The City And Industrial ... vs Anwar Khan Rahim Khan Through ...
2022 Latest Caselaw 1075 Bom

                                  1                        SA / 248 / 2019



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                        SECOND APPEAL NO. 248 OF 2019

The City and Industrial
Development Corporation,
Through its Administrator,
New Aurangabad                                              .. Appellant
                                                           (Ori. Defendant No. 2)
       VERSUS

1] Anwar Khan S/o Rahim Khan
   Age : 61 years, Occu : Business,
   Through General Power of Attorney
   Holder Shabbir Khan S/o. Rahim Khan

2] Shabbir Khan S/o Rahim Khan,
   Age : 56 years, Occu : Business,
   Both R/o. Rahim Nagar, Kiradpura,
   Aurangabad                                               .. Respondents
                                                                 (Ori. Plaintiff)


3] State of Maharashtra
   through the Collector
   Aurangabad

4] The Municipal Corporation,
   Aurangabad
   Through its Commissioner,
   Aurangabad                                               .. Respondents
                                                            (Ori. Defendant No. 1 and 3)

                                   AND
                        SECOND APPEAL NO. 249 OF 2019

The Administrator
The City and Industrial
Development Corporation,
Through its Administrator,
Panjabrao S/o. Shyamrao Chavan
Age : 52 years, Occu. : Service
Off/at : "Udyog Bhavan",
Jalgaon Road, CIDCO, Aurangabad                             .. Appellant
                                                            (Ori. Defendant No. 2)


       VERSUS

1] Anwar Khan S/o Rahim Khan
   Age : 61 years, Occu : Business,
   Through General Power of Attorney
   Holder Shabbir Khan S/o. Rahim Khan



 ::: Uploaded on - 31/01/2022                 ::: Downloaded on - 01/02/2022 10:17:44 :::
                                      2                           SA / 248 / 2019




2] Shabbir Khan S/o Rahim Khan,
   Age : 56 years, Occu : Business,
   Both R/o. Rahim Nagar, Kiradpura,
   Aurangabad                                                  .. Respondents
                                                                      (Ori. Plaintiff)


3] State of Maharashtra
   through the Collector
   Aurangabad

4] The Municipal Corporation,
   Aurangabad
   Through its Commissioner,
   Aurangabad                                                     .. Respondents
                                                                  (Ori. Defendant No. 1 and 3)

                                       AND
                 CIVIL APPLICATION NO. 8176 OF 2019 IN SA/248/2019
                 CIVIL APPLICATION NO. 9565 OF 2021 IN SA/248/2019
                 CIVIL APPLICATION NO. 10433 OF 2021 IN SA/248/2019
                 CIVIL APPLICATION NO. 11881 OF 2019 IN SA/248/2019
                 CIVIL APPLICATION NO. 8175 OF 2019 IN SA/249/2019
                 CIVIL APPLICATION NO. 10434 OF 2021 IN SA/249/2019

                                        ...
                     Mr. A.S. Bajaj, Advocate for appellants
            Mr. P.S. Paranjape, Advocate and Mr. A.S. Kharosekar,
                     Advocate for respondents no. 1 and 2
                   Mr. B.V. Virdhe, AGP for respondent no. 3
                   Mr. Girish Awale, Advocate for Intervenor
                                        ...

                                CORAM             : MANGESH S. PATIL, J.

                                RESERVED ON   : 14 JANUARY 2022
                                PRONOUNCED ON : 31 JANUARY 2022

JUDGMENT :

These are two separate appeals by the original defendant

no. 2 (hereinafter "CIDCO"), being aggrieved and dis-satisfied by the

dismissal of its Regular Civil Appeal no. 516 of 2012 and allowing

Regular Civil Appeal no. 211 of 2013 of the respondents no. 1 and 2 -

plaintiffs by the common judgment and order dated 09-10-2018.

3 SA / 248 / 2019

2. Respondents no. 1 and 2 claiming to be the exclusive

owners of land survey no. 34/1, situated at Jaswantpura, Aurangabad

averred about the appellant having encroached over 28 Are portion of

their property and claimed declaration of ownership and possession.

The trial court decreed the suit partly and directed the appellant to

deliver possession of 13 Are portion.

3. Feeling aggrieved, both the sides preferred separate

appeals and the appellate court has decided the appeals by common

judgment and order under challenge. It dismissed the appeal of the

appellant but allowed the appeal of the respondents no. 1 and 2 and

modified the decree directing delivery of possession of 28 Are portion.

Hence, these two separate appeals.

4. The learned Advocate Mr. Bajaj for the appellant would

submit that both the courts below have grossly erred in appreciating

the facts, circumstances and evidence. Though the suit property was a

part of the entire land survey no. 34 comprising of different parts,

without there being clear demarcation of its sub-divisions, no inference

could have been logically deduced by the courts below squarely relying

upon the measurement carried out by the Deputy Superintendent of

Land Records - Bansode (PW 4) who carried out the measurement as

per the map Exhibit - 103 on the basis of which he testified about the

appellant having encroached over 28 Are portion.

4 SA / 248 / 2019

5. Mr. Bajaj would submit that the error committed by

Mr. Bansode (PW 4) could have been surfaced, had an opportunity of

cross-examining him was extended to the appellant. Irrespective of its

lapses at the trial, such a request was made even before the appellate

court by moving an application seeking permission to enable it to

cross-examine that witness, merely by observing that how the

appellant was guilty of lapses and the request was being made

belatedly that the request was declined by the appellate court while

deciding it along with the appeal itself. This has resulted in a gross

miscarriage of justice. The appellant is a statutory body and it could not

have any oblique intention to grab the property of anybody. The State

Government has acquired the land which has thereafter been allotted

to the appellant which is a special planning authority under section 40

of the Maharashtra Regional and Town Planning Act, 1966 (for short

"M.R.T.P. Act").

6. Mr. Bajaj would then submit that even without there being

cross-examination of Mr. Bansode (PW 4), a bare look at the

measurement carried out by him would clearly demonstrate that he had

not taken pains to find out the permanent boundary marks which were

so important, particularly when the total survey no. 34 is a land which

does not have regular boundaries and is irregular in shape. In the

absence of such permanent boundary marks, the entire exercise of

carrying out measurement by him becomes faulty.

5 SA / 248 / 2019

7. Mr. Bajaj would also submit that admittedly, even before

filing the suit, the respondents no. 1 and 2 had filed writ petition no. 123

of 1991. By the order dated 05-02-1991, the Division Bench of this

Court had allowed the writ petition and directed the District Inspector of

Land Records, Aurangabad who was the respondent no. 6, to carry out

measurement of the entire land survey no. 34 and to distinctly show as

to which of the portion was acquired for the purpose of the present

appellant and also another portion acquired for the purpose of

respondent no. 4 herein, which is Aurangabad Municipal Corporation.

It was specifically expected that the measurement to be carried out by

giving notice to all the concerned.

8. He would, therefore, submit that inspite of such specific

directions, the Survey Office had failed to carry out measurement

strictly in accordance with the directions and, therefore, the trial court at

the fag end, had passed an order directing re-measurement to be

carried out by observing that the measurement that was carried out by

Surveyor - Palkar (PW 1) was not strictly in accordance with the

directions of this Court. It is thereafter that Mr. Bansode (PW 4)

undertook the fresh measurement which is now being relied upon by

the courts below.

9. Inspite of such state-of-affairs, no care has been taken to

firstly find out the permanent boundary marks then to mark the sub-

divisions of survey no. 34 and then to demonstrate distinctly as to how

6 SA / 248 / 2019

much area is in possession of the appellant and how much area is

acquired by the respondent no. 4 Corporation. It also does not

distinctly demonstrate as to how he could arrive at a conclusion that

the entire encroached portion of 28 Are is from the suit property which

is described by the respondents no. 1 and 2 as survey no. 34/1.

10. He would therefore submit that all these errors and

shortcomings could very well be brought on record only if the appellant

is extended an opportunity to cross-examine Bansode (PW 4). The

appellate court has grossly erred in rejecting the request on sheer

technicalities. He would submit that even these errors should have

been noted by the courts below. Had they carefully appreciated this,

they would have reached a different conclusion. The measurement

carried out by Mr. Bansode (PW 4) was without recourse to the original

record from his office and simply carried out the measurement on the

basis of the earlier measurement carried out by Mr. Palkar (PW 1)

which shows that he did not carry out the measurement as was

expected of him by this Court.

11. Mr. Bajaj would therefore submit that though the findings of

facts of the courts below are concurrent and there are well settled

parameters limiting the powers of this Court to cause interference, the

present case is one of the exception where this Court should interfere

and remand the matter to the trial court with a further direction to

undertake a detail scrutiny on the above lines.

7 SA / 248 / 2019

12. Mr. Bajaj would submit that the appellant is a special

planning authority under the M.R.T.P. Act and consequently, the suit

itself was not maintainable and was beyond the limitation in view of the

provisions of section 159 of that Act read with schedule I clause 9. Mr.

Bajaj would also submit that assuming that appellant is in possession

of some more portion than what has been actually acquired under the

land acquisition award, the appropriate remedy for the respondents no.

1 and 2 would have been to make a reference under section 18 of the

Land Acquisition Act, 1894. Therefore, even for these two reasons, the

suit was not maintainable.

13. He would therefore submit that substantial questions of

law, as mentioned in the appeal memo arise for determination of this

Court and if the matter is not to be remanded right now, the appeals be

admitted and the execution and operation of the judgment and decree

under challenge be stayed till the decision of the second appeals.

14. Learned Advocate Mr. Paranjape for the respondents no. 1

and 2 would submit that the courts below have arrived at a conclusion

in respect of the fact of encroachment though there is a bit variance in

respect of the extent of such encroachment. They have rightly relied

upon the measurement carried out by Mr. Bansode (PW 4). Inspite of

having given sufficient opportunity by the trial court, the appellant had

failed to cross-examine the witness, it even failed to make a request to

the appellate court promptly immediately filing after the appeal. The

8 SA / 248 / 2019

request was made after five years of filing of the appeal. Having

considered all these aspects and gross negligence, the appellate court

was compelled to reject the request. No error is committed by it. No

substantial question of law arises for the determination of this Court in

these Second Appeals and these may be dismissed in limine.

15. The Appeals are admitted on the following substantial

questions of law:

(I) Whether the courts below have committed gross error in

appreciating the evidence that was available before them

while reaching a conclusion that there was encroachment

inspite of the lapses on the part of the surveyor

Mr. Bansode (PW 4) ?

(II) Whether the courts below have committed gross error in

appreciating the fact that without there being sufficient

permanent boundary marks, and without there being

original record Mr. Bansode (PW 4) could have undertaken

the measurement ?

(III) Whether the courts below have grossly erred in

overlooking the aspect of maintainability of the suit and

limitation in view of the provision of section 159 read with

schedule 1 clause 9 of the MRTP Act ?

9 SA / 248 / 2019

(IV) Whether the appellate court has erred in appreciating the

facts, circumstances and denying an opportunity to the

appellant to contest the suit by undertaking cross-

examination of Bansode (PW 4), inspite of being a

statutory body having no individual interest involved ?

16. I have considered the rival submissions and perused the

record. There cannot be any dispute about the fact that the appellant is

the special planning authority under the M.R.T.P. Act. As can be seen

from the copy of the award - Exhibit - 70 which was available before

the courts below, in-fact, a total area of 17 Acrs 34 Guntha equivalent

to 7 Hectare 24 Are out of different portions from land survey no. 34

was notified for acquisition for the purpose of appellant and out of that

a portion admeasuring 3 Acre 19 Guntha equivalent to 1 Hectare 41

Are from survey no. 34/2 was acquired and the respondents no. 1 and

2's predecessor being the owner, the award was passed in his favour

and the amount of compensation was apportioned amongst all his

heirs.

17. The thing to be noted is that the respondents no. 1 and 2

all the while have been describing the suit property as survey no. 34/1

whereas this award demonstrates that, in-fact, it is survey no. 34/2.

Assuming that it is a genuine error, this award further demonstrates

that as many as six portions from survey no. 34 were acquired of which

the areas under acquisition differ.

10 SA / 248 / 2019

18. I am pointing out this precisely to demonstrate that if at all

survey no. 34 was totally admeasuring more than 25 Acres and 38

Guntha and out of which 17 Acres and 34 Guntha was acquired from

different parts, one cannot comprehend as to how, without actually

demarcating such division, a measurement could have been carried

out precisely pointing out as to how much is the encroached portion

and from which of those various parts.

19. A bare look at the map Exhibit - 103 prepared by Mr.

Bansode would demonstrate that the alleged encroachment is said to

be in two parts though placed lineally. It is shown to be a triangular

shape having a fencing to the East. There is a road to the West and

apparently, this portion allotted to the appellant under the award ends

upto the fence or nearby. If this is so, one cannot understand as to

how could there be a portion left open in between these two pieces of

encroachment.

20. Again, as is pointed out by learned Advocate Mr. Bajaj,

Mr. Bansode (PW 4) does not seem to have carried out the

measurement on the basis of either any permanent record of his office

or with reference to permanent boundary marks. As can be noticed

from this map - Exhibit 103, he could find only one permanent mark. If

such is the state-of-affairs, I am afraid, how any conclusion could have

been drawn about the encroachment stated to have been carried out

11 SA / 248 / 2019

by the appellant and pointed out by this witness in the map - Exhibit -

103.

21. Assuming for the sake of arguments that the appellant was

guilty of lapses during trial as also before the appellate court, it was

expected of the courts below to have been on guard, particularly when

the appellant is a statutory body and there could have been no case of

any mala fides on its part since individual interests were not involved.

Since it was a matter of removal of encroachment by a statutory body

like appellant, the courts below ought to have been careful in insisting

for concrete and reliable proof regarding encroachment.

22. The observations and the conclusion of the courts below

would clearly demonstrate that they got swayed away by the fact that

there was no cross-examination of Bansode (PW 4) on behalf of the

appellant. Even in the absence of such cross-examination, when

afore-mentioned facts can be easily noticed, the courts below would

have not fallen in error had they carefully considered the material on

record as discussed herein-above. More importantly they have not

made any endeavour to find out asto if the measurement carried out by

Bansode (PW 4) was strictly in accordance to the directions of this

Court particularly when the trial court had specifically directed to

undertake fresh measurements and thereafter he had undertaken that

task.

12 SA / 248 / 2019

23. It is pertinent to note that though belatedly, the appellant

had made a request before the appellate court seeking permission to

cross-examine Bansode (PW 4). Though no fault can be found with

the observations of the appellate court that the appellant was guilty of

lapses not only during trial but even at the stage of appeal, it should be

borne in mind that the appellant was a statutory body and no individual

interest were involved. Even if it was guilty of lapses, it could be either

of the Advocate representing it or its officers. Since it is a statutory

body, in-fact, it is expected to protect the public interest. If really there

is some encroachment, indeed, there cannot be any objection for its

removal. However, the fact will have to be squarely established.

24. The afore-mentioned circumstances do not indicate that

the fact of encroachment has been brought on record by leading

cogent and reliable evidence. It is in the teeth of such state-of-affairs,

the appellate court could have permitted the appellant to cross-

examine the witness Bansode (PW 4) by remanding the matter for

decision afresh.

25. Apart from the above state-of-affairs, it is important to note

that being a special planning authority the interests of the CIDCO are

protected by the special provisions contained in the MRTP Act.

Though the pleadings were vague and not precise, a specific ground

was raised before the appellate court touching the aspect of

maintainability of the suit in the light of section 159 read with schedule

13 SA / 248 / 2019

1 clause 9 of the MRTP Act still the appellate court has not at all

adverted to and considered the ground which ex facie goes to the root

of the jurisdiction of the trial court. This, therefore, would be an

additional ground to remand the matter for decision afresh by framing

appropriate issue.

26. It is in view of such state-of-affairs, I allow the Appeals, by

answering the afore-mentioned questions in the affirmative but only

partly, with the hope that the trial court would now proceed with the suit

in the light of the observations made herein-above.

27. The Second Appeals are partly allowed.

28. The judgments of both the courts and decree under

challenge are quashed and set aside.

29. The matter is remanded back to the trial court. It shall now

decide the suit afresh by framing additional issue in the light of the

observation herein-above and by extending an opportunity to the

appellant to cross-examine the witness Bansode (PW 4). The

respondents no. 1 and 2 would be at liberty to lead additional evidence,

if they so desire, including by making a further request to carry out the

measurement in the light of the observations made herein-above.

30. The parties shall appear before the trial court on 4 March

2022 and there shall be no need for it to issue fresh notice/summons to

them.

14 SA / 248 / 2019

31. Considering the fact that the suit is grand old, the trial court

shall make every endeavour to decide it expeditiously. It is made clear

that all the points are kept open.

32. All pending civil applications are disposed of.

[ MANGESH S. PATIL ] JUDGE arp/