Monday, 5 September 2016

Whether court should take security from plaintiff prior to grant of status quo in case of removal of encroachment?

This Court has carefully gone through the provisions
of Maharashtra Land Revenue Code like sections 50 to 53. The
provision of section 50 (5) shows that order made by Collector
can be challenged by filing appeal before the appellate authority.
Admittedly, this recourse was not used. The provision of section
50 (6) shows that only when the decision given under these
provisions becomes final, the suit can be filed to establish the
rights in Civil Court and that too, within six months from the date
when the decision of the revenue authority becomes final. It can
be said that in the present matters, there is no right as such to
the plaintiffs to continue the possession, but by making some
contentions, they have remained on the space due to the orders
made by the Courts below. The Trial Court has rightly held that
the provision of section 50 is applicable in such cases. The
record is produced to show that the Collector has delegated the
powers to Tahsildar, both in respect of agricultural lands and non
agricultural lands. Thus, there is no illegality in the notices given
against the plaintiffs and there are further aforesaid
circumstances. In view of the facts and circumstances, this Court

has no hesitation to observe that the Courts below did not take
proper care, they did not take even the security from the
plaintiffs for getting order like statusquo and due to that the
Government could not take the steps like widening of the road in
respect of that portion.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
 SECOND APPEAL NO. 255 OF 2016

RAJENDRA POPAT WAGHMARE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE DISTRICT
COLLECTOR

CORAM : T.V. NALAWADE, J.
DATED : 31st March, 2016.

Citation: 2016 (4) MHLJ 475

1. Second Appeal No. 255/2016 is filed against
judgment and decree of Regular Civil Suit No. 9/2012, which was
pending in the Court of Civil Judge, Senior Division, Kopargaon
and also against the judgment and decree of Regular Civil
Appeal No. 96/2013, which was pending in the Court of District
Judge-2, Kopargaon, District Ahmednagar. Regular Civil Suit No.
9/2012 was filed by in all eight traders for relief of declaration
and injunction against present respondents, the State
Government and the Collector. These eight traders challenged
the decision in First Appeal, but out of the eight plaintiffs only
five plaintiffs have challenged the decision of the First Appellate

Court by filing present appeal.
2. Other Second Appeal No. 256/2016 is filed against
judgment and decree of Regular Civil Suit No. 8/2012 and
judgment and decree of Regular Civil Appeal No. 95/2013. The
said suit was filed by eight traders and all the traders have come
to this Court to challenge the decisions of the Courts below. Both
the suits were tried together and the appeals filed against the
decisions are also decided by common judgment. Heard the
learned counsel for appellants.
3. In the two suits, notices given by the Tahsildar under
the provisions of Maharashtra Land Revenue Code for removal of
encroachment made by these traders were challenged. In those
notices, Tahsildar had asked them to remove the encroachment
and had informed that if the steps are not taken for removal, the
State machinery will remove the encroachment. It was
contended by plaintiffs that one Mohammad Ali Sayyed was the
owner of the land involved, Survey No. 336/2A, though the land
was shown in the name of Government. It was contended that
suit was pending between these person and the Local Body and
so, Government cannot say that the plaintiffs have made
encroachment on the land of the Government.

4. The suits were contested by the Government by
contending that separate notices were given to the plaintiffs and
all the plaintiffs ought to have filed separate suits and the suits
in the present form are not tenable. It was contended that the
notices given were legal. It was contended that only to protract
the taking of the possession by the Government of the
Government land, the suit was filed.
5. The main contention of the plaintiffs was that the
Tahsildar has no power to issue notices under section 50 (3) of
the Maharashtra Land Revenue Code and so, the notices are
illegal. Issues were framed on the basis of aforesaid pleadings.
6. Both the sides gave evidence. It is not disputed by
the plaintiffs that they have no right or interest in the property,
on which they have kept their kiosks, the stalls for running
businesses. The Trial Court has considered the provisions of
section 50 (1) and 53 (1) and has held that the Collector has
power to take action for removal of encroachment and for action
under section 50, the Collector is not expected to give notice
before removal of encroachment. The Trial Court has further held
that in view of the documents like Exhs. 85 and 86, the power

was delegated to Tahsildar by the Collector in this regard and so,
it cannot be said that notices issued are illegal. It is also held
that without offering explanation in respect of notices, the
plaintiffs have rushed to the Court and so, the suits were
premature. However, it is further observed that there is nothing
with the plaintiffs to show that they have right to keep the
possession. The kiosks are kept there without taking permission
of Local Body also and from that point also, there is illegality.
7. It was submitted before the Courts below for the
plaintiffs that the plaintiffs had applied to Government for
regularisation of encroachment and as no decision was taken on
their representation, their possession needs to be protected. The
material produced on the record shows that the encroachment is
not on open space, but it is virtually on State highway,
Ahmednagar - Manmad highway. This portion is the area which
cannot be developed in view of the provisions of Highway Act
and no construction can be made on this space. This portion was
immediately required for road widening purpose and so, the
defendants were taking such action. It appears that by filing suit
and due to some orders made by the Courts below, the
Government could not take action and the plaintiffs successfully
remained on the space from 2013 till today. The development

activities halted due to the orders made by the Courts below. It
appears that even after dismissal of the appeal, further order of
statusquo was made by the First Appellate Court.
8. This Court has carefully gone through the provisions
of Maharashtra Land Revenue Code like sections 50 to 53. The
provision of section 50 (5) shows that order made by Collector
can be challenged by filing appeal before the appellate authority.
Admittedly, this recourse was not used. The provision of section
50 (6) shows that only when the decision given under these
provisions becomes final, the suit can be filed to establish the
rights in Civil Court and that too, within six months from the date
when the decision of the revenue authority becomes final. It can
be said that in the present matters, there is no right as such to
the plaintiffs to continue the possession, but by making some
contentions, they have remained on the space due to the orders
made by the Courts below. The Trial Court has rightly held that
the provision of section 50 is applicable in such cases. The
record is produced to show that the Collector has delegated the
powers to Tahsildar, both in respect of agricultural lands and non
agricultural lands. Thus, there is no illegality in the notices given
against the plaintiffs and there are further aforesaid
circumstances. In view of the facts and circumstances, this Court

has no hesitation to observe that the Courts below did not take
proper care, they did not take even the security from the
plaintiffs for getting order like statusquo and due to that the
Government could not take the steps like widening of the road in
respect of that portion.
9. The learned counsel for appellants placed reliance on
the following cases :-
(i) 2008 LawSuit (SC) 114 [Basayya I Mathad
Vs. Rudrayya Mathad],
(ii) 2012 LawSuit (SC) 433 [Union of India Vs.
Ibrahim Uddin and Anr.],
(iii) 1967 LawSuit (SC) 347 [Associated Hotels
of India Ltd. Vs. S.B. Sardar Ranjit Singh],
(iv) 1951 LawSuit (SC) 15 [Arjun Singh Vs.
Kartar Singh],
(v) 2000 LawSuit (SC) 1963 [Mahavir Singh Vs.
Naresh Chandra],
(vi) 2008 LawSuit (SC) 452 [North Eastern
Railway Administration, Gorakhpur Vs. Bhagwan
Das],
(vii) 1964 LawSuit (SC) 237 [Municipal
Corporation of Greater Bombay Vs. Lala
Pancham], and
(viii) 2015 (8) LJSOFT 45 [Smt. Parvatibai w/o.
Chottelal Baisware Vs. Smt. Noorien wd/o.
Bhushan Rangaswami & Anr.].
The learned counsel submitted that some record was produced

in the appeal to show that there was delegation of power to
Tahsildar in respect of non agricultural land also and proper
procedure was not followed by the Appellate Court for accepting
copy of that order. The decision given by the First Appellate
Court shows that the Appellate Court has considered the said
record. It can be said that only due to the specific contentions,
which must have been made by the plaintiffs, the relevant entire
record was produced. The plaintiffs have no right at all in respect
of the land. Without paying anything to the Government, they
have used the land for many years and the provision of section
50 shows that when no explanation is there with such persons,
Collector can exercise the power under section 50 and the
purpose of notice is only to give opportunity to such persons to
explain and say something about their rights. In view of these
circumstances, the technicality that such record was not
produced in the Trial Court cannot be considered.
10. On the other hand, the learned AGP for State placed
reliance on the case reported as 1995 (3) SCC 33 [Mahadeo
Savlaram Shelke Vs. Pune Municipal Corporation] and he
submitted that the State has already suffered losses and the
project value has gone up, but due to the orders made by the
Courts below the State fells helpless. Principles are laid down by

the Apex Court, which needs to be followed by the Courts before
issuing injunction. This Court has no hesitation to hold that
unfortunately the Courts below did not follow the procedure and
due to the orders made by the Courts below, the development
activity was halted and the project value must have increased
many times. No substantial question of law as such is involved in
the matters. This Court sees no reason to interfere in the
decisions given by the Courts below. Thus, both the appeals
need to be dismissed.
11. In the result, the appeals are dismissed. All Civil
Applications are disposed of.
12. The learned counsel for appellants requested for
some time as he wants to challenge the decision. In view of the
aforesaid discussion, this Court holds that no interim relief, even
for a single day, can be granted in favour of appellants. Such
request is refused.
 [ T.V. NALAWADE, J. ]

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