Paramanand Variyomal Katyari & ... vs State Of Maharashtra & 3 Others
2017 Latest Caselaw 9441 Bom

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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

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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

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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

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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.

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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

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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

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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-