Bombay High Court
Damu Deoram Bhosale Alias Damodar ... vs The Maharashtra State Road Development ... on 28 April, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:20862-DB
22-WP-4322-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4322 OF 2024
Damu Deoram Bhosale ...Petitioner
Versus
The Maharashtra State Boar Development
Corporation & Ors. ...Respondents
__________
Mr. Pratik Tomti i/b. M.P. Vashi & Associates, for the Petitioner.
Ms. Yogita A. More i/b. Yogita More & Associates, for the Respondent No.1.
Mr. Sachin H. Kankal, AGP for Respondent Nos.2 and 4.
Mr. Pratik Divkar i/b. Ms. Rajni Divkar for Respondent No.3.
__________
PALLAVI
MAHENDRA
WARGAONKAR CORAM : G. S. KULKARNI &
Digitally signed by
PALLAVI MAHENDRA
WARGAONKAR
ADVAIT M. SETHNA, JJ.
Date: 2025.05.07
17:44:06 +0530 DATE : 28 APRIL 2025
ORAL JUDGMENT (PER ADVAIT M. SETHNA, J.) :
1. This petition under Article 226 of the Constitution of India is filed
for the following reliefs:-
"a. That a writ of mandamus or any other writ, order or direction
be issued, ordering and directing the Respondent No. 1 to direct
the Respondent No. 3 to remove the debris, stone, soil, murum,
construction material etc. on Gat Nos. 59, 60, 61, 70 and 74
and restore the land of the Petitioner to its original state.
b. That a writ of mandamus or any other writ, order or direction
be issued, ordering and directing the Respondent No. 1 to direct
the Respondent No. 3 not to enter and disturb the possession of
the Petitioner of Gat Nos. 59, 60, 61, 70 and 74 in possession of
the Petitioner.
c. That in the alternative of prayer (a), a writ of mandamus or
any other writ, order or direction be issued, ordering and
directing the Respondent No. 1 to direct the Respondent No. 3
to remove debris, stone, soil, murum, construction material etc.
on part of Gat Nos. 59, 60, 61, 70 and 74 which is in possession
of the Petitioner."
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2. The petitioner is primarily aggrieved by the alleged inaction of
respondent no.1 i.e. MSRDC who has failed to prevent the respondent
no.3 i.e. G.V.P.R. Co. - Private contractor from encroaching and causing
damage to the agricultural lands of the petitioner. We have heard Advocate
Shri Pratik Tomti, learned counsel for the petitioner and Ms. Yogita More,
learned counsel for the respondent no.1, Mr. Sachin Kankal, learned AGP
for respondent no.2 and Ms. Rajni Divekar, learned counsel for
respondent no.3 and with their assistance, we have perused the record. It is
the case of the petitioner that he is the owner of agricultural lands bearing
Gat No.59, 60, 61, and 70 situated at village Dhamani, Tal. Igatpuri,
District Nashik. The petitioner also claims to be the co-owner of lands
bearing Gat No.74 along with his family members situated at the same
location, collectively referred to as the subject agricultural lands.
According to the petitioner, a part of the said agricultural land has been
acquired by respondent no.1 in the year 2018 for construction of
Samruddhi Expressway also known as 'Hindu Hriday Samrat Balasaheb
Thackeray MahaMarg'.
3. The petitioner would further contend that he and his family
members have been paid compensation for acquisition of the part of such
subject agricultural lands, for the above project in June 2018. After the
acquisition of the subject agricultural lands was completed, the petitioner
is left with a small portion of such land i.e. about 15 to 30 gunthas each of
22-WP-4322-2024.doc
land bearing Gat Nos.59, 60 and 70, about 79 gunthas of land bearing
Gat No.74 and entire land bearing Gat No.61. The petitioner would
further state that after acquisition of part of the subject agricultural lands,
it was marked by respondent no.3 for installing pillars along with
boundary line of said Samruddhi Expressway. However, after the
construction work of the said expressway commenced, the respondent
no.3 suddenly started dumping debris, stone, soil, murum, construction
material, etc. on the part of the subject agricultural lands, in the possession
of the petitioner. The petitioner would further state that due to the action
of the respondent no.3 of dumping such debris, waste, etc. water is
accumulated on the subject agricultural lands in possession of the
petitioner. As a result, the petitioner is unable to carry out any agricultural
activities on the subject agricultural lands. The petitioner would state that
on 6 December 2020 respondent no.3 stole the soil from petitioner's
subject agricultural land. Such fact and other instances were reported by
the petitioner in its complaint dated 16 December 2020, addressed to the
Inspector of Police, Ghoti - Budruk, Nashik.
4. The petitioner has addressed several letters/communication to
respondent no. 3 as also complaints made to District Collector, Nashik
and complaints with the Executive Engineer of Respondent no. 1 against
the illegal acts committed by respondent no.3. However, there is no
response from the said authorities.
22-WP-4322-2024.doc
5. It is in the aforesaid backdrop, we have heard the learned counsel
for the parties and with their assistance we have perused the record. To us,
it is clear that the issues raised in the petition revolve around disputed
questions of fact. The relief sought against the respondent no. 3, who is a
company - private entity situated at Nashik. The petitioner is primarily
aggrieved by the acts of respondent no. 3 of dumping debris, stone, soil,
murum, construction material etc., on the petitioner's agricultural land.
The petitioner seeks action against the alleged acts of respondent no. 3 in
laying of cluster pipeline etc. on the subject agricultural land.
6. In our view, the petition which seeks a direction against respondent
no. 3 to remove the debris and other materials from the agricultural land
of the petitioner, and to further direct respondent no. 3 not to enter on
such land of the petitioner, are reliefs which are not maintainable in a writ
petition. In this view of the matter, we do not delve into the merits of the
rival contentions. The reliefs claimed against the respondent no.3, a
private contractor would completely fall within a realm of a private dispute
for which the private law/general remedy is available to the petitioner. In
any event, respondent no. 3 against whom the above reliefs are sought in
these proceedings, does not fall within the ambit and framework of Article
12 of the Constitution of India.
7. We may observe that, what the petitioner is asking us to do as noted
above would fall within the realm of disputed facts. It is trite law that such
22-WP-4322-2024.doc
disputes are not to be entertained by a writ court exercising its
extraordinary jurisdiction under Article 226 of the Constitution of India.
This is more particularly when there are alternate remedies in law
available in such cases of civil disputes including filing of a civil suit.
8. In the above context, we may gainfully refer to a judgment of the
Supreme Court in the case of Roshina T. vs. Abdul Azeez K. T.1, the
relevant portion of the judgment reads thus :-
"14. It has been consistently held by this Court that a regular suit is
the appropriate remedy for settlement of the disputes relating
to property rights between the private persons. The remedy
under Article 226 of the Constitution shall not be available
except where violation of some statutory duty on the part of
statutory authority is alleged. In such cases, the Court has
jurisdiction to issue appropriate directions to the authority
concerned. It is held that the High Court cannot allow its
constitutional jurisdiction to be used for deciding disputes, for
which remedies under the general law, civil or criminal are
available. This Court has held that it is not intended to replace
the ordinary remedies by way of a civil suit or application
available to an aggrieved person. The jurisdiction under
Article 226 of the Constitution being special and
extraordinary, it should not be exercised casually or lightly on
mere asking by the litigant. (Also Mohan Pandey v. Usha Rani
Rajgaria [Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC
61] and Dwarka Prasad Agarwal v. B. D. Agarwal [Dwarka
Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230].)"
Thus the Supreme Court has clearly held that a regular suit is the
appropriate remedy for settlement of dispute relating to contesting
property rights, when private persons are involved. Writ jurisdiction ought
not to be invoked when the remedy in general law available.
9. We are of the clear opinion that a writ court exercising its
extraordinary jurisdiction under Article 226 of the Constitution of India
1 (2019) 2 SCC 329
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cannot act as a civil court. Accepting the petitioner's prayers would
tantamount to converting a writ petition into a civil suit, which cannot be
countenanced.
10. In light of the foregoing discussion, we are certain that the writ
petition is neither maintainable nor entertainable and thus deserves to be
rejected. We accordingly pass the following order :-
ORDER
(i) The petition is dismissed. No Costs.
(ii) The petitioner is at liberty to take recourse to alternate
remedies including that of filing a Civil Suit before court
of competent jurisdiction and if he chooses to do so.
(iii) All contentions of the parties in such proceedings are
expressly kept open.
[ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]
