wp.2587.00
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 2587/2000
1) Paramanand s/o Variyomal Katyari
Aged about 67 years, occu: Business
2) Dilip s/p Paramanand Katyari
Aged about 38 yeaers, occu: business
Both Residents of Lokmanya Ward,
Arvi, Dist.Wardha. .. ..PETITIONERS
versus
1) State of Maharashtra
Through its Secretary
Revenue & Forests Department
Mantralaya, Mumbai-400 032.
2) The Executive Engineer
Public Works Division
Arvi, Dist. Wardha.
3) The Sub-Divisional Officer
Arvi, Dist.Wardha.
4) The Tahsildar,
Arvi, Dist. Wardha. .. ..RESPONDENTS
...............................................................................................................................................
Mr. Jitesh Duhilani, Advocate for the petitioners
Mr. Nitin Rode. AGP for respondent no.1-State
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 8th December, 2017 ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 ::: wp.2587.00 2 ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Petitioners, whose premises have been demolished on 1.6.2000 is before the Court, claiming compensation for demolished property and pointing out unauthorised high-handed exercise of power by respondents.
2. This Court has admitted Writ Petition on 27.7.2000 and, on that day, parties were directed to maintain status quo. That direction continues to operate even today. Adv. Jitesh Duhilani for petitioners submits that petitioners became owner of demolished structure through a registered sale deed dated 8.1.1971. The shop which was located in said structure had necessary license under the Bombay Shops and Establishment Act since December, 1967. The property tax was also paid regularly to Municipal Council.
3. In this situation, on 1.6.2000, without previous notice/opportunity and even grant of time, the respondents came together and demolished half of the double storeyed structure thereby rendering it useless for further occupation. He submits that photographs on record and map added after amendment, show that adjacent structures are still standing and no action was taken against any of them. According to them, if structure or any part thereof was encroachment on public road, similar action could have been and should have been taken against adjacent structures but that has not been done. He further points out that later on respondent ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 ::: wp.2587.00 3 no.2-Public Works Department has given no objection certificate ('NOC') to Office of Collector, Wardha for executing lease deeds in favour of everybody.
4. He, therefore, submits that action is high-handed and hence respondents should be called upon to pay costs of structure i.e. Rs. 6 lakhs, to petitioners and petitioners should be permitted to raise the structure and carry on his business as before. He also claims damages of Rs. 25,000/- towards costs of goods damaged in the process of demolition.
5. Learned counsel has invited our attention to necessary documents including valuation report to support the claim.
6. Learned AGP is seeking time. He points out that only respondent no.4 has filed reply/return while other respondents have not filed any return. He also points out that petition appears to have been amended but then no reply has been filed to amended portion.
7. After rejection of his request for adjournment, without prejudice to said request and only to assist the Court, he has submitted that the petitioners were/are encroachers and hence after proper procedure the said portion was demolished. He has invited our attention to affidavit filed by respondent no.4-Tahsildar, to urge that action was taken after proclamation on loudspeaker and with necessary precaution. He ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 ::: wp.2587.00 4 submits that though petitioners' claim that respondent no.2 has given NOC for execution of lease deeds, lease deeds executed in favour of petitioners or other adjacent owners, are not produced on record. He contends that as encroachment on road has been removed, no legal right of petitioners has been violated. He further adds that several disputed questions of facts and law arise and hence petitioners ought to have filed a Civil Suit.
8. After hearing respective counsel, we find that demolition of property of petitioners on 1.6.2000 is not in dispute. The petitioners have placed on record as Annexure II the sale deed dated 8.1.1971 which shows that petitioner no.1 purchased said property as per law. There are receipts issued by the Municipal Council, Arvi for said property for years 1967-68 also and the documents of assessment for years 1983-84 to 1986-87 (Jamabandi) reveals that petitioners were having a shop of cloth and stationery therein. In proceedings filed before us respondents have not disputed the said sale deed or then tax receipts or fact of petitioners carrying on business in said establishment.
9. The petitioners have also placed on record copy of order dated 4.3.1954 delivered in Civil Suit No.150-A-9-1952 which is judgment therein by learned Civil Judge (Class II), Arvi. Suit was filed by one Gaurishankar against Hariram and others. The petitioners claim that this judgment and decree shows title of Gaurishankar, who was predecessor in-title of present petitioners. ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 :::
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10. All these documents including valuation report of structure are not in dispute at all.
11. Material on record also shows that petitioners is a displaced person who has been settled in C.P. & Berar.
12. As also noted supra, only respondent no.4-Tahsildar has filed return on 17.4.2001. In that return, in paragraph 1, Tahsildar has specifically stated that oral proclamation through loudspeaker was given for the benefit of all concerned persons. It is further submitted that as it was encroachment on road, provisions of Land Acquisition Act do not apply. It is further submitted that the road was being maintained by PWD and other allegations in the petition therefore need to be answered by PWD.
13. The petition has been amended on 16.1.2002 and though period of more than 15-years has expired, none of the respondents have filed any reply-affidavit traversing the pleadings as amended. The first three respondents have not filed any reply even to original petition.
14. Photographs at Annexure I show double storeyed structure of shop of petitioners and also adjacent structures. It also shows demolition thereof while the adjacent structures remained intact. The petitioners have also pointed out a rough sketch which shows several shops in the line of shop of petitioners and contention ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 ::: wp.2587.00 6 that no action has been taken against those shops or those shops continue to function as it is even today,has not been rebutted.
15. At Annexure X is a communication dated 12th June,2001 sent by Executive Engineer of PWD, Arvi which points out that shop Nos. T-1 to T-23 on Arvi-Pulgaon road were situated within a distance of 40 feet from centre of road. It appears that shop of petitioners is shown before Shop No.T-1 in map at Annexure IX by petitioners. In this letter, Executive Engineer has pointed out that shop keepers have filed Civil Suit No.105/1998 in the court of learned Civil Judge, Senior Division at Wardha and, therefore, has requested Collector, Wardha to obtain necessary clearance from office of Government Pleader at Wardha about renewal of leases of those shops for period after 1995. He has also mentioned that if in future, the land of those shops was required for widening of road, renewal should be subject to such requirement.
16. At Annexure X, we also find a copy of request letter dated 20th December, 1994 by one Gangadhar Sitaramji Gothane and other shopkeepers. He has pointed out that shops are located at a distance of 55 feet from centre of road and for temporary lease Municipal Council has also given NOC. He,therefore, sought no objection from PWD also. On 8.8.1998, the Sub-Divisional Engineer (respondent no.3) has also sent a letter to Executive Engineer on shopkeepers' application dated 22.6.1998. He has asked the Executive Engineer to take necessary action to grant ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:25 ::: wp.2587.00 7 NOC for the lease as requested. On 12th June, 2000 the Chief Engineer has given his consent for giving NOC to Executive Engineer but has asked Executive Engineer to obtain opinion from Government Pleader at Wardha.
17. These documents, therefore, show that structure removed as encroachment was standing at least from the date of order of Civil Court mentioned supra i.e. from 1951-52 till its demolition on 1.6.2000. It also appears that later on NOC has also been given by PWD to Collector for renewal for lease deeds. Thus, shops were standing on sites of which leases were valid till 1995 and were not renewed thereafter. Question is whether since 1951-52 was there a road of particular width and whether displaced persons were given lease of such road which lasted at least till 1995.
18. These facts therefore show that without proper notice and opportunity to petitioners it was not necessary to take such a drastic step. Even if we presume that petitioners were/are encroachers, they are in settled possession and as such it could not have been disturbed without giving them a previous notice, as held by Hon'ble Apex Court, in the case of Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others, reported at (1997) 11 SCC 121 and, Sodan Singh and others vs. New Delhi Municipal Committee & others reported at (1989) 4 SCC 155.
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19. In this situation, we find that when high-handed action has been taken only against structure of petitioners and they are out of business for all these years, costs of structure as certified in valuation certificate and demanded by them, need to be awarded.
20. Insofar as claim for damages to goods and articles during demolition operation is concerned, the photographs on record show empty racks and, therefore, it cannot be presumed that grocery or food articles or stationery articles or clothes stored therein,were damaged. Except for bare prayer to pay petitioners an amount of Rs. 25,000/- on that account there is no material to support it.
21. We,therefore, find that interest of justice can be met with by directing respondents not to disturb the possession of petitioners without following proper process of law. We also direct them to pay to petitioners an amount of Rs. 6 lakhs as costs of demolished structure. The amount shall be paid to petitioners within a period of three months from today. It shall carry interest at 6% per annum from 1.6.2000 onwards till its realization.
22. With these directions and with liberty to parties to take such other steps as are open to them in law, we partly allow the Writ Petition and dispose it of.
23. Rule is made absolute accordingly. No costs.
JUDGE JUDGE
sahare-
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