Sayyed Ratanbhai Say... v. 1-A. Mahmood Sayyedb...

S.V Gangapurwala, J.:— Both these Writ Petitions are based on same set of facts, as such are decided together.

2. The respondent herein has issued notice to the petitioners invoking the provisions of Sections 42, 45, 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966 [For short, ‘M.R.T.P Act’] and Sections 179, 180, 187 and 189 of the Maharashtra Municipal Council Act, so also vide the said notice the respondent had also stated that 15 Meter wide development plan road passes through the affected site, in which the petitioners' shops are situated, so also are affected on the 9 Meter Palkhi road. It is also stated in the notice that the said area is within the control line and no construction within the said 37 Meter of the control line is permissible. The petitioners assailed the said notice by filing Civil Suit bearing R.C.S No. 139 of 2011 and R.C.S No. 302 of 2011. The petitioners have also filed an application for temporary injunction [Exh. 6] in the respective Suits. The trial Court has rejected the said temporary injunction application. Aggrieved thereby the plaintiffs have filed Misc. Civil Appeal before the District Court. The District Court dismissed the said Misc. Civil Appeal. The plaintiffs have assailed the said order in the present Writ Petitions.

3. Prior to these events, initially, these petitioners and some other persons had filed Civil Suit bearing R.C.S No. 600 of 1976 against (1) the State, (2) the Tahsildar, Kopargaon and (3) Shri Saibaba Sansthan, Shirdi. The said Suit was compromised between the parties therein. In the compromise, it was agreed that the State would be the owner of the land i.e S. No. 1 admeasuring 30 Gunthas. The plaintiffs therein were divided into two (2) groups. Schedule ‘A’ consisted of 56 shops and Schedule ‘B’ consisted of 45 shops. The present petitioners are the ones, who were part of Schedule ‘B’. In the said compromise, it was agreed that to the West in the triangular shape area, the shopping complex would be constructed. The said 45 shop owners would vacate the site. They were to vacate the space on which their shops were situated and Shri Sai Baba Sansthan on getting that land from the Govt. in its possession, was to make construction of shops in order to allot the same to said 45 shop keepers of Schedule ‘B’.

4. Though the said compromise decree was passed on 29/08/1979, the parties did not proceed further. The 45 shop owners remained on same site. Thereafter, the decree holders i.e the plaintiffs therein have filed an injunction application in Darkhast bearing R.D No. 5 of 1990. The said injunction application was allowed to the extent of the persons in Schedule ‘B’ i.e 45 shop owners - the present petitioners. The State assailed the said order in Writ Petition No. 5839 of 2004. The said order was set aside and the matter was remitted back. It was the stand of the Judgment Debtors therein i.e the State and the Shirdi Sansthan that because of the subsequent developments, the decree has become in executable.

5. After the matter was remitted back, the Civil Judge (Sr. Division) thereafter decided the matter. The parties had led evidence. The Civil Judge (Sr. Division) came to the conclusion that the objection raised by the Judgment Debtor is valid. Due to the subsequent changes and developments, the compromise decree under execution became non executable and infructuous. The said order was assailed by the plaintiffs/decree holders therein in various Writ Petitions i.e Writ Petition No. 5451 of 2009 and other Writ Petitions. The learned Single Judge of this Court rejected the said Writ Petitions vide Judgment and Order dated 05/07/2010. However, the learned Single Judge has directed the State and the Shirdi Sansthan to pay compensation as quantified in the said Writ Petitions. The decree holders thereafter assailed the said order in the Letters Patent Appeal. The Division Bench of this Court dismissed the Letters Patent Appeal confirming the Judgment of the learned Single Judge of this Court and the Civil Judge (Sr. Division) in the execution proceedings. Against the Judgment of the Division Bench of this Court, the plaintiffs/decree holders have approached the Apex Court by filing Special Leave Petitions. The said Special Leave Petitions are admitted and pending. The Apex Court had passed the order maintaining status-quo. However, on the application of the present respondent - Municipal Council, it was clarified by the Apex Court that if the Municipal Council wants to take any action in connection with road widening or removal of encroachments, it is made clear that the interim order will not come in the way and such action being taken in accordance with law. The Apex Court has passed the following order,

“Mr. Shekhar Naphade, learned Senior Counsel appearing for the Shirdi Municipal Council submits that the Municipal Council is not a party to the consent decree and that the interim order granted by this Court is coming in the way of the Municipal Council taking action for road widening and removing of encroachments etc. in accordance with law.

We make it clear that the interim order of status quo that was granted is with reference to the Sansthan and the State Government. If the Municipal Council wants to take any action in accordance with law in connections with road widening or removal of encroachments, it is made clear that the interim order will not come in the way of such action being taken in accordance with law.”

6. Thereafter, vide order dated 28/02/2011, the Apex Court has passed following order,

“As there appears no chances of settlement, the Sansthan is permitted to withdraw the amount, if any, deposited by it before the High Court.

Leave granted.

The order of status quo to continue subject to the clarification in favour of the Municipal Council made on 13/12/2010.”

7. After the Apex Court has passed the aforesaid orders, the Municipal Council has issued the instant notice assailed in the Suit filed by the petitioners.

8. Mr. V.J Dixit, learned Sr. Counsel for the petitioners with all his persuasiveness and in lucid manner made following submissions:

[i] The provisions of the Maharashtra Municipal Council Act and the M.R.T.P Act invoked by the respondent are not at all applicable to the shops of the petitioners. The shops of the petitioners are already in existence before coming into force the Maharashtra Municipal Council Act. The entry of the petitioners can not be said to be that of encroachers. The petitioners have not carried out any construction after the applicability of the Maharashtra Municipal Council Act to the said area. The structure as existed in the year 1970 is the same even today.

[ii] Section 179 of the Maharashtra Municipal Council Act is in respect of surface projection, obstructions and encroachments in respect of public street. The petitioners are not encroachers and are not on public street, but on S. No. 1. The other provisions invoked under the Maharashtra Municipal Council Act dealing with prohibition of projection upon the streets, sale of articles on public street without licence and prohibition of hand-carts without licence or in respect of notice of construction of building are not at all applicable to the present case.

[iii] Section 42 of the Town Planning Act is in respect of implementation of plans. The provisions are not applicable as the town planning scheme is not made applicable to the respondent - Municipal Council. The learned Sr. Counsel for the said purpose relied upon the report of the Court Commissioner in Writ Petition No. 5839 of 2004 i.e Dy. Director of Town Planning, Nasik, so also the other provisions of section 45 regarding refusal of permission and Sections 52 and 53 in respect of penalty for unauthorized development are also not applicable.

[iv] The petitioners are tenants as per the compromise decree in R.C.S No. 600 of 1976. Even the High Court in Writ Petition No. 1705 of 2009 had specifically observed that the petitioners herein are not the encroachers or intruders on land S. No. 1.

[v.] The reservation No. 15-A is towards East of Saibaba temple and is reserved for parking and has no application with the place of present shop keepers.

[vi] The respondent - Municipal Council does not have any authority to remove the petitioners on the ground that they are within the control line of 37 Meters of Ahmednagar - Manmad High-way No. 10. Under the provisions of Section 23 of the Bombay High-ways Act, the Gazetted Officer has to issue notice. The respondent herein does not have any authority to issue notice.

[vii] The trial Court as well as lower appellate Court have not given any prima facie finding on the issues which are required to be decided while dealing with injunction application. Only on the ground that the issue is pending before the Hon'ble Supreme Court of India, the injunction application and the Appeal are rejected.

[viii] As far as Palkhi road is concerned, the land is already acquired for the purpose of Palkhi road purpose. The land S. No. 1 is not shown in the Gazette clearly establishing the fact that the same is not affected by the Palkhi road. The Award is also passed. The names of the petitioners are not included in the Award.

[ix] As per the Development Plan, land S. No. 1 admeasuring 30 gunthas is reserved as Site No. 13 for garden. The Municipal Council has submitted the modification proposal U/s 37 to modify reservation No. 13 and the part of the said reservation is now reserved for shopping centre. This would make it abundantly clear that said S. No. 1 is not affected by 15 Meter development plan road or the Palkhi road. Even in R.D No. 5 of 1990, the Assistant Town Planner, Ahmednagar was examined as a witness. He has admitted that Palkhi road does not go through reservation No. 13-A or 13-B.

[x] If the petitioners are not protected at the interim stage, their special leave petition pending before the Supreme Court and the substantial Suit before the trial Court will become redundant and as such the petitioners are required to be protected.

[xi] The land is owned by the Government and not by the respondent herein. The construction which is already in existence, can not be termed as illegal and no fresh permission is required after coming into force of the Municipal Council Act.

9. The learned Sr. Counsel relied on the Judgment in the case of Atmaram Pinjomal Vazirani v. Nagpur Municipal Corporation reported in 2011 (2) Bom.C.R - 577 to submit that the action under M.R.T.P Act can be resorted only after the proper development plan is prepared and only when the compliance with directions are issued thereunder.

10. The learned Sr. Counsel relied on the Judgment of Mumbai International Airport Pvt. Ltd. v. Indamer Company Pvt. Ltd. reported in 2008 (2) BCJ - 571 to contend that public purpose can not be a ground from deviating from the rule of law. A person in settled possession can not be evicted even if he is a tress passer without adhering to the due process of law.

11. Mr. Hon, learned counsel for the respondent with his usual vehemence canvassed following submissions:

[i] The Suit filed by the petitioners itself is not maintainable. The special leave to Appeal is pending before the Apex Court in respect of the same subject matter. If the petitioners are aggrieved by the action of the respondent, they have remedy to move the Apex Court for any breach of the orders. The Courts below do not have any jurisdiction to entertain the Suit and the application.

[i] There is already an adjudication that because of the subsequent development, the compromise decree in R.C.S No. 600 of 1976 has become un-executable. Even in R.D No. 5 of 1990, the decree holders had filed an application [Exh. 149] for temporary injunction restraining the Judgment Debtors from demolishing their shops from the suit property. The Civil Judge (Sr. Division) initially had allowed the said application restraining the Judgment Debtors from removing or demolishing the shops as far as the shop owners enlisted in Schedule ‘B’ of the compromise decree i.e the present petitioners. The State of Maharashtra being aggrieved by the said order passed below Exh. 149 filed in Writ Petition No. 5839 of 2004 before this Court. The learned Single Judge of this Court set aside the said order and remitted the matter back to the executing Court for decision afresh. Thereafter the executing Court held that the compromise decree has become in executable and dismissed the Darkhast. The said order has been confirmed by the learned Single Judge of this Court in Writ Petition No. 5451 of 2009, thereafter by the Division Bench of this Court in L.P.A No. 227 of 2010 and the said matter is now subjudiced before the Apex Court. In view of the fact that the said finding has already been given and is subjudiced before the Apex Court. No other Court can now deal with the said findings.

[iii] The action has been taken as per the liberty granted by the Apex Court dated 13/12/2010.

[iv] The report is placed in Writ Petition No. 5389 of 2004 stating that there are encroachments on Palkhi road, so also the shops are affected by development plan reservation No. 13-B.

[v.] The Municipal Council is not party to the compromise decree. The development plan for the Shirdi town was made applicable on 15/12/1992 and the same came into force from the year 1993. As per the development plan, the existing site at which the petitioners' shops are situated, is meant for the purpose of garden and shopping complex. Even the said shops come within the control line of the Ahmednagar - Manmad High-way No. 10. A copy of the application filed on record clearly establishes the said fact.

[vi] The Shirdi town has now become very famous and lacs of devotees are visiting the said town, as a result of which the said Ahmednagar - Manmad High-way No. 10 has been widened. Not only this, but also other side of 9 Meters road is required for devotees to approach Saibaba temple.

[vii] The road is required to be kept free for approach to the devotees, otherwise the serious incident like Mandar Devi are likely to take place.

[viii] Even balance of convenience does not lie in favour of the petitioners nor they are going to suffer irreparable loss. Each shop keeper has got alternate premises at Shirdi and they are running their business in the said commercial premises.

[ix] The petitioners' shops are situated in the reserved area and also within the control line. They are encroachers. Rightly the notice has been given of 30 days to vacate.

12. Mr. Hon, learned counsel for the respondent relies on the Judgment of the Division Bench of this Court in Mohansing Uttamsing Tanwani v. The State of Maharashtra reported in 2010 (5) ALL MR - 646 to contend that all public streets except one owned by the Government including the pavement stones and other material thereof shall vests in the Municipal Council. The larger public interest of the citizens should out-weigh the personal interest of the petitioners. The learned counsel also relies on the Judgment of the Division Bench of this Court in the case of Gangadhar Narayanrao Wat v. The State of Maharashtra reported in 2006 (1) ALL MR - 241, 5 on the Judgment of the learned Single Judge of this Court in the case of Shirdi Nagar Panchayat v. Gordiya Hotel in S.A No. 475 of 2007 and the Judgment of the Apex Court in the case of Hotel Seagull v. State of West Bengal reported in (2002) 4 SCC 1.

13. With the assistance of the learned counsel for the respective parties, I have gone through the Judgment and orders passed by the Courts below and various documents filed on record.

14. On going through the earlier litigation, which has travelled up to the Apex Court and is pending before the Apex Court at present, it is explicitly clear that the petitioners herein are unfortunate litigants doing small time business of selling flowers, tea or running eateries, etc. in small shops on the suit site. In fact, they are victims of the principle “salus populi suprema lex” i.e welfare of the people at large is the supreme law. The petitioners on account of development, changed circumstances are required to be evicted from the said place.

15. The petitioners are not the encroachers. Their entry upon the land is legal. Their small shops/kiosks are in existence at least since 1970. Even as per the compromise decree as narrated supra, the petitioners were to vacate the suit shops and were to be allotted constructed shops. The said compromise decree has been rendered in executable and the finding that the said decree has become in executable, has been confirmed by the learned Single Judge of this Court, so also the Division Bench of this Court in Letters Patent Appeal and the same is pending with the Apex Court.

16. Earlier, Shirdi was a village and had Gram Panchayat. The said Gram Panchayat eventually was upgraded as Municipal Council, probably in the year 1990. After the respondent - Municipal Council was constituted, the development plan was prepared. By Notification dated 15/12/1992, the development plan was sanctioned. The suit site No. 13 came to be reserved for garden. Thereafter, minor modification U/s 37 of the M.R.T.P Act was made and by Notification dated 27/12/2003, the reservation of the suit site was bifurcated into site No. 13-A and 13-B. Site No. 13-A admeasuring 15 gunthas was kept reserved for garden and site No. 13-B admeasuring 15 gunthas was reserved for shopping complex. The petitioners' shops, it appears, are situated on reservation No. 13-A i.e site reserved for garden.

17. While deciding executability of the compromise decree executed between the parties in R.C.S No. 600 of 1976, detail evidence was led by the parties in R.D No. 5 of 1990. In the said Darkhast proceedings, the Tahsildar, Rahata was examined, so also the Assistant Town Planner and the T.I.LR who carried out the measurement. After considering the evidence of all the parties, the executing Court held that site No. 13-A is reserved for garden and site No. 13-B is reserved for shopping complex. The said area comes within the control line. As such, no shopping complex can be constructed on reservation No. 13-B which was reserved for shopping complex. Even reservation No. 13-A comes within the area of 37 Meters of the control line and is also reserved for garden. This finding of the executing Court in R.D No. 5 of 1990 is confirmed by the learned Single Judge of this Court in Writ Petition, so also confirmed by the Division Bench of this Court in Letters Patent Appeal. It was not possible for the Courts below while deciding temporary injunction application to hold otherwise in wake of the earlier pronouncement by this Court in Writ Petition and in Letters Patent Appeal, so also this Court would be bound by the said findings and the orders passed by the Court.

18. The development plan prepared is required to be implemented. No construction can be allowed to remain on the site reserved for garden. The petitioners' shops, it appears, are on site No. 13-A, which is reserved for garden and as such can not carry on their business nor any construction would be permissible, so also they come within the control line of 37 Meters. No construction is permissible within the control line. The Municipal Council is a Planning authority and is invested with the duty and obligation to implement the development plan and by issuing notice precisely the same thing is sought to be done. Even in the Writ Petition No. 5451 of 2009 with other connected Writ Petitions which was arising out of an order passed in R.D No. 5 of 1990, the learned Single Judge of this Court invoking its power under Article 226 of the Constitution of India had directed the Government and the Sansthan to pay compensation to the petitioners. The said Judgments are not stayed by the Apex Court, but the Apex Court has granted status-quo qua the petitioner, the State and the Sansthan. The Apex Court had granted liberty to the Municipal Council to proceed as per law and thereafter the notice has been issued. In the earlier round, it has been concluded up to the Division Bench of this Court that the constructions/tenements/shops of the petitioners are situated within the control line and in area reserved for garden.

19. Though the provisions of the Maharashtra Municipal Council Act as invoked may not be squarely applicable to the present case, but since the shops of the petitioners are within the control line and are in the area reserved for garden, the said shops/kiosks of the petitioners can not be protected at the hands of this Court. The matter is subjudiced before the Apex Court.

20. It would be no gain saying that it is the only HIgh-way authorities under the Bombay High-way Act, which can take action in respect of the constructions coming within the control line or that the permission of the Government is not obtained by the Municipal Council before issuing notice. The construction is situated in an area within the Municipal limits. The Municipal Council can not permit the construction against the bye-laws and rules. No construction can be allowed to remain on an area reserved for garden and/or coming within the control line.

21. Section 56 of the M.R.T.P Act empowers the Planning Authority to direct that the particular use of the land should be discontinued or that any building should be removed having regard to the Development Plan prepared, if it is expedient in the interest of proper planning of its areas. As observed above, the said shops and kiosks of the petitioners are situated in an area reserved for garden as per the Development Plan, so also the said construction is within 37 Meters from the central line of the National High-way i.e within the control line. The Municipal Council, which is the Planning Authority, would be empowered to direct removal of such constructions.

22. This Court in earlier Writ Petition and Letters Patent Appeal have taken cognizance of the fact that Shirdi town has become very famous and lacs of devotees are visiting said town and had not protected the petitioners.

23. It would be seen that as lacs of devotees are visiting Shirdi town, the Ahmednagar - Manmad High-way No. 10 has been widened. The road is required to be kept free for approach to the devotees. Steps are required to be taken to prevent commotion. Taking into account these factors, the notice has been issued for removal of the structures owned by the petitioners on the suit site. The same would be in public interest.

24. In light of the above conspectus of the matter, the petitioners' structures can not be protected.

25. The Writ Petitions as such are dismissed. No costs.

26. However, taking into consideration the fact that the petitioners are in possession of said structures for a long time, the respondent - Municipal Council, Shirdi shall not evict the petitioners for the period of three (3) months from today.