Mohamad Lulfulla Mohd Ali vs State Of Mah & Ors
2017 Latest Caselaw 8610 Bom

                                             (1)                  WP No.7235/2004

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD.

                        WRIT PETITION NO. 7235 OF 2004

 Mohamad Lulfulla s/o Mohd. Ali                                                        
 Age : 70 years, occu.: business                                                       
 R/o Ganimpura, Nanded,                                                                
 Taluka and District Nanded.                                         Petitioner.

          Versus

 1        The State of Maharashtra
          Through The Secretary,
          Public Works Department,
          Mantralaya, Mumbai.

 2        The Public Works Department,
          Through Executive Engineer,
          Nanded.

 3        Nanded-Waghala Municipal Corporation
          Through the Commissioner,
          District Nanded.


 4        The Collector, Nanded
          District Nanded.


 5        The Maharashtra State Road
          Development Corporation, Mumbai.
          Through the Secretary/Engineer.                            Respondents.


                                       ***
 Mr. P.V. Mandlik, Advocate for the petitioner.
 Smt. V.S. Chaudhary, A.G.P. for respondent Nos.1,2,4 and 5.
 Mr. M.D. Narwadkar, Advocate holding for                                              
 Mr. M.V. Deshpande, Advocate for respondent No.3.
                                       ***



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                                                 (2)                   WP No.7235/2004

                                          CORAM :        RAVINDRA V. GHUGE
                                                                    AND
                                                         SUNIL K. KOTWAL, JJ.

Dated : 10-11-2017.

ORAL JUDGMENT (PER RAVINDRA V. GHUGE ) :-

1. By this petition, the petitioner has put-forth prayer

clauses 13-B (I), (II) and 13-C, which read as under :-

13-B (I) Appropriate writ/directions may be issued against the respondents prohibiting them from demolishing the construction of the petitioner and from taking the possession of the petitioner's land by interfering in the land of petitioner i.e. land CTS No. 10447 admeasuring 37464.4 sq. Mtrs. situated at Nanded without following due process of law, without making acquisition of the land, without paying compensation of the land and constructed portion as per market price to the petitioner. (II) The respondents may be directed that, if they require the land for widening of the road, they may initiate the land acquisition proceedings, and pay the necessary compensation as per the market price to the petitioner in respect of his land and thereafter they proceed further (without prejudice to the rights of the petitioner to, challenge the same).

13-C Pending hearing and final disposal of this writ petition the respondents may be directed not to take possession of the petitioner's land from CTS No. 10447 admeasuring 37464.4 Sq. Mtrs. situated at Nanded and not to disturb his construction and possession over the above said property of the petitioner.

2. We have considered the submissions of the learned

Counsel for the petitioner, the learned A.G.P. and the learned Counsel

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for respondent No.3.

3. The contention of the petitioner is that the Corporation is

intending to resort to a road widening activity and the said road

widening is likely to deprive the petitioner of a portion of his land in

C.T.S. No. 10447. It is, therefore, contended that the road widening

programme would result in taking away a portion of the land of the

petitioner and hence it would amount to acquiring a portion of his

land without following the procedure laid down in the Land

Acquisition Act, 1894.

4. The learned Counsel for the Corporation has relied on

the affidavit-in-reply dated 18.02.2005. He specifically points out

from paragraph No.5 that the Corporation has not resorted to any

development plan and hence there is no question of acquiring the

land of the petitioner. The road on which the Corporation has

undertaken an activity, has been a 30 metres wide road. In

paragraph No.6 of the affidavit, it is stated that the portion of the

road going from Nanded City to Hingoli District near the Rana Pratap

Square, is 30 metres (100 ft.) wide road. As per the Government

Resolution dated 09.03.2001, buildings are not permitted to be

erected in an area of 20 metres from the centre of the road or 4.5

metres from the boundaries of the road. Whoever erects a structure

in violation of the said Government Resolution, can be said to have

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caused encroachment and hence the Corporation is merely clearing

the road of such encroachment.

5. Learned Counsel for the petitioner submits that the

contentions of the Corporation have been refuted by the petitioner by

filing an affidavit in re-joinder dated 08.03.2005.

6. We are informed that the petitioner has preferred a

Regular Civil Suit No. 147/2004 before the learned Civil Judge,

Senior Division, Nanded. The Executive Engineer of the Public Works

Department-respondent No.2 herein and the Municipal Corporation

as well as the Collector, Nanded who are respondent Nos.3 and 4

respectively in this Petition, have been arrayed as defendants. The

suit is filed for seeking injunction against the respondents.

7. Considering the above, we find that disputed issues have

been raised in this Petition in the light of the Corporation contending

that there is no project undertaken by the Corporation requiring

acquisition of land. Per contra, the petitioner contends that without

acquiring the land, the Corporation is in fact grabbing the land of the

petitioner without following the due procedure.

9. Such disputed questions cannot be gone into in the

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India. The Civil Suit preferred by the petitioner is for

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claiming a title over the suit property, and therefore, trying to

establish that the Corporation is acquiring his land. The above

disputed questions can be gone into in such civil litigation.

10. Considering the above, we do not find that this Petition

can be entertained under Article 226 of the Constitution of India and

the same is, therefore, dismissed. Rule is discharged.

11. It is made clear that the contentions raised by the

litigating sides in this Petition can be gone into by the Competent

Court dealing with Regular Civil Suit No. 147/2004 or in such

litigation originating from the said suit.

             ( SUNIL K. KOTWAL)                 ( RAVINDRA V. GHUGE)
                    JUDGE                                    JUDGE




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