Municipal Council Mehekar vs Nirmal Bahuuddeshiya Sanstha ...
2016 Latest Caselaw 4210 Bom

     Judgment                                             1                                wp3266.16.odt




                                                                                      
                      
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                              
                               WRIT PETITION NO. 3266  OF 2016




                                                             
     Municipal Council, Mehkar, 
     through its Chief Officer, 
     C/o. Office of Municipal Council,
     Mehekar, Tq. Mehekar, Dist. Buldhana.




                                               
                              ig                                              ....  PETITIONER.

                                          //  VERSUS //
                            
     1. Nirmal Bahuuddeshiya Sanstha,
        (A Registered Society, Mehekar, 
        Tq. Mehekar, Dist. Buldhana,
        Through its Chairperson, 
      

        Mrs. Nirmala Bhagwandas Zanwar,
        Age-55 years, Occu.: Profession &
   



        Social Worker, R/o. Mehekar, 
        Tq. Mehekar, Dist. Buldhana. 

     2. State of Maharashtra,
        Through its Collector, Buldhana. 





     3. Sub-Divisional Officer, Mehkar,
        Tq. Mehkar, Dist. Buldhana. 

                                                                           .... RESPONDENTS
                                                                                         . 





      ___________________________________________________________________
     Shri S.K.Mishra, Sr.Advocate a/b Shri N.R.Tekade, Adv. for Petitioner-original 
     defendant No.3.  
     Shri Abhay Sambre, Advocate for Respondent No.1-original plaintiff.
     Shri A.D.Sonak, A.G.P. for Respondent Nos. 2 and 3/ Original deft.No.1 & 2.
     ___________________________________________________________________

                                  CORAM : Z.A.HAQ, J.

DATED : JULY 27, 2016.

ORAL JUDGMENT :

Judgment 2 wp3266.16.odt

1. Heard learned advocates for the respective parties.

2. RULE. Rule made returnable forthwith.

3. The undisputed facts are :

The suit land belongs to State Government. That by deed dated

11th March, 2002 the plaintiff was granted lease in respect of the suit land

till 31st July, 2012. The plaintiff was given possession of the suit land on

11th March, 2002. After the expiry of the lease period on 31st July, 2012 the

plaintiff applied for renewal of lease. The application of the plaintiff praying

for renewal of the lease is rejected on 7th August, 2013.

4. According to the plaintiff, he continues in possession of the suit

land and the defendant No.3 Municipal Council is trying to take forcible

possession of the suit land and therefore, he is required to file the civil suit

and application praying for temporary injunction.

5. The learned Senior Advocate has submitted that the plaintiff

has not approached the Court bonafide and with clean hands and therefore,

it is not entitled for discretionary relief. It is pointed out that earlier the

plaintiff had filed Writ Petition No. 1473 of 2014 before this Court

challenging the order passed by the Sub-Divisional Officer rejecting the

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application of the plaintiff for renewal of lease and in this petition incorrect

submission was made that the plaintiff was in possession and on that basis

interim order was obtained on 20th March, 2014, and when it was pointed

out subsequently, Writ Petition No. 1473 of 2014 was withdrawn on 15th

April, 2015.

The order passed by this Court in Writ Petition No. 1473 of

2014 on 15th April, 2015 shows that the petition was withdrawn with liberty

to file appeal under Section 247 of the Maharashtra Land Revenue Code,

1966. The above order does not reflect that the petition was withdrawn after

the plaintiff (petitioner) faced any problem for making any incorrect

submission. It is further relevant to note that the plaintiff had filed civil suit

on 16th May, 2013 i.e. much before filing of the Writ Petition No. 1473 of

2014. In these facts, it cannot be said that the plaintiff has filed civil suit

malafide and with any evil intention.

The learned Senior Advocate has submitted that the trial Court

has recorded finding of fact on the basis of the communication dated 18th

April, 2013 and other documentary evidence on record, that the plaintiff was

not in possession of the suit land on the date of filing of the civil suit. It is

submitted that the findings recorded on this point were based on proper

appreciation of material on record and the learned District Judge has

committed an error by reversing the order passed by the trial Court without

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recording that the findings given by the trial Court are unsustainable. It is

argued that the learned District Judge has granted temporary injunction in

favour of the plaintiff for the first time and therefore, it was necessary for

him to examine all the factual aspects and also to examine the legality of the

findings recorded by the trial Court and this having not been done, the

impugned order is unsustainable.

It is further submitted that the trial Court rightly considered the

fact that all the trustees of the plaintiff-trust are not party to the civil suit,

that notice under Section 80 of the Code of Civil Procedure is not given and

that the plaintiff has not complied with the provisions of Sections 50 and 51

of the Maharashtra Public Trusts Act. The judgment given in the case of

Meher Farms Pvt. Ltd. Vs. Sociedade Patriotica Dos Baldios, reported in

2016(1) ALL MR 916 is relied upon to substantiate the submission that the

order passed by the trial Court which is based on proper appreciation of

material on record could not have been reversed by the District Court. It is

prayed that the petition be allowed and the order passed by the learned

District Judge be set aside.

6. On earlier occasion, when the petition was listed, to test the

bonafides of the respondent No.1 the advocate appearing for the respondent

No.1 was asked whether the respondent No.1-plaintiff has paid any lease

money from 1st August, 2012 and whether the plaintiff is willing to deposit

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the amount of Rs.5,00,000/- before the trial Court. The learned advocate for

the respondent No.1-plaintiff, on instructions, has submitted that the plaintiff

has not paid anything since 1st August, 2012 as the amount is not accepted

since the lease is not renewed. It is submitted that the plaintiff is willing to

deposit Rs.5,00,000/- with the trial Court to show its bonafides.

7. On merits of the matter, the learned advocate for the

respondent No.1/ plaintiff has submitted that the plaintiff is in possession of

the suit land and is constrained to approach the Court for protection of its

possession as there is a high-handed attempt to dispossess the plaintiff from

the suit land. It is argued that the suit land belongs to the State Government,

that the plaintiff was put in possession of the suit land on 11th March, 2002

by the State Government, that the State Government and the Sub-Divisional

Officer are defendants in the civil suit and party to the proceedings and they

are not aggrieved by the order passed by the learned District Judge and in

this background the grievance of the petitioner cannot be considered. It is

prayed that the petition be dismissed with costs.

8. Shri A.D. Sonak, learned A.G.P. has submitted that the

temporary injunction granted by the learned District Judge is against the

petitioner/ defendant No.3 and is not against the defendant Nos. 1 and 2

(State of Maharashtra and Sub-Divisional Officer) and the respondent Nos. 2

and 3 / defendant Nos. 1 and 2 are not concerned with the present matter.

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9. I have examined the documents placed on the record of the

petition. The learned District Judge has considered all the relevant aspects

and in paragraph 12 of the impugned order has succinctly recorded the

reasons for his conclusions. Paragraph 12 reads as follows :

"12. Admittedly, plaintiff-society was inducted in suit property as a lessee in year 2001-02 and the lease

remained in force till year 2012. There is no document on record to indicate that possession of suit property was ever

retrieved by defendant No.01 or 02. Claim of defendant No.03 that suit property vests in it, is not supported by any documentary evidence. Document at paper-book page

No.92 indicate that State of Maharashtra has refused to accord sanction to proposal of defendant No.03 of developing a shopping center and vegetable market on B.O.T. Basis, as proposed by it."

The considerations of the learned District Judge are apt and

proper and cannot be faulted with. It being an admitted position that the

plaintiff was put in possession of the suit land on 11th March, 2002 and

continued to be in possession till 31st July, 2012 on the basis of the

agreement dated 11th March, 2002 and nothing having been placed on

record to show that possession is taken from the plaintiff by following

procedure of law, in my view, the order passed by the learned District Judge

granting temporary injunction against the defendant No.3 is proper.

However, the order is required to be modified to the extent that the

possession of the plaintiff over the suit land is protected until the plaintiff is

evicted from the suit land by following procedure according to law.

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10. The undertaking given on behalf of the plaintiff that he will

deposit Rs.5,00,000/- before the Civil Court is accepted. The plaintiff shall

deposit Rs.5,00,000/- before the Civil Court within 15 days and the amount

shall be kept in fixed deposit in a nationalized bank until appropriate orders

are passed by the trial Court regarding refund / disbursement of the amount.

If the plaintiff fails to deposit the amount of Rs.5,00,000/-

within 15 days, the petitioner is granted liberty to file appropriate application

in this writ petition for revival of the writ petition.

As the civil suit is of 2013, the learned trial Judge is requested

to dispose the civil suit till 15th March, 2017.

JUDGE

RRaut..

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                                    C E R T I F I C A T E




                                                                   

I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.

Uploaded by : R.B. Raut, PS Uploaded on : 02.08.2016.