalf of the defendants/judgment debtors, that in the face of the development plan and also the proposed widening of the adjacent Palkhi Road within the limits of the Nagar Panchayat, for which a process was afoot for acquisition of land and the overall developmental activities in the area to meet the heavy rush of devotees, their convenience and safety, the decree had become inexecutable with time.

13. Being aggrieved, the State of Maharashtra filed Writ Petition (C) No. 5839 of 2004 in which the Tehsildar, Rahata in his affidavit-in-rejoinder did aver that the land at site No. 13 was vested in the State Government and that the Nagar Panchayat had no authority to develop the same without its approval and permission. Be that as it may, by order dated 31.7.2007, the High Court remanded the matter for fresh consideration by the Executing Court, by setting-aside the order dated 21.5.2004 granting injunction to the appellants. The Executing Court following the remand, vide order dated 9.3.2009, returned a finding that the decree had become inexecutable in the face of the irreversible intervening events. After an exhaustive evaluation of the evidence, both oral and documentary, as adduced before it, it held that in view of the Shirdi town development plan, as well as the precepts of the Bombay Highways Act, 1955 ( for short, hereinafter to be referred to as “Highways Act”) prescribing, inter alia, the margin of clearance of the control line as well as the relevant provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, hereinafter to be referred to as “Act 1965”) as well as Act 1966, along with the initiatives taken in terms thereof, the decree had become inexecutable. It underlined as well that with the phenomenal rise in the number of devotees to the temple and the consequential mounting challenges to the administration like congestion, traffic jams etc. and the accompanying aspects of safety and security of the visiting worshippers in particular and the public in general, it was not feasible to construct a shopping complex as earlier comprehended. On the other hand, it was essential in public interest to implement the development plan which included, amongst others, widening of the adjacent Palkhi Road by removing encroachments thereon as reported. It noticed as well that the triangular plot as well as the site earmarked for the shopping complex did come within the prohibited zone of the control line prescribed by the Highways Act for which no construction thereon was permissible as envisaged by the compromise decree.

14. Being highly aggrieved by this determination, the appellants in batches, filed writ proceedings before the High Court which after an elaborate analysis of the run up of facts concluded that in the singular attendant facts, the decree had become inexecutable on account of the failure of both the parties to perform their mutual obligations. The High Court, however vide order dated 5.7.2010 in categorical terms held that the appellants were neither encroachers nor intruders on the land in occupation. It also noticed that meanwhile the Sansthan had deposited approximately Rs. 3 crores for acquisition of land by the State Government, to shift the shopkeepers from the proximity of the temple to facilitate the implementation of the development work and at the same time rehabilitate them to the extent possible. The High Court with a view to strike a balance between the two competing interests and also to ensure that the shopkeepers are suitably compensated directed, as a rough and ready measure to grant compensation to the shopkeepers @ Rs. 3 lakhs each to those having bigger shops like Hotel, sweet-meat shops etc.) and Rs. 2 lakhs each to those of smaller shops i.e. Flower Vendors, Essence Vendors etc. The State as well as the Sansthan were directed to bear the amount of compensation in equal shares to be deposited within a period of six months. In computing the rate of compensation, the High Court also took note of the sizes of the two categories of shops, 16’ x 16’ (big) and 7’ x 11’ (small).

16. Following this clarification, as aforestated, the Nagar Panchayat issued a public notice being Outward No. NP/Const/KV-11/75/2011 dated 11.4.2001 under Sections 42, 45, 52 and 53 of Act 1966 and under Sections 179,180,187 and 189 of Act 1965 being one directed to the 45 shopkeepers in Schedule ‘B’ in R.D. No. 5 of 1990 i.e. the appellants, intimating them that their sheds on the land referred to therein were illegal constructions used for business purposes. Referring also to the orders dated 13.12.2010 and 28.2.2011 passed by this Court as above, permitting the Nagar Panchayat to pursue its initiatives for removal of encroachments and widening of road in accordance with law, it was elaborated further that the shops of the appellants, in terms of the reports submitted by the Deputy Director, Town Planning Department, Nasik, pursuant to the order of the High Court in W.P. (C) No. 583 of 2004, were coming within 9 meters of the Palkhi Road. It was mentioned as well, that the constructions of the appellants were intruding on the fifteen meters wide road towards the temple and for this, the development scheme of the road could not be implemented. It was highlighted that in view of such impediments, the devotees and the public at large were being seriously inconvenienced, while taking the Nagar Manmad Road towards the temple. While stating as well, that the plot No. 13A, in terms of the development scheme, was reserved for garden and that the construction of the appellants have adversely impacted upon the said scheme, it was underlined as well that encroachments by them, were also within 37 meters from the centre of the State Highway No. 10, Nagar Manmad Road, in violation of the construction line and control line. The notice specified that commercial use of land within the said zone was prohibited. The appellants were called upon thereby, to remove the illegal and unauthorized constructions in violation of the provisions of Act 1965 and Act 1966 within 30 days of the receipt of the notice failing which it was conveyed, that the same would be demolished by the Nagar Panchayat.

17. The appellants against this notice filed a suit being RCS No. 139 of 2011 in the court of Civil Judge (Sr. Division), Kopergaon, seeking annulment thereof and perpetual injunction against the Nagar Panchayat and the State as defendants. The prayer for temporary injunction though refused by the trial court, the appeal before the District Judge-II was allowed and by order dated 11.5.2011, the Nagar Panchayat was restrained, by an ad-interim injunction from interfering with the appellants’ possession of the suit property.

18. The Nagar Panchayat in its turn approached the High Court with a writ petition in which by order dated 9.6.2011, the order of ad-interim injunction was maintained but the trial court was directed to decide the application for injunction on its own merits within a period of one month. The trial court by order dated 17.10.2011 rejected the application for temporary injunction holding that the appellants had failed to establish a prima facie case or balance of convenience in their favour though irreparable loss was not unlikely. The appeal filed by the appellants against this determination failed on 25.9.2012. The First Appellate Court in dismissing the same took note, inter alia, of the pendency of the C.A. No. 3154 of 2011 on the related issues and observed that to decide the same, evidence would be necessary and required the trial court, to address the same accordingly.

29. In the interregnum, the development plan of Shirdi had been sanctioned by the Director, Town Planning, Maharashtra on 15.12.1992 to come into effect from 25.2.1993. As per the said development plan, the area measuring 30 gunthas included in Survey No. 1, in occupation amongst others of the appellants was reserved for garden. On the directives of the State Government, however and on the compliance of the legal formalities under the Act 1966 as claimed, a modification thereto was effected and this plot was bifurcated into two equal halves of 15 gunthas each, the northern part (13A) being reserved for ‘garden’ and southern part(13B) for shopping centre. The appellants are in occupation of the plot 13A in terms of the modified development plan. This was as far back as on 27.3.2003. Presumably, the shopping complex contemplated under the compromise decree in which the appellants were eventually to be accommodated did not come up in view of this development plan. However, explanation for the inaction of the respondents/defendants for over two decades is not forthcoming.

36. The Act 1965, as its preamble would disclose, is to unify, consolidate and amend the law relating to Municipal Councils and to provide for constitution of Nagar Panchayat and Industrial Townships in the State of Maharashtra. Prior to the amendment thereto in the year 1994, the statute with the same objectives was relatable to municipalities in the State of Maharashtra. The expressions “council”, “local authority”, “Municipal Area”, “Nagar Panchayat”, “Public Street”, “a smaller urban area” as defined in Sections 2(6), 2(20), 2(24), 2(25A), 2(42) and 2(47A) respectively are extracted hereinbelow:

2(19) "Planning Authority" means a local authority; and includes,-

48. As would be evident from hereinabove, the building line was marked at 20 meters from the centre of the State Highway & Main State Highway and the control line, 37 meters therefrom.

53. As the recorded facts demonstrate, the growingly felt exigency of clearing the area of the structures and encroachments in conflict with the statutes involved is in the preponderant public interest and it would thus be apparently inexpedient to trivialize the aspects of safety, security and convenience of the burgeoning devotees and the local population as persistently highlighted by the Respondents. Any contrary view, in disregard to this otherwise salutary cause, would signify a retrograde step in the context of greater public import.

55. The emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine – res communious i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero “the good of the people in the chief law”.

61. The consequence of the appellants being uprooted from their present sites of business, to reiterate would spell an overall dislocation in their lives. That many or all of them have buildings elsewhere in the locality, assessed to municipal tax, in our comprehension, cannot fully neutralize this fallout. The appellants have been conducting their business at the present sites for over 45 years and understandably over the time, have built up the same with accompanying goodwill and reputation. Their eviction would assuredly eventuate a human problem. Nevertheless for the cause of paramount public interest, their eviction is unavoidable.

63. However, in case the endeavour to identify an alternative plot does not yield any result inspite of sincere efforts, the appellants would then be entitled to adequate monetary compensation as quantified herein.

64. It is a matter of record and as has been noted by the High Court, the appellants occupy two categories of plots i.e. 16’ x 11’ and 7’ x 11’, where trade/business is being carried on. Though monetary compensation, ipso facto, on a consideration of all attendant factors may not be an exact substitute of the benefits presently enjoyed with the future prospects, we are of the view that, having regard to the permissible ponderables and also the passage of time in between, a lump sum of Rs. 20 lakhs and Rs. 15 lakhs each respectively for the bigger and smaller shops/stalls, as noted hereinabove would be a reasonable palliative to the appellants. We order accordingly. It is reiterated that the compensation, as indicated hereinabove, would be payable to the appellants only if an alternative site is not feasible. The entire process on both counts, however should be completed within a period of six weeks herefrom. The State Government and the Sansthan would bear the amount of compensation, payable in equal shares and would deposit the same in the Bombay High Court within the period of six weeks aforementioned. The amount already deposited by the Sansthan in terms of the High Court’s order, if not withdrawn, shall be adjusted against this amount. The allotment of the new site/deposit, as directed, would be a condition precedent for further action in terms of the impugned notice. It is also ordered that on the deposit being made with the High Court, the Registrar General of the High Court would make suitable arrangements for disbursement thereof to the appellants as due to them, as expeditiously as possible, however on proper identification.

65. The appeals are dismissed, however subject to the above terms. No costs.

FEBRUARY 22, 2016.