Bombay High Court
Sayyed Ratanbhai Sayyed Died ... vs Shirdi Nagar Panchayat Through ... on 13 October, 2017
Bench: R.D. Dhanuka
WP 11949/17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11949/2017
1] Sayyed Ratanbhai Sayyed,
Since deceased through his
Legal heirs.
1-A] Mahmood Sayyedbhai Sayyed,
Age : 38 Years, Occ. Business
2] Gajanan S/o. Baburao Kajale,
Age : 75 Years, Occu. Business
3] Raosaheb S/o Murlidhar Gondkar,
Age : 55 Years, Occ. Business,
4] Dnyaneshwar S/o Murlidhar Sonawane,
Age : 45 Years, Occu. Business,
5] Sanjay S/o Deelip Koditkar,
Age : 48 Years, Occu. Business,
6] Prabhakar S/o Ramchandra Vaidya,
Age : 67 Years, Occu. Business,
7] Rajendra S/o Manohar Manekar,
Age : 48 Years, Occu. Business
8] Jayesh S/o Ramchandra Bobde,
Age : 35 Years, Occu. Business,
9] Shyam S/o Ganpat Bobde,
Age : 62 Years, Occu. Business,
10] M.L. Kulkarni
Age : 65 Years, Occu. Business,
11] Mohan S/o Kacharu Jejurkar,
Age : 52 Years, Occu. Business,
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12] Dnyaneshwar S/o Jagannath Nagare,
Age : 35 Years, Occu. Business.
13] Ashok S/o Anantrao Shinde,
Age : 59 Years, Occu.Business
14] Arunkumar S/o Popatlal Jani,
Age : 48 Years, Occu. Business
15] Ashok S/o Deoram Shivde,
Age : 52 Years, Occu. Business
16] Nana S/o Kedar Lade,
Age : 72 Years, Occu. Business
17] Rajendra S/o Sukhdeo Sajan,
Age : 35 Years, Occu. Business,
18] Madhav S/o Bhikaji Gondkar,
Since deceased through
His Legal Heirs & Representative,
18-A] Ashok S/o Madhav Gondkar,
Age : 52 Years, Occu. Business,
19] Bhagawat S/o Tukaram Thorat,
Since deceased through his
Legal heirs & Representatives,
19-A] Dattatraya S/o Bhagwat Thorat,
Age : 42 Years, Occu. Business,
20] Natha S/o Shankar Shelar,
Since deceased through his
Legal Heirs & Representatives,
20-A] Ashok S/o Eknath Shelar,
Age : 57 Years, Occu. Business
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21] Bhikan S/o Baburao Gurav,
Since deceased through his
Legal heirs & Representatives,
21-A] Ramesh S/o Bhikan Gurav,
Age : 62 Years, Occu. Business,
22] Popat S/o Kisan Jejurkar,
Since deceased through his
Legal Heirs & Representatives,
22-A] Kishor S/o Popat Jejurkar,
Age : 40 Years, Occu. Business
23] Shankarlal S/o Mansukhlal Jani,
Since deceased through his
Legal heirs & Representatives,
23-A] Suresh S/o Shankarlal Jani,
Age : 58 Years, Occu. Business
24] Babu S/o Nana Sonar,
Since deceased through his
Legal heirs & Representatives,
25-A] Dattatraya S/o Balkrushna Chintamani,
Age : 55 Years, Occu. Business,
25] Krushnarao S/o Mahaling Shervekar,
Since deceased through his
Legal heirs.
26-A] Ganesh @ Gajanan S/o Krushnarao Shervekar,
Age : 45 Years, Occu. Business
27] Ramchandra S/o Ganpat Mali,
Since deceased through his
Legal Heirs & Representatives,
27-A] Deoram S/o Ramchandra Sajan,
Age : 52 Years, Occu. Business,
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28] Baban S/o Baburao Pawar,
Since deceased through his
Legal Heirs & Representatives,
28-A] Sanjay S/o Baban Pawar,
Age : 40 Years, Occu. Business,
29] Indubai W/o Baburao Pawar,
Since deceased through his
Legal Heirs & Representatives,
29-A] Sanjay S/o Baban Pawar,
Age : 40 Years, Occu. Business,
30] Bansi S/o Mohan Dahale,
Since deceased through his
Legal Heirs & Representatives,
30-A] Manoj S/o Sudhakar Dahale,
Age : 42 Years, Occcu. Business
31] Bhalchandra S/o Mahadeo Kulkarni,
Since deceased through his
Legal Heirs & Representatives,
31-A] Vijay S/o Bhalchandra Kulkarni,
Age : 66 Years, Occu. Business,
32] Madhukar S/o Balkrushna Deshpande,
Since deceased through his
Legal heirs & Representatives,
32-A] Saurabh S/o Vikas Shinde,
Age : 22 Years, Occu. Business,
33] Baburao S/o Chindhu Shivde,
Since deceased through his
Legal Heirs & Representatives,
33-A] Indubai W/o Shaligram Shivde,
Age : 40 Years, Occu. Business
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34] Raosaheb S/o Umaji Jadhav,
Since deceased through his
Legal Heirs & Representatives,
34-A] Sushila W/o Raosaheb Jadhav,
Age : 45 Years, Occu. Business,
35] Tolani,
Since deceased through his
Legal Heirs & Representatives,
35-A] Sunil S/o Jethanand Tolani,
Age : 35 Years, Occu. Business,
36] Kishandas Premani,
Since deceased through his
Legal Heirs & Representatives,
36-A] Sunita W/o Kisandas Premani,
Age : 57 Years, Occu. Business,
37] Lalchand S/o Hirachand Tolani,
Since deceased through his
Legal Heirs & Representatives,
37-A] Rani D/o Lalchand Tolani,
Age : 45 Years, Occu. Business,
37] Jagannath S/o Trymbak Kulthe,
Since deceased through his
Legal Heirs & Representatives,
37-A] Nandkumar S/o Jagannath Kulthe,
Age : 45 Years, Occu. Business,
38] Jagannath S/o Chandrabhan Lute,
Age : 85 Years, Occu. Business,
39] Sulochana Vasant Koditkar,
Since deceased through her
Legal Heirs & Representatives,
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39-A] Pradeep S/o Vasant Koditkar,
Age : 52 Years, Occu. Business
40] Vitthal S/o Patilba Kote,
Since deceased through his
Legal Heirs & Representatives,
40-A] Ravindra S/o Vilas Kote,
Age : 35 Years, Occu. Business,
All R/o. Shirdi, Tq. Rahata,
District - Ahmednagar.
...Petitioners..
Versus
1] Shirdi Nagar Panchayat,
Shirdi. Through its Chief Officer,
Shirdi, Tq. Rahata,
District - Ahmednagar.
2] The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai.
3] The District Collector,
Collector Office,
Ahmednagar.
4] Shri Saibaba Sansthan, Shirdi,
Through its Chairman,
R/o Rahata, Tq. Rahata,
District : Ahmednagar.
5] Uttam S/o Rambhaji Shelke,
Age : 63 Years, Occu. Agri,
R/o. Mothe Babanagar,
Nagar Manmad Road, Shirdi,
District : Ahmednagar.
...Respondents...
.....
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Shri V.J. Dixit, Senior Advocate i/b Shri L.V. Sangeet,
Advocate for petitioners.
Shri V.D. Hon, Senior Advocate i/b Shri A.V. Hon,
Advocate for respondent no.1.
Shri A.B. Girase, Government Pleader with Shri B.A.
Shinde and Mrs.M.A. Deshpande, AGPs for respondent nos.2
& 3.
Shri S.R. Chowkidar, Advocate for respondent no.4.
Miss.Pradnya Talekar and Shri K.M. Nagarkar, Advocates
for respondent no.5.
.....
CORAM: R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
DATE: 13.10.2017
JUDGMENT (Per R.D. Dhanuka, J.):
1] Heard learned counsel appearing for the parties.
2] By this petition filed under Articles 226 and
227 of the Constitution of India, the petitioners seek a
writ of certiorari, order or direction in the nature of
writ of certiorari and pray for quashing and setting
aside the order dated 26.9.2017 arising out of Writ
Petition No.78/2004. The petitioners also seek a writ of
mandamus inter-alia praying for an order and direction
against the respondent no.5 for allegedly committing
fraud on this Court by allegedly abusing the judicial
process and obtaining collusive order. The petitioners
have amended the prayers in the writ petition and seek
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additional prayer of writ of certiorari and seek
correction and/or modification or for quashing and
setting aside the order dated 26.9.2017 passed by this
Court in Contempt Petition No.258/2017.
3] Some of the relevant facts for the purpose of
deciding this writ petition and the contempt petition are
as under.
4] At the outset, the learned counsel for the
respondent no.5 (original petitioner in Writ Petition
No.78/2004) through his counsel raises a preliminary
objection about the maintainability of this writ petition
by which the petitioners have prayed for a writ of
certiorari for quashing and setting aside the order dated
26.9.2017 passed by the coordinate Bench of this Court in
contempt petition filed by the respondent no.5. At the
same time, the learned Senior Counsel for the petitioners
has also raised an issue of maintainability of the
Contempt Petition No.258/2017 itself filed by the
respondent no.5 on various grounds.
5] It is the case of the petitioners that prior to
30.8.1974, the land bearing Survey No.1 Hissa No.1-A 1/1-
A/2B2 of Shirdi, Taluka Kopargaon Dist.Ahmednagar, lying
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to the west of Shirdi Gaothan and adjacent to Nagar-
Manmad road was leased out in small pieces by the
Grampanchayat to the petitioners and some other persons
for the purpose of carrying out trades like flower shops,
sweet mart, hotel etc. The writ petitioners were
allegedly paying the rent of their respective premises to
the Grampanchayat. The Grampanchayat and Shri Saibaba
Sansthan, Shirdi, intended to take possession of the
entire 3 Gunthas land allegedly forcibly from the
petitioners.
6] The petitioners, therefore, filed a suit bearing
Regular Civil Suit No.600/1976 seeking declaration that
they were the lawful tenants over the suit property and
sought permanent injunction against those defendants not
to take possession of the suit premises otherwise than
due course of law. The said suit was compromised between
the parties to the said suit and a decree in terms of
compromise was drawn by the learned trial Judge on
20.8.1979. It is the case of the petitioners that under
the said compromise decree, it was agreed that the shop
owners, who were mentioned in Schedule B of the
compromise term i.e. 45 shop owners, would be transferred
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and would be allotted appropriate land in Survey No.170.
It was agreed that 45 shop keepers, including the
petitioners herein, would be allotted specific area for
their shops and will have to pay the rent to the
respondent nos.1 & 2. It is the case of the petitioners
that Shri Saibaba Sansthan, Shirdi, had to construct
shops over the said land and to allot the same to those
45 shop keepers.
7] The petitioners filed execution proceedings in
the Court of Civil Judge, Senior Division, Kopargaon,
bearing Regular Darkhast No.5/1990 on 13.11.1990. The
Shri Saibaba Sansthan, Shirdi, also filed a separate
execution proceeding bearing Regular Darkhast No.1/1990
for execution of the said compromise decree.
8] The petitioners also applied for temporary
injunction restraining the judgment debtors from
demolishing their shops or removing their shops from the
suit property during the pendency of the said execution
application. The execution application filed by the
petitioners was opposed by the Shri Saibaba Sansthan,
Shirdi. It was contended by the Shri Saibaba Sansthan,
Shirdi, that near about 19 shop keepers had made
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encroachments over the Palkhi road. On 21.5.2004, the
executing Court passed an order allowing the application
filed by the petitioners partly and restrained the
judgment debtors from removing or demolishing the shops
of the decree holders whose names were shown in Schedule
B alongwith compromise decree till the judgment debtors
would make temporary adjustment of their shops in a
triangle which was adjacent towards western site of the
proposed building in suit land.
9] The respondent nos.1 & 2 herein filed a writ
petition bearing Writ Petition No.5839/2004 thereby
impugning the order dated 21.5.2004 passed by the
executing Court. It was contended by the respondent
nos.1 & 2 that the compromise decree had become in-
executable because of sanction of new development plan
which had come into force on 25.2.1993 wherein the Palkhi
road was proposed to be widened by 15 meters and further
modified and reduced to 9 meters. It was also contended
in the writ petition that the decree also became in-
executable in view of the provisions of Highway Act and
in view of the reservation shown in the development plan
to the existing position of Survey No.1/1-A, 1/1-A/2B2.
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10] The said writ petition was opposed by the
petitioners. This Court called the record and
proceedings from the trial Court and thereafter directed
the Deputy Director of Town Planning, Nashik Region to
measure 9 meters Palkhi road which was shown in town
planning scheme of 25.2.1993 and to carry out inspection
of the said plot and to submit the report. The
authorities also drew a map of the spot by pointing out
some of the shops on the Palkhi road. By an order dated
31.7.2007, this Court directed the executing Court to
frame the necessary issue arising out of the pleadings of
the parties including the issue of executability of the
decree by framing specific issue and directed to record
specific finding thereon. This Court directed the
executing Court to dispose of the pending execution
applications as early as possible and within a period of
three months from the date of receipt of the said order
of this Court.
11] By the said order, this Court quashed and set
aside the order dated 21.5.2004 passed by the executing
Court. This Court directed the parties to maintain
status quo in respect of the subject premises till
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31.10.2007, which status quo was extended from time to
time. Pursuant to the said order passed by this Court,
Shri Saibaba Sansthan, Shirdi, issued a public notice in
the newspaper to all the interested parties. The
petitioners were aggrieved by the said order passed by
this Court and filed Special Leave to Appeal (Civil)
No.27988/2010 which was converted into Civil Appeal
No.3154/2011 before the Supreme Court.
12] In the meanwhile, the respondent no.5 filed a
writ petition bearing Writ Petition No.78/2004 in this
Court inter-alia praying for removal of the encroachments
from Palkhi road. It was the case of the respondent no.5
in the said writ petition that as a result of stay grated
by the Chief Minister of the State, the encroachment
drive was stayed. The said stay was subsequently
vacated. The State Government filed an affidavit in the
said writ petition that all the encroachments had been
removed barring 13 shops as the status quo order has been
passed by the learned Civil Judge, Senior Division, on
execution application. The State Government pointed out
that it had filed a writ petition in this Court against
the order passed by the executing Court which was pending
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before the learned Single Judge. The learned Single
Judge of this Court in the said writ petition recorded
the statements made by the State Government in the said
affidavit and observed that it was clear that the State
and its authorities had taken all possible steps to
remove the encroachments and accordingly the grievance
made in the said writ petition did not survive. The said
writ petition came to be disposed of.
13] The Collector had also issued a separate
notification on 29.3.2003 u/s 126(4) of the Maharashtra
Regional Town Planning Act, 1966 read with Section 6 of
the Land Acquisition Act, 1860 proposing to acquire the
land for the purpose of widening the Palkhi road situated
within the limits of Shirdi Nagar Panchayat. Shri
Saibaba Sansthan contributed a sum of Rs.1,23,42,262/-
towards compensation for widening of the road. The said
acquisition proceedings were challenged by some of the
parties. By an order dated 8.12.2003, the Division Bench
of this Court dismissed the said Writ Petition
No.2183/2003 holding that there was no illegality in the
acquisition proceedings.
14] The respondent no.1 i.e. Shirdi Nagar Panchayat,
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Shirdi demolished some of the shops constructed on the
Government land Survey No.170. However, in view of the
status quo order granted by the executing Court on
19.12.2003, the respondent no.1 could not carry out
further demolition. The respondent no.1 applied for
clarification of the order of status quo from the Supreme
Court, before whom the Special Leave to Appeal was filed
by the petitioners in which status quo order was
continued from time to time. The Supreme Court passed an
order on 28.2.2011 on the application filed by the
respondent no.1 and clarified that the status quo order
which had been granted vis-a-vis Shirdi Sansthan and the
State Government will not come in the way of any action
being taken by the respondent no.1 - Council in
accordance with law.
15] The respondent no.1 thereafter issued a notice
upon the petitioners for demolition. The said notice was
challenged by the petitioners by filing a suit. The
respondent no.1 invoked various provisions of the MRTP
Act as well as the Maharashtra Municipalities Act calling
upon the petitioners to remove their structures from the
land in question. The petitioners filed a suit bearing
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Regular Civil Suit No.139/2011 in the Court of Civil
Judge, Senior Division, Kopargaon, and prayed for
permanent injunction. The learned trial Judge refused to
grant injunction in favour of the petitioners. The
learned District Judge, however, allowed the appeal filed
by the petitioners and granted injunction on 11.5.2011
against the respondent no.1.
16] The respondent no.1 thereafter filed a writ
petition in this Court. By an order dated 9.6.2011, the
order of ad-interim injunction granted by the learned
District Judge was maintained. The learned trial Judge,
however, was directed to decide the application for
injunction on its own merits within a period of one
month. The trial Court thereafter passed an order on
17.10.2011 rejecting the application for temporary
injunction holding that the petitioners herein had failed
to establish a prima facie case and that the balance of
convenience was not in favour of the petitioners. The
petitioners thereafter filed a writ petition bearing Writ
Petition No.8032/2012 impugning the said order passed by
the learned trial Judge. The writ petition filed by the
petitioners came to be dismissed. The Letters Patent
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Appeal filed by the petitioners came to be withdrawn.
The petitioners thereafter filed a Special Leave Petition
before the Supreme Court. The Special Leave Petition
filed bay the petitioners arising out of the order passed
by this Court and the earlier Special Leave to Appeal
arising out of the order passed by this Court in the
execution proceedings were heard together by the Supreme
Court.
17] By an order dated 22.2.2016, the Supreme Court
dismissed the appeals filed by the petitioners with
certain directions. The Supreme Court ordered that the
State and its functionaries shall undertake an exercise
to identify a suitable site to accommodate the
petitioners. It was made clear that even if such a site
is not available in the immediate proximity of the land
presently in the occupation of the petitioners, a sincere
endeavour would be made to locate a plot as near as
possible. The District administration in coordination
with Shri Saibaba Sansthan and other authorities would
undertake the process. The petitioners were also
directed to cooperate in the pursuit and directed not to
delay the completion thereof.
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18] It was made clear that in case the endeavour to
identify an alternative plot did not yield any result in
spite of sincere efforts, the petitioners would then be
entitled to adequate monetary compensation. The Supreme
Court held that a lump-sum of Rs.20,00,000/- and
Rs.15,00,000/- each respectively for the bigger and
smaller shops or stalls i.e. of size 16 x 11 and 7 x 11
respectively would be reasonable palliative to the
petitioners. The Supreme Court directed that the entire
process on both counts should be completed within a
period of six weeks from the date of the said order. The
Supreme Court directed the State Government and Shri
Saibaba Sansthan to bear the amount of compensation
payable in equal shares and to deposit the same in this
Court within a period of six weeks. It was directed that
the allotment of new site / deposit, as directed, would
be a condition precedent for further action in terms of
the impugned notice. The Registrar General of this Court
is directed to make suitable arrangements for
disbursement of the amount to the petitioners as due to
them as expeditiously as possible on proper
identification. Insofar as the notice issued by the
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respondent no.1 is concerned, the Supreme Court upheld
the said notice and did not find any illegality in the
said notice.
19] The Sub Divisional Officer, Shirdi, with
Executive Officer of Shri Saibaba Sansthan issued notices
to the petitioners in the month of March, 2016, asking
them to remain present for inspection of the land as per
the directions of the Supreme Court. It is the case of
the petitioners that the Government authorities and Shri
Saibaba Sansthan offered the optional lands in various
survey numbers near the temple, which is more than 98 in
number so as to facilitate the petitioners and the
respondents to decide the area of the land on which the
construction of the shops to be undertaken or in the
ready buildings. The meetings between the petitioners
and Shri Saibaba Sansthan, Shirdi and Sub Divisional
Officer were admittedly held on 2.3.2016; 5.3.2016;
9.3.2016 and 13.3.2016. There was, however, no consensus
amongst the petitioners for sites for rehabilitation
proposed to them by the State Government as well as by
Shri Saibaba Sansthan.
20] It appears that on 5.4.2016, a meeting was
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convened under the chairmanship of the Chief Minister
wherein certain directions were issued by the Chief
Minister. Since there was no consensus between the
parties for the sites for rehabilitation within a period
of six weeks, as directed by the Supreme Court, Shri
Saibaba Sansthan applied for an order from the Division
Bench of this Court to deposit the amounts in this Court.
This Court accordingly permitted Shri Saibaba Sansthan to
deposit the amount. The amount was accordingly deposited
by Shri Saibaba Sansthan in this Court on 5.4.2016
pursuant to the said order dated 18.3.2016.
21] It is the case of the petitioners that after the
said amount was deposited as directed by the Supreme
Court by Shri Saibaba Sansthan, the Town Planning and
Valuation Department, Ahmednagar division, sent a
communication on 11.5.2016 to the Sub Divisional Officer,
Shirdi, suggesting that in view of the order of the
Supreme Court, 84 shop keepers were entitled to get the
shops. The said office submitted a chart where the
rehabilitation of the present petitioners was possible by
constructing a proposed building. It is the case of the
petitioners that in the said meeting held by the Chief
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Minister on 5.4.2016, the representative of the
petitioners were present alongwith the Collector,
Ahmednagar, and various other persons. It is the case of
the petitioners that in the said meeting, it was
positively stated that as per the said chart submitted by
the Town Planning Officer, the petitioners could be
rehabilitated in view of the report submitted by the
Assistant Director, Town Planning. A similar resolution
also is alleged to have been passed on 15.6.2017 by Shri
Saibaba Sansthan in respect of rehabilitation of the
present petitioners by allotting suitable land to the
petitioners. Neither Shri Saibaba Sansthan nor the
authorities obtained any extension of time from the
Supreme Court or for modification of the order for making
an offer for alternative land or shops.
22] On 22.3.2017, the respondent no.5 filed a
Contempt Petition No.258/2017 in this Court inter-alia
praying for an action against the respondent nos.2 to 7
as per the provisions of the Contempt of Courts Act, 1971
in view of the order passed by this Court in Writ
Petition No.78/2004 and in view of the facts and
circumstances mentioned in the contempt petition. On
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30.3.2017, the Division Bench of this Court directed the
office to issue simple notice to the respondent no.2
returnable on 5.6.2017. The said contempt petition
thereafter appeared before this Court on 26.9.2017. The
present petitioners are not parties to the said contempt
petition as no reliefs were sought against them by the
respondent no.5. This Court after hearing the learned
counsel appearing for various parties and after making
various observations, directed the Collector, Ahmednagar,
to provide appropriate Police protection to the
respondent no.2 in the said contempt petition i.e. the
Chief Officer, Shirdi Nagar Panchayat, Shirdi, to remove
the encroachments situated on Palkhi road so as to remove
those shop keepers on the Palkhi road on the date such
Police protection is required from time to time as may be
informed by the respondent no.2 therein.
23] The respondent no.2 was directed to inform the
Collector about the date and time of Police protection
needed through him three days in advance. This Court
also directed the respondent nos.2 & 3 to take
appropriate steps to remove remaining encroachments on
the Palkhi road also in accordance with law. The said
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order passed by this Court is not impugned by any of the
respondents to the said contempt petition including Shri
Saibaba Sansthan and the Chief Officer, Shirdi Nagar
Panchayat, Shirdi.
24] The petitioners, however, filed a writ petition
bearing No.11949/2017 praying for a writ of certiorari
for quashing and setting aside the said order passed by
this Court on 26.9.2017 in the contempt petition. During
the pendency of this writ petition, the petitioners
amended the writ petition and also prayed for an order
for correction and/or modification by quashing and
setting aside the order dated 26.9.2017 passed by this
Court in contempt petition.
25] Learned counsel appearing for the parties thus
addressed this Court in this writ petition at great
length in support of their rival submissions. Insofar as
the issue of maintainability of this writ petition is
concerned, Miss.Talekar, learned counsel for the
respondent no.5, invited our attention to the prayers in
this writ petition seeking a writ of certiorari or
quashing and setting aside the order passed by Division
Bench of this Court in the contempt petition and could
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submit that a writ petition is not maintainable for
quashing and setting aside the order passed by the
coordinate Bench of this Court in the contempt petition.
She submits that even if the petitioners were aggrieved
by the said order passed by this Court in contempt
petition in any manner whatsoever, the petitioners could
have filed only a Special Leave Petition before the
Supreme Court u/s 19(1)(b) of the Contempt of Courts Act,
1971. She submits that the petitioners are directly or
indirectly praying for stay of the order passed by the
Supreme Court on 22.2.2016 in Civil Appeal No.14016/2016
and other companion matters, which order is already
implemented by Shri Saibaba Sansthan and by the State
Government by depositing the amount in this Court.
26] Learned counsel placed reliance on an unreported
judgment of this Court in case of Satish Mahadeorao Uke
v. The Hon'ble the Chief Justice, High Court of
Judicature at Bombay & others delivered on 4.5.2017 in
Writ Petition No.3533/2017 in support of the submission
that the order passed by a coordinate Bench of this Court
in contempt petition cannot be set aside by another
coordinate Bench of the same Court in a writ petition.
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She submits that the order passed by the Supreme Court
for payment of compensation can be implemented but the
petitioners will have to vacate their premises in
implementation of the order passed by the Supreme Court.
She submits that even if the writ petition is filed by
the petitioners on the ground that any fraud was alleged
to have been practiced by the respondents to this
petition and more particularly the respondent no.5, such
allegations are totally vague in the writ petition and
thus no relief can be granted bay this Court in the writ
petition. She submits that the petitioners were neither
necessary parties nor proper parties to the contempt
petition. The learned counsel raised various other
objections on merits which will be dealt with in the
later part of this judgment.
27] Mr.V.J. Dixit, learned Senior Advocate for the
petitioners, on the other hand, relied upon an unreported
judgment of the Supreme Court dated 2.1.2017 in Criminal
Appeal No.1234/2007 in support of the submission that if
according to the respondent no.5, the parties to the
contempt petition had committed contempt of the order
passed by the Supreme Court, the contempt proceedings
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could be filed only before the Supreme Court and not in
this Court. He submits that the contempt petition filed
by the respondent no.5 in this Court itself was thus
without jurisdiction and no order could be passed by this
Court in the said contempt petition.
28] Insofar as preliminary objection raised by the
learned counsel for the respondent no.5 that this writ
petition itself is not maintainable praying for quashing
and setting aside the order passed by the Division Bench
of this Court in the contempt petition is concerned, it
is submitted by the learned Senior Counsel that the
petitioners were deliberately not impleaded as parties to
the contempt petition filed by the respondent no.5. The
respondent no.5 had also suppressed various true and
correct facts and have not brought on record the
subsequent events happened after order of the Supreme
Court. He submits that his clients are directly affected
by the order passed by this Court in the said contempt
petition. The petitioners being not party to the said
contempt petition thus could not have filed a Special
Leave Petition against the said order passed by this
Court and thus the only remedy available to the
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petitioners for quashing and setting aside the said order
passed by the contempt Court, was to challenge the said
order on the ground of fraud committed by the respondent
no.5 in collusion with others by filing a separate writ
petition.
29] In support of this submission, the learned
Senior Counsel has placed reliance on the judgment of the
Supreme Court in case of Ramchandra Ganpat Shinde &
another v. State of Maharashtra & others (1993) 4 SCC 216
and in particular paragraph nos.10 and 11 and would
submit that this Court alone could correct its own order
in the contempt petition, which order was obtained by the
petitioner in the said contempt petition in collusion
with others and by practicing fraud on this Court.
30] He also placed reliance on the judgment of the
Supreme Court in case of Union of India v. Subedar
Devassy PV (AIR 2006 SC 909) and in particular paragraph
nos.2 & 6 and would submit that the review petition is
maintainable against the said order passed by this Court
in the contempt petition. He submits that the reliefs
sought by the petitioners in the writ petition are also
in the nature of review petition.
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31] The next submission of the learned Senior
Counsel for the petitioners is that there was no
direction of any nature whatsoever issued by this Court
in the order dated 5.7.2005 passed in Writ Petition
No.78/2004. He submits that on the contrary, by the said
order dated 5.7.2005 in the said writ petition, the said
writ petition was disposed of as did not survive. He
submits that the contempt petition filed by the
respondent no.5 was thus not maintainable on that ground
itself.
32] The next submission of the learned Senior
Counsel for the petitioners is that the contempt petition
itself was barred by Section 20 of the Contempt of Courts
Act, 1971, in view of the fact that the order which is
allegedly violated by the respondents to the contempt
petition was passed on 5.7.2005, whereas the contempt
petition is admittedly filed on 22.3.2017, which is after
one year from the date of alleged contempt. He submits
that it is not the case of the petitioners that the
alleged breach of the order passed by this Court by the
contemnors was continuous breach of the order. In
support of this submission, the learned Senior Counsel
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placed reliance on the judgment of the Supreme Court in
case of Pallav Sheth v. Custodian & others (2001 (4)
Mh.L.J., 1) and in particular paragraph nos.24, 44, 47
and 48.
33] The next submission of the learned Senior
Counsel for the petitioners is that this Court has
admittedly issued only a simple notice upon the
respondent no.2 by an order dated 30.3.2017. No notice
has been admittedly issued by this Court under Rule 8 of
the Contempt of Courts Rules, 1992 i.e. in Form I of the
said Rules upon any of the contemnors. He submits that
the contempt Court thus has not taken cognizance of any
contempt of the orders passed by this Court in the said
order and had not framed any charges. He submits that
the contempt Court thus could not have issued any
directions to the respondent no.1 in the writ petition
for seeking any Police protection from the Collector and
for demolishing the structures of the petitioners and
also could not have directed the Collector to provide any
Police protection for demolition of the structures on
Palkhi road or other structures. It is submitted that
the entire order passed by this Court is thus vitiated
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being contrary to the provisions of the Contempt of
Courts Act, 1971 read with Rules.
34] Learned Senior Counsel for the petitioners
invited our attention to Rule 8 and 9, Chapter XXXIV of
the Contempt of Courts Rules and would submit that the
respondent No.5 had not complied with the provisions of
the said Rule before or after filing of the Contempt
Petition. He submits that the direction issued by this
Court in the said Contempt Petition to remove the
encroachments was thus not contemplated at this stage.
In support of this submission, he placed reliance on Rule
22 of the Contempt of Courts Rules. He submits that the
interim direction issued by this Court was without any
provisions in the Act or the Rules.
35] A reliance is placed on the judgment of this
Court in the case of Saurashtra Vanza Gnyati Yuvak Mandal
v. Municipal Corporation of Greater Bombay, [2006 (6)
Bom.C.R. 44] and in particular paragraphs 2, 4, 6 and 10
and it is submitted that the affidavits can be filed by
the parties who are alleged to be guilty of contempt only
after notice in Form-1 is issued by the Court and until
such notice is issued, no directions for compliance with
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the order passed by the Court can be issued in the
Contempt Petition.
36] After relying upon various correspondence and
the resolutions passed by Shri Saibaba Sansthan, Shirdi
and the minutes of meeting held by the Chief Minister, it
is submitted by the learned Senior Counsel that 13
persons are there on the Palkhi Road, whereas the others
are in the garden area. He submits that the Government
had already issued notification on 27.03.2003 thereby
changing reservation of the plots in question and thereby
reserving 50% for the shopping centres whereas the
remaining 50% for garden. He submits that these facts
were not brought to the notice of this Court in the
Contempt Petition by the respondent No.5. Learned Senior
Counsel placed reliance on various paragraphs of the
order passed by the Supreme Court and in particular 57,
60 to 64 and would submit that there is no time limit of
six weeks provided by the Supreme Court in the said
judgment. He also invited our attention to the
affidavit-in-reply filed by the respondent No.5-Shri
Saibaba Sansthan and in particular paragraph No.5 and
would submit that even according to the said Sansthan,
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the process of further consideration of allotment of the
alternate land to the petitioners is still in progress.
He submits that at this stage thus the respondent No.1
cannot be directed to remove the petitioners from the
shops in question.
37] Mr.V.D. Hon, learned Senior Counsel for the
respondent No.1 i.e. Shirdi Nagar Panchayat, Shirdi, on
the other hand, invited our attention to the order passed
by the Supreme Court and would submit that by the said
order the Supreme Court had clarified the status-quo
order earlier granted, that the said order will not come
in the way of respondent No.1 for taking action in
accordance with law. He submits that accordingly
respondent No.1 had issued a notice on 11.04.2011 by
invoking the provisions of Sections 42, 45, 52 and 53 of
the M.R.T.P. Act and Sections 179, 180, 187 and 189 of
the Maharashtra Municipalities Act against the
petitioners for removal of the structures. He submits
that the petitioners thereafter filed a civil suit and
applied for interim injunction by filing an application
(Exhibit-5). Those proceedings were decided against the
petitioners right upto the High Court.
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38] The petitioners thereafter filed Special Leave
Petition before the Supreme Court. Learned Senior
Counsel invited our attention to paragraphs 15 to 22 of
the order passed by the Supreme Court and holding that
the notice dated 11.04.2011 issued by the respondent No.1
was valid. He submits that the order passed by the
learned Single Judge of this Court in the Writ Petition
has been upheld by the Supreme Court.
39] Learned Senior Counsel invited our attention to
the order dated 06.11.2012 passed by the learned Single
Judge of this Court in Writ Petition No. 8032 of 2012
filed by the petitioners and in particular paragraphs 17
to 23 and would submit that this Court has categorically
held that the structures of the petitioners cannot be
protected. The road is required to be kept free for
approach to the devotees. Steps are required to be taken
to prevent commotion. Taking into account these factors,
notice had been issued for removal of the structures
owned by the petitioners on the suit site. The same
would be in public interest. The Municipal Council being
the Planning Authority, would be empowered to direct
removal of such constructions which are situated in the
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area reserved for garden as per Development Plan, so
also, is within 37 Metres from the Central Line of the
National Highway i.e. within the control line.
40] Learned Senior Counsel placed reliance on
various paragraphs of the order passed by the Supreme
Court and submits that respondent No.4-Sansthan had been
showing the alternate plots or premises to the
petitioners since last several years, but the petitioners
had not agreed to any suitable and alternate plot shown
by the Sansthan. He submits that in any event, the
Supreme Court has categorically held that the Municipal
Council was well within its competence and authority as
the Planning Authority under the M.R.T.P. Act to issue
notice dated 11.04.2011. The Supreme Court was of the
opinion that the steps advised therein were essential for
the development of plan, already prepared and finalized,
for the progress and advancement of the area.
41] It is submitted by the learned Senior Counsel
that day by day the encroachment is increasing on the
Palkhi road as well as in the garden area. He invited
our attention to the photograph annexed to the affidavit-
in-reply filed by the respondent No.1 and would submit
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that for entering in the temple via Gate No.4 the
devotees have to pass through the shops illegally
constructed by the petitioners. He submits that recently
there was stampede on the Elphinstone Road Station,
Mumbai and also in the Tulja Bhawani Temple because of
the heavy and unmanageable crowd. He submits that lakhs
of devotees visit the Shirdi Temple throughout the year
and if the encroachments on the Palkhi road and in the
garden area are not removed, similar situation may arise
at Shirdi also. He submits that the plots are designated
in the Development Plan for public purposes which cannot
be allowed to be encroached upon or utilized for the
purposes other than for the purpose for which those are
reserved in the Development Plan.
42] Learned Senior Counsel for respondent No.1
invited our attention to the affidavit-in-reply filed by
the respondent No.4-Sansthan and more particularly to
paragraph No.5 thereof and would submit that the offer
now made by the Sansthan to the petitioners is clearly in
the teeth of the order passed by the Supreme Court and
more particularly after the Sansthan has already
deposited the amount in this Court after having found
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that there was no consensus between the petitioners and
Sansthan about the alternate land in lieu of the existing
structures on the Palkhi road as well as in the garden
area. He submits that neither the Sansthan nor the
petitioners applied for extension of time or for
modification of order passed by the Supreme Court for the
purpose of rehabilitation of the petitioners. He submits
that since there was no consensus between the petitioners
and the Sansthan, the Sansthan has already deposited
Rupees Sixteen Crores in this Court after obtaining
specific order from this Court. The petitioners are thus
fully protected and would get compensation as already
determined by the Supreme Court.
43] Learned Senior Counsel for the respondent No.1
invited our attention to a chart at page No.222 of the
Writ Petition which is forming part of the affidavit-in-
reply filed by the respondent No.1 and would submit that
each of the petitioners and/or their relatives have large
number of properties situated in Shirdi and are paying
huge amount of taxes to the Municipal Council and each of
the petitioner has been earning substantial amount from
their properties and business and thus no sympathy shall
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be shown by this Court to the petitioners.
44] Learned Senior Counsel for the respondent No.1
invited our attention to the report submitted by the
Government to the High Court pursuant to an order passed
by this Court showing that the structures constructed by
the petitioners are on the road. Learned Senior Counsel
placed reliance on the judgment of this Court in the case
of Gangadhar Narayan Wat v. State of Maharashtra and
others, (2005 BCI 353) and in particular paragraphs 7 and
8 and would submit that no encroachment on public roads
and footpaths can be regularized even if there is policy
of the State Government. He submits that the public
roads and footpaths must be kept free from all
encroachments. Learned Senior Counsel placed reliance on
the judgment of this Court in the case of Mohansing
Uttamsing Tanwani v. State of Maharashtra, [2010 (5) BCR
837] and would submit that this Court, while expressing a
hope that the Corporation and the concerned Authorities
would take some positive steps in helping the petitioners
by providing them alternate sites and/or constructions a
shopping complex for them, however, made it clear that
same cannot be read to be and meant to be a condition
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precedent for removal of the encroachments.
45] In so far as various submissions of Mr.Dixit,
learned Senior Counsel for the petitioners on the issue
of maintainability of the Contempt Petition or that no
directions could be issued by this Court before issuing
any notice in Form No.1 are concerned, it is submitted by
the learned Senior Counsel that this Court had already
issued a simple notice upon his client. His client,
therefore, had expressed inability to comply with the
order passed by this Court and the Supreme Court since
the Collector had not provided police protection. This
Court recorded the said statement and directed the
Collector to provide police protection to the respondent
No.1 to enable the respondent No.1 to comply with its
public duty. He submits that the respondent No.1 is not
concerned as to whether the respondent No.4-Sansthan
provides any alternative accommodation to the petitioners
or to pay compensation in lieu thereof in terms of the
order passed by the Supreme Court. He submits that on
one or other frivolous ground the petitioners are not
allowing the respondent No.1 to remove illegal
encroachment from public road and public garden though
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the Supreme Court had specifically made it clear that the
status-quo order granted by the Supreme Court would not
come in the way of the respondent No.1 to remove the
encroachment in accordance with law.
46] Ms.Talekar, learned Counsel for respondent No.5
(original petitioner in Contempt Petition), invited our
attention to the order dated 05.04.2005 passed by
Division Bench of this Court in the earlier Writ Petition
filed by her client and would submit that in view of the
false affidavit filed by State Government that steps were
taken to remove the encroachment and to the effect that
there were very few encroachers, this Court disposed of
the said Writ Petition. She submits that the said
statement made by the State Government in the said
affidavit-in-reply was contrary to the actual position
before the Supreme Court in so far as the issue of
encroachment on Palkhi road and the garden area is
concerned. She submits that before the Supreme Court the
number of encroachers mentioned were '111' as against
'13' encroachers mentioned before this Court. She
submits that the respondents had thus committed contempt
of the order passed by this Court and thus the said
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contempt petition was maintainable. She submits that the
petitioners were neither necessary nor proper parties to
the said contempt petition and were thus rightly not
impleaded. She submits that the petitioners thus have no
locus to oppose the said Contempt Petition in any manner,
whatsoever.
47] It is submitted by the learned Counsel that in
so far as the issue of limitation raised by the learned
Senior Counsel for the petitioners in filing Contempt
Petition by her client is concerned, the issue of removal
of encroachment from Palkhi road and from the garden area
was pending before this Court and thereafter before the
Supreme Court for last more than 10 years. The last order
was passed by the Supreme Court only on 22.02.2016.
Inspite of the said order dated 22.02.2016 which was
arising out of various orders passed by this Court, the
respondent No.1 and the Sansthan did not remove the
petitioners from the Palkhi road and garden area which is
a continuous breach of the order passed by this Court
committed by the respondents to the Contempt Petition
against whom the contempt was alleged by her client. She
submits that the judgment of the Supreme Court, thus,
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passed in the case of Pallav Sheth (supra) would assist
the case of the respondent No.5 and not the petitioners.
She clarified that the reliefs in the Contempt Petition
were sought against respondent Nos.2 to 7 and not
respondent No.8 who was not named individually.
48] Learned Counsel for respondent No.5 placed
reliance on the judgment of the Supreme Court in the case
of Anil Kumar Shahi (2) and others v. Ram Sevak Yadav and
others, [(2008) 14 Supreme Court Cases 115] and in
particular paragraph 50 in support of the submission that
the Court can pass a consequential order for enforcement
of execution of the order, as the case may be, for
violation of which the proceeding for contempt was
initiated under Article 129 of the Constituted of India.
She submits that this Court has simplicitor permitted the
respondent No.1 to apply to the Collector for police
protection and has directed the Collector to provide such
police protection so as to enforce the order passed by
the Supreme Court and this Court. The said Contempt
Petition filed by her client is still pending.
49] It is submitted by the learned Counsel that no
material facts are suppressed from this Court in the said
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Contempt Petition as sought to be canvassed by the
learned Senior Counsel for the petitioners. She submits
that all the relevant facts are already disclosed. It is
submitted that even if the petitioners were entitled to
allotment of alternate land or other shops in lieu of the
existing shops, the same would not permit the petitioners
to continue their occupation in the shops and other
structures on the site in question. She submits that
seeking an alternate land is a different aspect, whereas
continue to trespass on the public property is another
aspect. She submits that neither Sansthan nor any other
parties to these proceedings applied for extension of
time to comply with the order passed by the Supreme
Court. She submits that on one hand the Sansthan has
already filed affidavit before this Court and also
addressed a letter to the Collector that the alternate
land as demanded by the petitioners cannot be given to
them, Sansthan has though deposited the amount as
directed by Supreme Court, has once again started the
discussion about allotment of other land to the
petitioners in the teeth of the order of the Supreme
Court. She submits that the Sansthan has also thus
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committed contempt of the order passed by this Court and
the Supreme Court.
50] Mr.S.R.Chowkidar, learned Counsel for respondent
No.4 in the Writ Petition submits that no averments are
made by the petitioners in the Contempt Petition against
his client alleging that any contempt of the order passed
by this Court or the Supreme Court has been committed by
his client. He submits that there is no dispute that the
petitioners have to be removed from the Palkhi road and
also the garden area and the land which was subject
matter of the proceedings before the Supreme Court.
Respondent No.4 is not opposing removal of the
petitioners from the lands in question. He, however,
submits that the proposal given by respondent No.4 now,
after depositing the amount in compliance with the order
passed by the Supreme Court for rehabilitation of the
petitioners, is purely based on the basis of humanitarian
ground. He submits that after deposit of Rupees Sixteen
Crores in this Court by his client, State Government has
already paid its contribution to the Sansthan and has
thus complied with the directions issued by the Supreme
Court.
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51] Mr.Dixit, learned Senior Counsel for the
petitioners, in re-joinder, submits that the order passed
by this Court is merged with the orders passed by the
Supreme Court and thus no contempt proceeding could be
filed by the respondent No.5 alleging contempt of the
order passed by this Court. He submits that in the order
passed by the High Court holding that the said Writ
Petition filed by respondent No.5 did not survive, had
not recorded any undertaking as sought to be canvassed by
the learned Counsel for respondent No.5.
52] Learned Government Pleader, who appeared on
12/10/2017, submits that, in the meeting of the Sansthan
held on 5/4/2016, it was resolved to allot plot to the
petitioners. Learned Government Pleader took time till
2.30 p.m. to produce the resolution, if any, passed by
the State Government in that regard, but could not
produce any such resolution.
REASONS AND CONCLUSIONS
53] We shall first decide whether the Writ Petition
filed by the petitioners inter-alia praying for a writ of
certiorari or any other writ, order or direction in the
nature of writ of certiorari for quashing and setting
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aside the order dated 26/9/2017 passed by the Division
Bench of this Court in Contempt Petition No.258/2017 is
maintainable or not. We will also decide whether the
petitioners have made out a case for issuance of a writ
of mandamus for taking an appropriate action including
penal action against the respondent No.5 for committing
alleged fraud on this Court or not and whether such
relief can be granted in this Writ Petition. The
petitioners have also inserted by way of amendment,
prayer clause AA, thereby seeking correction and/or for
modification or quashing and setting aside the order
dated 26/9/2017, passed in Contempt Petition No.258/2017.
54] Insofar as prayer clause (A) is concerned, it is
not in dispute that, the petitioners have applied for a
writ of certiorari for quashing and setting aside the
order passed by the Division Bench of this Court in Writ
Petition No.258/2017, which is a coordinate Bench of this
Court. The Principal Bench of this Court, in case of
Satish Mahadeorao Uke (supra) has considered the prayers
for a writ of prohibition from proceeding any further in
furtherance of the orders passed by Nagpur Bench of this
Court and also seeking a declaration that the entire
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criminal contempt proceedings pending before the Nagpur
Bench of this Court was unconstitutional and void ab
initio. While dealing with these prayers in Writ
Petition No.3533/2017 filed by the petitioner, who was
one of the respondent in the said proceedings filed
before the Nagpur Bench in the Criminal Contempt
Petition, this Court held that, if another coordinate
Bench is engaged in deciding the correctness and
propriety, legality and validity of a final judgment of a
coordinate Bench, it would set a very bad precedent.
Nobody would resort to appellate remedy available in law
and approach the Supreme Court as was the position in
that matter before the principal Bench of this Court.
55] This Court held that the petitioner in that case
would have an opportunity to challenge the final judgment
in the Supreme Court in terms of Section 19(1) of the
Contempt of Courts Act, 1971. The principal Bench of the
Bombay High Court, thus, held that, it could not
entertain Writ Petition like that merely because it
contained prayer that the Contempt of Courts Act, 1971
itself was unconstitutional.
56] It is held that, if there is an authority to
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decide and whether a judicial or quasi-judicial Tribunal
is empowered or required to inquire into a question of
law or fact for the purpose of giving a decision on it,
its finding thereon cannot be impeached collaterally or
an application for certiorari but are binding until
reversed in appeal. Where a quasi-judicial authority has
jurisdiction to decide the matter, it does not lose its
jurisdiction by coming to a wrong conclusion, whether it
is wrong in law or in fact. This Court accordingly held
that the Writ Petition was not maintainable, thereby
challenging the validity of the contempt proceedings and
the order passed by the coordinate Bench of this Court at
Nagpur.
57] In our view, the judgment delivered by this
Court in case of Satish Mahadeo Uke (supra) squarely
applies to the facts of this case. The order passed by
this Court on 26.9.2017 in Contempt Petition No.258/2017
in Writ Petition No.78/2004 is passed by a coordinate
Bench of this High Court, which could be challenged also
by the petitioners in the Supreme Court, if aggrieved, by
the said order after obtaining leave of the Supreme
Court. The petitioners can not file a Writ Petition for
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challenging the order passed by coordinate Bench of this
Court by seeking a writ of certiorari for quashing and
setting aside the said order. In our view, prayer clause
(A) of the Writ Petition is thus not maintainable and is
thus, rejected.
58] Insofar as prayer clause (B) is concerned, the
prayer for seeking an appropriate action against the
respondent No.5 for allegedly committing fraud on this
Court also cannot be decided in the Writ Petition filed
under Articles 226 and 227 of the Constitution of India.
Be that as it may, the petitioners have not made out any
case for any appropriate action including penal action
against the respondent No.5 for committing any alleged
fraud on this Court. Learned Senior Counsel for the
petitioners could not point out before this Court at all
in what manner and with what material on hand it can be
said that the respondent No.5 has committed fraud upon
this Court. The pleadings filed by the petitioners in
this Writ Petition alleging fraud are totally vague and
without particulars. Prayer clause (B) is accordingly
rejected.
59] Insofar as prayer clause (AA), which is inserted
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by way of amendment is concerned, the petitioners are
once again seeking a writ of certiorari for quashing and
setting aside the said order passed on 26/9/2017, passed
by the coordinate Bench of this Court in Contempt
Petition No.258/2017. While seeking that prayer once
again under prayer (AA), the petitioners have also prayed
for correction and/or for modification of the said order
dated 26/9/2017. It is the case of the petitioners that,
even if the Writ Petition is not maintainable, if this
Court comes to the conclusion that prayer clause (AA)
cannot be granted by this Court in toto, the petitioners
being affected by the order passed by this Court on
26/9/2017, and by virtue of the said order, the
structures of the petitioners are likely to be
demolished, the petitioners are entitled to seek
modification or correction of the said order dated
26/9/2017.
60] Though this Court has held that, prayer clauses
(A) and (B) and part of prayer clause (AA) cannot be
granted by this Court as the same are not maintainable,
we are inclined to consider part of prayer clause (AA)
for seeking correction and/or for modification of the
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said order. By virtue of an administrative order passed
by the Seniormost permanent Judge at this station at
Aurangabad, the Writ Petition is clubbed along with
Contempt Petition No.258/2017 and has been assigned to
this Bench, who had passed the said order dated 26/9/2017
in Contempt Petition No.258/2017.
61] For considering the part of prayer clause (AA),
whether the said order dated 26/9/2017 requires any
correction and/or modification is concerned, this Court
will now consider the rival submissions made by the
parties and various documents and orders forming part of
the record.
62] It is not in dispute that the petitioners were
not parties to the Writ Petition No.78/2004 filed by the
respondent No.5, inter-alia praying for removal of the
encroachments from Palkhi Road. It is, however, at the
same time, there is no dispute that, the petitioners
herein were parties to various proceedings referred to
aforesaid, including the proceedings before the Supreme
Court of India, which culminated into an order dated
22/2/2016.
63] A perusal of the order passed by the Supreme
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Court on 22/2/2016 indicates that the said Civil Appeals
were arising out of the two proceedings. There was
compromise decree dated 20/8/1979, passed by the Civil
Court between the petitioners and Shri Saibaba Sansthan,
Shirdi and another. It is not in dispute that the
petitioners and the respondent No.4 filed separate
application for execution of the said compromise decree.
The orders passed by the executing Court were challenged
by the State of Maharashtra and the Tahsildar in Writ
Petition No.5839/2004. By an order dated 31/7/2007, this
Court remanded the matter back to the Executing Court for
considering the issues raised by the contesting parties,
keeping all the issues open. Pursuant to the said order
passed by this Court, the execution proceedings were
disposed of by the executing Court. The orders passed by
the Executing Court were again challenged before this
High Court in Writ Petition No.5451/2009 and other
companion Writ Petitions filed by the petitioners
64] By an order and judgment dated 2/7/2010 and
5/7/2010, this Court has observed that, considering the
size of shops, unavailability of alternate accommodation
and frustration of the decree due to inexecutability
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thereof, all those shopkeepers must be suitably
compensated. The learned Single Judge in the said Writ
Petition held that it would be appropriate to fix quantum
of compensation @ Rs.3 lakhs payable to the shopkeepers
who were having bigger shops like hotels, sweet-meat shop
etc. and Rs.2 Lakhs to those who were having small shops
like that of flower vendors, vendors of essence sticks
etc. The learned Single Judge directed that the 50% of
the said amount to be paid by Shri Saibaba Sansthan,
Shirdi, and remaining 50% amount shall be paid by the
Government. The said order and judgment of this Court
was later subject matter of Civil Appeal before the
Supreme Court.
65] A perusal of the order dated 8/12/2003 passed by
the Division Bench of this Court in which the validity of
the acquisition of the land of the petitioners for the
purpose of widening Palkhi Road situated within the
limits of Shirdi Nagar Panchayat was challenged indicates
that, this Court dismissed the said Writ Petition filed
by the petitioners therein and held that, there was no
illegality in the acquisition proceedings. The
allegations of mala-fide were without any foundation.
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The road was being widened as per the sanctioned
development plan.
66] This Court also observed that Shri Saibaba
Sansthan, Shirdi was to carry out several development
activities at Shirdi and especially the area surrounding
the temple, and as per the aims and objects in the
constitution of the Trust, one of the objects was to
provide facilities to the devotees of Shri Saibaba
Temple. The road in question was abutting the southern
side of the temple and the devotees regularly pass
through the said road. The Sansthan has decided to give
financial assistance to the Nagar Panchayat for the
purpose of widening of the road on certain terms and
conditions. The Charity Commissioner has granted
necessary sanction of Rs.1,23,42,265/- to the Nagar
Panchayat. The respondent No.4 Sansthan had already
contributed the said amount of Rs.1,23,42,265/- towards
compensation for widening of the road. The Nagar
Panchayat and the respondent No.4 Sansthan were taking
steps jointly for the overall development of the area
surrounding the Saibaba Temple.
67] A perusal of the order passed by this Court on
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6.11.2012 in Writ Petition No.8032/2012 filed by the
petitioners herein challenging the notice issued by the
respondent No.1 i.e. Shirdi Nagar Panchayat under
Sections 40, 42, 52 and 54 of the Maharashtra Regional
and Town Planning Act and under Sections 179, 180, 187
and 189 of the Maharashtra Municipal Councils Act
indicates that, it was a common ground that as far as
Palkhi Road is concerned, the said land was already
acquired for the purpose of Palkhi Road and this Court
has already held that the development plan prepared was
required to be implemented. No construction can be
allowed to be remained on the site reserved for garden.
The petitioners' site appears to be on Site No.13-A,
which was reserved for garden and as such, no permission
could be granted to carry out any business nor any
permission could be granted also for the reason that
they come within the control line of 37 meters.
68] It is held that, the Municipal Council is a
planning authority and is invested with the duties and
obligation to implement the development plan and for
issuing notice, the Municipal Council has sought to
implement the development plan. This Court also
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considered that the Supreme Court has already granted
liberty to the Municipal Council to proceed as per law
and thereafter the said notice came to be issued. This
Court also observed that, in the earlier round, it has
been concluded up to the Division Bench of this Court
that the construction/ tenements/ shops of the
petitioners are situated within the control line and in
area reserved for garden. This Court rendered a finding
that, since the shops of the petitioners are within the
control line and are in the area reserved for garden,
such shops / kiosks of the petitioners could not be
permitted at the hands of this Court. The Municipal
Council cannot permit the construction against the bye-
laws and rules. The construction is situated in the area
within the Municipal limits. No construction can be
allowed to remain over an area reserved for garden and/or
coming within the control line.
69] This Court held that, as lacs of devotees are
visiting Shirdi town, the Ahmednagar - Manmad Highway
No.10 has been widened. The road is required to be kept
free for approach to the devotees. Steps are required to
be taken to prevent commotion. Taking into account these
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factors, the notice has been issued for removal of the
structures owned by the petitioners on the suit site,
which notice would be in the public interest. This Court
held that, in light of the conspectus of the matters, the
structures of the petitioners' structures cannot be
protected.
70] Insofar as the action on the part of the
Municipal Council to issue notice for demolition of the
structures and for eviction of the occupants on the plots
reserved for public purpose is concerned, the Supreme
Court considered this issue at length in the order passed
by the Supreme Court on 22.2.2016. Supreme Court also
considered its earlier order dated 13/12/2010 and
28/2/2011 and permitting the Nagar Panchayat to pursue
its initiative for removal of encroachments and widening
of road in accordance with law. The Supreme Court
considered the issue whether the action on the part of
the Nagar Panchayat to issue the notice for eviction for
removal of encroachments and for widening of road was in
accordance with law or not and in what circumstances such
notice issued by the Nagar Panchayat / Municipal Council,
which was a planning authority, entrusted with the
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statutory duty to implement the development plan was
justified. The Supreme Court, after considering the
facts and various provisions of the M.R.T.P. Act and
Maharashtra Municipalities Act, rendered a finding that,
in view of the statutory enjoyment and the legislative
intent, in the face of unequivocal empowerment of the
Council as the planning authority under the M.R.T.P. Act,
1966, the said notice dated 11.4.2011 is not rendered
illegal, unauthorized or incompetent. It is held that,
the Municipal Council was well within its competence on
authority as a planning authority under the said Act to
issue being of the opinion that the steps devised therein
were essential for the implementation of the development
plan, already prepared and finalized for the progress and
advancement of the area. It is thus clear that, the
notice issued by the Municipal Council for eviction is
upheld by this Court and by the Supreme Court in the said
judgment.
71] The question now that arises for consideration
of this Court is whether various orders passed by this
Court and by the Supreme Court is implemented by the
parties or not.
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72] A perusal of the order passed by the Supreme
Court clearly indicates that the Supreme Court has held
that, it shall be discernible from the affidavit filed by
the State Government on 21/3/2014 that no vacant parcel
of the land is said to be available for the purpose in
the immediate vicinity land in occupation of the
petitioners.
73] In para 62 of the judgment, the Supreme Court
directed the State and its functionaries to undertake an
exercise to identify a suitable site to accommodate the
petitioners. It was, however, made clear that, even if
such a site is not available in the immediate proximity
of the land presently in their occupation, a sincere
endeavour shall be made to locate a plot as near as
possible thereto. It was also made clear that, in case
the endeavour to identify an alternative plot does not
yield any result in spite of sincere efforts, the
appellants would then be entitled to adequate monetary
compensation as quantified in the said order.
74] The Supreme Court held that, having regard to
the permissible ponderables and also the passage of time
in between, a lump-sum of Rs.20 Lakhs and 15 Lakhs each
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respectively for the bigger and smaller shops/stalls
would be a reasonable palliative to the petitioners. The
Supreme Court directed that, the entire process on both
counts, however, should be completed within a period of
six weeks from the date of the said order. The Supreme
Court directed the State Government and the respondent
No.4 Sansthan to bear the amount of compensation in equal
shares and directed to deposit the said amount in this
Court within six weeks from the date of the said order.
The Supreme Court made it clear that the amount already
deposited by the Sansthan in terms of the High Court
order, if not withdrawn, shall be adjusted in this
amount. The Supreme Court directed the Registrar General
of this Court to make suitable arrangement for
disbursement thereof to the petitioners as due to it as
expeditiously as possible, however, on proper
identification.
75] A perusal of the record indicates that, after
passing of the said order by the Supreme Court, the
Sansthan and the Sub-Divisional Officer issued notices to
all the petitioners by showing various plots of land in
compliance with the order passed by the Supreme Court.
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Various meetings were held by the Sansthan and the Sub-
Divisional Officer including on 2/3/2016, 5/3/2016,
9/3/2016 and 13/3/2016. There was, however, no consensus
admittedly in respect of the alternate land for
rehabilitation of the petitioners proposed to them by the
State Government as well as the Sansthan. A meeting was
also convened under the Chairmanship of the Chief
Minister on 5.4.2016, wherein certain directions were
issued by the Chief Minister, but no consensus was
arrived at. Learned Government Pleader could not produce
any other resolution passed by the State of Maharashtra.
76] Since there was no consensus on the alternate
site for rehabilitation of the petitioner, the respondent
No.4 Sansthan obtained order from this Court for deposit
of the amount directed to be deposited by the Supreme
Court and deposited the said amount on 5/4/2016. It is
not in dispute that State Government has also reimbursed
the Sansthan by making payment of their contribution of
Rs.8 Crores and has complied with the direction issued by
this Court and the Supreme Court.
77] A perusal of the record further indicates that,
the Sansthan had also addressed a letter to the Collector
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on 31/3/2017 that though several alternate plots were
shown to the petitioners for their rehabilitation, the
same was not agreed by the petitioners. The plots
demanded by the petitioners were not available and thus,
could not be offered to them.
78] A perusal of the affidavit-in-reply filed by the
respondent No.4 Sansthan on 5/10/2017 clearly indicates
that, various meetings were held between the petitioners
and the Sub-Divisional Officer and the then Executive
Officer of the Saibaba Sansthan Trust, Shirdi. There
was, however, no consensus amongst the petitioners for
the site for rehabilitation proposed for them by the
State Government as well as the Sansthan. The Sansthan,
therefore, has deposited a sum of Rs.16 Crores, towards
their share and on behalf of the State of Maharashtra on
5.4.2017. In para No.5 of the said affidavit, however,
it is stated by the respondent No.4 Sansthan that, the
process for further consideration is in progress and if
the petitioners if at all are interested in
rehabilitation of themselves, shall submit proposal in
writing to the said Sansthan and if any such proposal is
submitted to the Sansthan and the same is in accordance
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with the provisions contained in Shri Saibaba Sansthan
Trust (Shirdi) Act, 2004, an appropriate decision in that
regard would be taken.
79] During the course of the arguments before this
court, Mr. Chowkidar, learned counsel for the Sansthan
submitted that, the Sansthan is also bound to comply with
the order passed by the Supreme Court. He stated that,
since there was no consensus for allotment of the
alternate site between the petitioners, the Sansthan and
the Sub-Divisional Officer within a period of six weeks,
the Sansthan exercised the second direction issued by the
Supreme court after expiry of six weeks and has already
deposited a sum of Rs.16 Crores on behalf of itself and
on behalf of the State Government.
80] Upon raising a query by this court as to whether
the action on the part of the Sansthan to keeping the
process of further consideration of alternate land open
after depositing the amount in compliance with the order
passed by the Supreme court, is in teeth of the order
passed by the Supreme court, the learned counsel submits
that, the respondent No.4 Sansthan does not seek to
violate the order passed by the Supreme Court and has
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absolute regard for the order passed by the Supreme
Court. He, however, submits that, the said suggestion
given in the affidavit-in-reply and more particularly in
para No.5 was considering the humanitarian ground. He
did not dispute that the land acquisition proceedings
were already completed and the Sansthan had already
deposited substantial amount for acquisition of the said
plot. He also did not dispute that the land in question
is reserved for public purpose and is required to be used
for public purposes and also for keeping the road free
from encroachment to avoid any mishap or stampede of the
devotees of the temple.
81] From perusal of the record, it is clear beyond
reasonable doubt that the petitioners were offered
various alternate plots for their rehabilitation by the
Sansthan as well as by the Sub-Divisional Officer, but
admittedly there was no consensus between the parties.
The respondent No.4 Sansthan thus has already deposited
the compensation of Rs.16 Cores in this court in view of
the first direction issued by the Supreme Court could not
have been complied with by the parties in view of there
being no consensus between the parties.
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82] A perusal of the record further indicates that,
all the petitioners and/or the relatives have large
number of properties situated within the near vicinity of
the temple and have been paying huge amount of taxes to
the Council. In our view, the acquisition of the plot
having been completed, the challenge to the acquisition
proceedings having been failed, the order passed by the
Supreme Court having attained finality, the petitioners
cannot seek any stay of the implementation of the order
passed by the Supreme Court in any manner whatsoever. In
our view, action of the petitioners to seek such reliefs
in this petition itself is contemptuous.
83] We are inclined to accept the submission of the
learned Senior Counsel for the respondent No.1 that the
petitioners' right is already protected by payment of
certain compensation already provided by the Supreme
Court in the order and thus the petitioners cannot be
allowed to continue to occupy the plots in question and
put the life of large number of devotees and members of
public in danger. A perusal of photograph produced by
the Council clearly indicates that the devotees have to
pass through the shops of the petitioners while entering
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the temple through Gate No.4. This Court cannot overlook
several instances of such stampede on Elphinstone Road
Station, Tulja Bhawani Temple and several other temples
in India.
84] It is the duty and obligation on the part of the
Municipal Council to keep the road and public places
clear from any encroachment and to ensure that such
public places and the plots reserved for public purposes
are used for such purposes shown in the development plan.
The action of the Municipal Council to issue notice of
eviction and for removal of the petitioners from the land
in question is already upheld by the Supreme Court and
this Court. This Court cannot directly or indirectly
grant any stay or modify the order passed by the Supreme
Court. In our view, the public interest and the interest
of the large number of devotees would prevail over the
private interest of the petitioners / shopkeepers whose
rights in the properties has been already rejected except
for payment of compensation. Admittedly, the respondent
No.4 Sansthan has already deposited a sum of Rs.16 Crores
on behalf of itself and on behalf of the State Government
in this Court. The petitioners are thus fully
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compensated. The order passed by the Supreme Court is
binding. If the petitioners desire to withdraw the
amount of compensation as directed by the Supreme Court,
they would be entitled to such compensation after
satisfying the terms and conditions mentioned in the said
order.
85] Insofar as submission raised by the learned
Senior Counsel for the petitioners that the Contempt
Petition is barred by law of limitation is concerned, it
is not in dispute that the issue of eviction of the
petitioners was pending in large number of proceedings
filed by the petitioners and the authorities which
culminated into an order passed by the Supreme Court,
which came to be decided on 22/2/2016. In these
circumstances, we are not inclined to accept the
submission of the learned Senior Counsel for the
petitioners that the Contempt Petition filed by the
respondent No.5 was barred by law of limitation. Insofar
as submission by the learned Senior Counsel for the
petitioners that since there was no direction issued by
this Court in the order dated 5/7/2005 in the Writ
Petition filed by the respondent No.5 is concerned, it is
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clear that the said order was passed by this Court by
accepting the statement made by the State Government.
The statement made by the State Government before this
Court was not depicting the true and correct picture of
the encroachment on the land in question. Be that as it
may, the Supreme Court order was arising out of the
orders passed by this Court upholding the notice issued
by the Municipal Council for eviction. This Court has
thus ample power to initiate an action under the
provisions of Contempt of Courts Act, 1971.
86] The respondent No.5 has not alleged the
violation of the order passed by the Supreme Court in the
Contempt Petition. Be that as it may, this Court cannot
consider this objection at the behest of the petitioners
who have bent upon to violate all the orders passed by
the Courts so far on one or the other grounds. The
petitioners had delayed the implementation of the
acquisition proceedings and also eviction notices issued
by the Municipal Council by filing one or the other
frivolous proceedings in this Court and have delayed the
process of eviction for last several years.
87] Insofar as submission of the learned Senior
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Counsel for the petitioners that this Court could not
have issued any direction to the authorities to demolish
the structures in question till a notice under Form I
would have been issued by this Court is concerned, a
perusal of the order passed by this Court on 30/3/2017
indicates that a simple notice was issued against
respondent No.2 Council. The respondent No.2 had made a
request before this Court for police protection to comply
with the order passed by this Court and the Supreme
Court. In that context, this Court directed the
Collector to provide police protection, if requested by
the Municipal Council so as to comply with their
statutory duties and obligations and to comply with the
orders passed by this Court and the Supreme Court.
88] We do not find any fraud alleged to have been
committed by the respondent No.5 on this count or by
other authority while passing the said order dated
26/9/2017 in Contempt Petition No.258/2017 which is
sought to be modified and/or corrected by the
petitioners. In our view, the petitioners have not come
to this Court with clean hands and are bent upon to
violate each and every order passed by this Court and the
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Supreme Court and thus, no relief in favour of the
petitioners can be granted for this reason also. In our
view, the petition is devoid of merit. We, therefore,
pass the following order :
O R D E R
Writ Petition No.11949/2017 is dismissed. There
shall be no order as to costs.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
At this stage, Shri V.J. Dixit, learned Senior
Counsel for the petitioners, seeks continuation of the
ad-interim arrangement made in the contempt petition for
a period of six weeks to enable the petitioners to
approach the Hon'ble Supreme Court. During the pendency
of this petition, Shri V.D. Hon, learned Senior Counsel
for the respondent no.1 - Council had made a statement
before this Court that no application would be made to
the Collector for seeking Police protection to implement
the order passed by this Court and the Supreme Court.
The request of the learned Senior Counsel for
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the petitioners is vehemently opposed by Shri V.D. Hon,
learned Senior Counsel for the Council on the ground that
the Municipal Council had been permitted by the Supreme
Court to exercise its duty, rights and obligations to
remove the encroachments and thus any stay, if granted by
this Court, would be in breach of the order passed by the
Supreme Court.
The application made for continuation of the ad
interim arrangement by the learned Senior Counsel for the
petitioners is accordingly rejected.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
ndk/wp11949171.doc
