State Of Maharashtra Thr.The ... vs Vitthal Pandurang Kolpyakwar And ...
2017 Latest Caselaw 1019 Bom

                                   1
                                                                     sa272.04.odt


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

                  Second Appeal No.272 of 2004

   The State of Maharashtra,
   through the Collector, Chandrapur.                   ... Appellant/
                                                        Ori. Defendant

        Versus


   1. Vitthal s/o Pandurang Kolpyakwar,
      Occupation - Cultivation,
      R/o Sindewahi, Tahsil Sindewahi,
      District Chandrapur.

   2. Bank of Maharashtra,
      through Branch Manager,
      Sindewahi.                                        ... Respondents/
                                                            Ori. Plaintiffs

   Ms   Harshada   N.   Prabhu,   Assistant   Government   Pleader   for 
   Appellant.
   Shri   Prasad   Dharaskar,   Advocate,   holding   for   Shri   Anand 
   Parchure, Advocate for Respondent No.1.


               Coram : R.K. Deshpande, J.

Dated : 24th March, 2017

Oral Judgment :

1. The respondents are the original plaintiffs, who filed

sa272.04.odt

Special (State) Civil Suit No.14 of 1996 for declaration that any

portion or the construction of the plaintiff No.1, particularly

shown by Roman numerals V, VI, VII and VIII in the map

annexed with the plaint is not an encroachment on the road and

for permanent injunction restraining the defendant from

demolishing the said structure of the plaintiff No.1 and damages

of Rs.60,000/- along with interest. The suit was dismissed by the

Trial Court on 23-10-2001. In Regular Civil Appeal No.157 of

2001 preferred by the plaintiff No.1, the lower Appellate Court,

by its judgment and order dated 6-1-2004, has set aside the

decision of the Trial Court and a decree has been passed in

favour of the plaintiff No.1. Hence, the original defendant is

before this Court in this second appeal.

2. Two questions were involved before the Courts below -

(i) whether the construction made by the plaintiff No.1, which is

the subject-matter of the suit, is an encroachment over the land

owned by the State Highway Authorities?, and (ii) whether the

procedure prescribed under Section 23 of the Bombay Highways

sa272.04.odt

Act, 1955 was followed? The Trial Court holds that the

construction was on the property of the State Highway

Authorities, which was an encroachment, and a notice issued

under Section 23 of the said Act was duly served upon the

plaintiffs. The lower Appellate Court has reversed the findings of

the Trial Court on both these aspects. The ownership claimed by

the State Highway Authorities is based upon the notification

dated 19-4-1967 issued by the Government of Maharashtra,

published in the official gazette, in exercise of the powers

conferred by Sections 3, 4 and 6 of the Bombay Highways Act,

1955. The lower Appellate Court has held that the original

notification was not produced, and hence the notification

produced was not admissible in evidence.

3. The matter was admitted on 20-1-2005 and the

substantial questions of law framed, is reproduced below :

" Whether the Appellate Court erred in not taking

judicial notice of the Govt. Notification dated 19-4-1967?"

sa272.04.odt

4. Ms Prabhu, the learned Assistant Government Pleader

appearing for the Appellant/State, has relied upon Sections 56

and 57 of the Indian Evidence Act, 1872 and also upon Article 13

of the Constitution of India to urge that the notification is a law,

which is governed by sub-section (1) of Section 57 of the

Evidence Act. She has relied upon the decision of the Punjab &

Haryana High Court in the case of Jit Singh Mohar Singh v.

Municipal Committee, reported in 1961 CrLJ 272, wherein the

notification issued under Section 62(10) of the Punjab Municipal

Act, 1911 was held to be a law governed by sub-section (1) of

Section 57 of the said Act.

5. Shri Dharaskar, the learned counsel appearing for the

respondent No.1/original plaintiff No.1, has relied upon

Section 78 of the Evidence Act regarding proof of other official

documents. He submits that the Acts, orders or notifications of

the Central Government or the State Government need to be

proved in the manner indicated in the said provision, and since

sa272.04.odt

the notification in question is a photostat copy, the same could

not have been admitted in evidence. According to him, the

lower Appellate Court did not commit any error of law in holding

that such notification is not admissible in evidence.

6. The decision of the Punjab & Haryana High Court in the

case of Jit Singh Mohar Singh v. Municipal Committee, cited

supra, relied upon by the learned Assistant Government Pleader

clearly holds that the notification issued in exercise of the

statutory powers is governed by sub-section (1) of Section 57 of

the Evidence Act and judicial notice of it can be taken. Even

otherwise, the issuance of such a notification is an exercise of the

power of quasi legislation. It shall, therefore, be governed by

sub-section (1) of Section 57 of the Evidence Act to take judicial

notice. Section 78 of the Evidence Act relied upon by the

learned counsel for the respondent No.1 deals with the discretion

of the Court, and in the absence of challenge to the validity and

genuineness of such document, the proof, as required by

sub-section (1) of Section 78, is not called for. It has, therefore,

sa272.04.odt

to be held that the lower Appellate Court has committed an error

in holding that the notification is inadmissible in evidence under

sub-section (1) of Section 57 of the Evidence Act to set aside the

decision of the Trial Court. Consequently, the State Highway

Authority becomes the owner of the suit property. The

substantial question is, therefore, answered accordingly.

7. So far as the findings of the lower Appellate Court on

merits are concerned, the notice under Section 23 of the Bombay

Highways Act, 1955 is required to be issued to the occupier of

the premises. I have gone through the copy of the plaint and the

evidence of the plaintiff No.1 himself recorded before the Trial

Court. The plaintiff No.1 admits that his son Ajay was occupying

the suit property along with the plaintiff No.2-Bank of

Maharashtra as lessee of the plaintiff No.1. The notice was

issued in the name of the plaintiff No.1-Vitthal Kolpyakwar,

which was received by his son. In view of this, it cannot be said

that there was violation of Section 23 of the Bombay Highways

Act. The lower Appellate Court has failed to consider the fact

sa272.04.odt

that service of notice upon the occupier is the enough

compliance of Section 22 of the said Act.

8. It is also an undisputed position on record that the

construction was made above the plinth area in the year 1979

without obtaining the permission from the Highway Authorities.

This fact is admitted by the plaintiff No.1 in his own evidence.

About the construction made prior to 1967, the evidence is also

not sufficient, except the document at Exhibit 89, which was

issued in the year 1979.

9. In view of above, the second appeal is allowed. The

judgment and order dated 6-1-2004 passed by the lower

Appellate Court in Regular Civil Appeal No.157 of 2001 is hereby

quashed and set aside, and the decree passed by the Trial Court

dismissing the suit is restored. No order as to costs.

10. At this stage, the learned counsel for the respondent

No.1/plaintiff No.1, submits that the judgment delivered by this

sa272.04.odt

Court be stayed for a period of four weeks from today.

In view of the fact that the judgment delivered by the

lower Appellate Court was operating pending the decision of this

appeal, this judgment shall remain suspended for a period of

four weeks; at the end of which, the interim order shall stand

vacated without reference to the Court.

JUDGE.

Lanjewar