Alka Rajiv Gulhane And Another vs The State Of Maharashtra And ...
2022 Latest Caselaw 3723 Bom

                                        {1}                Review Appln.19 of 2019


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

      901 REVIEW APPLICATION (CIVIL) NO.19 OF 2019
                   IN WP/7881/2016

              ALKA RAJIV GULHANE AND ANOTHER
                             VERSUS
           THE STATE OF MAHARASHTRA AND OTHERS
                                 ...
       Advocate for Applicants : Shri Girish K. Thigale (Naik)
           AGP for Respondents-State : Shri N.T.Bhagt
                                 ...
                               CORAM : MANGESH S.PATIL
                                       AND
                                       M.G.SEWLIKAR, JJ.

                               DATE :         6 April 2022

 PER COURT:-

Original petitioner is invoking jurisdiction of this Court

under Article 215 of the Constitution of India read with Section

114 of the Code of Civil Procedure seeking a review of the order

dated 1st August, 2017 passed in Writ Petition No.7881 of 2016.

2. By way of the Writ Petition under Article 226 of the

Constitution of India, the petitioner had prayed for a Writ of

Mandamus directing the respondent Municipal Corporation to

complete the acquisition proceeding in respect of her property

bearing Survey No 56, CTS No.3724, ad-measuring 4000 square

meter situated at Vajirabad, Nanded, allegedly encroached upon

for constructing a sewerage treatment plant.

                                           {2}               Review Appln.19 of 2019


 3.         By   referring     to   the   afdavit-in-reply      fled      by      the

Corporation, this Court objectively considered the issue in

paragraph Nos.6 and 7 in following words :-

"6. An affavit-s in-s replys has been flef bys the Nanfef Waghala Citys Municipal Corporation. In the saif affavit, Mr.Kiran Tukaram Shastri, Incharge Executive Engineer maintainef that no encroachment is mafe bys the Municipal Corporation over the lanf of the petitioner. The petitioner is taking afvantage of the entrys in Citys surveys no.3724 (entrys no.3724). After the petitioner has purchasef the lanf from Jeevanrao Narays an Halfe Patil, then, ,as far as that lanf is concernef, in revenue recorf, surveys no. is 3725. The petitioner, in collusion with the Citys Surveys Authorities got her name enteref in Surveys no.3724. If the olf focuments are perusef, it woulf reveal that lanf of the petitioner was in surveys no.56/B but on the basis of the wrong entrys no.3724, incorrect 7/12 extract was preparef anf lanf of the petitioner is shown in Gut No.56/1. The petitioner has suppressef this from this Court. There are several focuments anf collectivelys complief anf annexef as "Exhibit R-s 7B" which are relief upon. The Corporation maintains that the lanf on which the treatment plant erectef is altogether fiferent anf it has nothing to fo with the lanf of the petitioner. The petitioner pertinentlys foes not aver as to when this 14R lanf is taken bys the Municipal Corporation.

7. Despite such emphatic statements in the affavit in replys , after some arguments on the last occasion, it was

{3} Review Appln.19 of 2019

statef bys the Afvocate for the responfent no.7 - Corporation that the petitioner's lanf has not been acquiref. The construction also has not been carrief on his lanf. This statement was mafe orallys .

4. Even a rejoinder fled by the petitioner was referred to to

conclude that the property was not acquired by initiating any

proceeding under the Land Acquisition Act. Having considered

such a stand of the rival parties, the Writ Petition was disposed of

by observing that if at all it was ultimately found and she had a

grievance against the Municipal Corporation about encroachment

over her property, it would always be open for her to approach

Civil Court or to take recourse to such remedies as are available

under law.

5. Shri G.K.Thigale (Naik), learned advocate for the petitioner

vehemently submits that the powers of this Court of undertaking

a review under Article 215 of the Constitution of India are not

circumscribed by limitations of Section 115 of the Code of Civil

Procedure. He would further point out that subsequent to the

decision, once again the property was measured by the Deputy

Superintendent of Land Records and even the Municipal

Corporation has published a notice inviting objections by

admitting that as a result of that measurement it was being

pointed out that 29 Are portion from her property was used for

{4} Review Appln.19 of 2019

erection of sewerage treatment plant. He would, therefore,

submit that in view of such supervening events, the scenario has

undergone a change. Her grievance that was being put up in the

Writ Petition has been turned out to be true and in view of Article

300A of the Constitution of India as laid down in catena of

decisions she cannot be deprived of the compensation. He cites

following cases :

1. Boarf of Control for Cricket in Infia anf Another Vs. Netaji Cricket Club anf Others [(2005) 4 Supreme Court Cases 741].

2. Prafys umna Mukunf Kokil Vs. State of Maharashtra anf Others [(2015) 6 Supreme Court Cases 406].

3. Pawan Kumar Aggarwal Vs. State of Punjab anf Others [(2016) 7 Supreme Court Cases 614].

4. D.B.Basnett (Deaf), Through Legal Representatives Vs. Collector, East District, Gangtok, Sikkim anf Another [(2020) 4 Supreme Court Cases 572].

5. Municipal Corporation of Greater Mumbai anf Another Vs. Pratibha Infustries Limitef anf Others [(2019) 3 Supreme Court Cases 203].

He would submit that the observations and more particularly

observation in paragraph No.11 of the order where the word

"shall" has been used prefiing the word "Civil Court", the

petitioner is now being deprived of availing the appropriate

remedy.

{5} Review Appln.19 of 2019

6. Para 11 of the order sought to be reviewed is as under :

"11. If the petitioner is feprivef of her right, title anf interest in the propertys wrongfullys anf contrarys to law, then, the petitioner must approach a competent civil Court anf assert her right, title anf interest in the propertys . The petitioner must then prays for a feclaration in that regarf. The petitioner must obtain a fecree of possession if at all the Corporation has wrongfullys taken over the lanf without compensating. Alternativelys , the petitioner can claim compensation for such wrongful feprivation of the right, title anf interest in the propertys . Once it is the petitioner's claim that the lanf has not been acquiref unfer anys Lanf Acquisition Law but the petitioner's propertys has been encroachef upon bys the Municipal Corporation, then, we fo not think that the foors of the Civil Court are completelys shut to the petitioner."

7. Having considered submissions of the learned Advocate for

the petitioner and after perusing the Judgments submitted at bar

(supra), it transpires that admittedly, there was no acquisition

proceeding initiated and still according to the petitioner, her

property was utilized for erecting a sewerage treatment plant.

This Court had simply disposed of the writ petition by observing

inter alia that she could take recourse to all the remedies as are

available to her in law in so many words in paragraph No.12,

which reads thus :-

{6} Review Appln.19 of 2019

"12. Once there is a serious foubt not onlys about the bona ffes of the petitioner's claim but her reliance on some assertion of responfent no.7, we woulf be better afvisef to fispose of this Writ Petition, leaving open to the petitioner, to take recourse to such remefies as are provifef bys law. The Writ Petition is fisposef of with the aforesaif observations".

8. Merely because the word "shall" was prefied before the

words "Civil Court" in paragraph No.11 of the order, this Court

cannot be attributed with any intention to direct her to approach

the Civil Court alone ignoring whatever remedies that are

available to her in law.

9. In our considered view, there are no sufcient reasons and

grounds to undertake the eiercise of review.

10. Review Application is disposed of.

                  (M.G.SEWLIKAR)                      (MANGESH S.PATIL)
                      JUDGE                                JUDGE

 SPT