Bombay High Court
Vishal Rajendra Tondchirkar And Others vs Dnyanoba Govindrao Chamle And Others on 29 January, 2025
2025:BHC-AUG:2962
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10847 OF 2022
1. Vishal s/o Rajendra Tondchirkar
age 36 years, occ. Business
2. Rajendraprasad s/o Vidyaprasad Tiwari
age 60 years, occ. Pensioner
3. Ramesh s/o Devidasrao Chimegaonkar
age 62 years, occ. Agril,
4. Vrandavana s/o Abhay Patil
age 42 years, occ. Business
5. Bharat s/o Somnath Pastapure
age 64 years, occ. Business
All r/o Shivaji Graha Nirman Sahakari
Sanstha Ltd. Opp. Bus Stand
Ugdir, Tq. Udgir, Dist. Latur .. Petitioners
versus
1. Dnyanoba s/o Govindrao Chamle
age 85 years, occ. Agril
r/o c/o Shriram s/o Dnyanoba Chamle
Dam Road, Udgir, Tq. Udgir, Dist. Latur.
2. Shivaji Graha Nirman Sahakari Sanstha Ltd.
Opp. Bus Stand Udgir
Through its Liquidator.
3. Chandrakant s/o Narayanrao Mukkawar
age major, occ. Business
4. Suryakant s/o Narayanrao Mukkawar
age major, occ. Business
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5. Sow. Sunanda w/o Chandrakant Mukkawar
age major, occ. Household
6. Vijaykumar /so Girjappa Shahir } (deleted as per
leave granted vide
order dt. 29.11.2022
7. Rajaram s/o Bhagwanrao Deshmukh
deceased through LRs.
7A) Gopal s/o Rajaram Deshmukh } (deleted as per leave
} granted vide order
7B) Sharad s/o Ambadas Deshmukh } dated 29.11.2022
Respondent Nos. 3 to 7 are residents of
Shivaji Graha Nirman Sahakari Sanstha Ltd.
Opp Bus Stand Udgir, Tq. Udgir
Dist. Latur.
8. Maruti s/o Dashrath Tandale
deceased through LRs.
8A) Nandkishor s/o Maruti Tandale
age 57 years, occ. Business
Presently residing at House No. 3-17-304
Rokdiya Hanuman Colony,
Near Hanuman Mandir,
Kranti Chowk, Aurangabad 431005.
9. Deputy Superintendent of Land Records
Udgir, Tq. Udgir, Dist.Latur.
10. The Chief Officer
Municipal Council, Ugdir
Dist. Latur.
11. Smt. Sheela w/o Rudradeo Jadhav
age 63 years, occ. Household
r/o Plot No. 24, Shivaji Graha Nirman
Sahakari Sanstha Ltd., Opp. Bus Stand
Udgir, Tq.Udgir, Dist. Latur 413517
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12. Ramesh s/o Narsingrao Ekambe
(Deceased through LRs)
12(1) Sharda s/o Ramesh Ekambe
age major, Occ. Household
12(2) Sheetal w/o Deelip Biradar
age major, occ. Household
12(3) Ajit s/o Ramesh Ekambe
age major, occ. Business
12(4) Amit s/o Ramesh Ekambe
age major, occ. Business
Respondent Nos. 12(1) to 12(4) are residents
of Plot No. 25, Shivaji Gruh Nirman Sahakari
Sanstha Ltd., Opp. Bus Stand, Udgir
Tq. Udgir, Dist. Latur.
12A Smt. Pushpa w/o Satish Ekambe
age 59 years, occ. Household
r/o Plot No. 25, Shviaji Graha Nirman
Sahakari Sanstha Ltd. Opp. Bus Stand
Udgir, Tq. Udgir, Dist. Latur 413517. .. Respondents
Mr. R. N. Dhorde, Senior Counsel instructed by Mr. K. P. Rodge,
Advocate for the Petitioners.
Mr. B. A. Shinde, AGP for the State.
Mr. A. V. Patil, Advocate for Respondent No. 1.
Mr. S. V. Natu, Advocate for Respondent No. 2.
Mr. B. N. Patil, Advocate for Respondent Nos. 3 to 5.
Mr. C. C. Deshpande, Advocate for Respondent No. 8A.
Mr. P. V. Barde, Advocate for Respondent No. 10.
Mr. J. R. Patil, Advocate for Respondent No. 11.
Mr. V. S. Kadam, Advocate for Respondent Nos. 12, 12A, 12(1) to
12(4).
CORAM : R. M. JOSHI, J.
DATE : 29th JANUARY, 2025.
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JUDGMENT :
1. By consent of both sides, heard finally at stage of
admission.
2. This petition takes exception to the order passed below
Exhibit 184-A dated 12.09.2022 in Regular Darkhast No. 3/1999 as
well as order passed below Exhibit 140 dated 11.01.2019 of issuance
of possession warrant for allotment of plot from open space.
3. For the purpose of appreciating contentions of rival
parties, recording of facts in nutshell is necessary.
Respondent No. 2 is a cooperative housing society
registered under the Maharashtra Cooperative Societies Act, having
42 members. There were 42 plots as per the approved lay out.
Respondent No. 1 since did not submit his willingness, no plot was
allotted to him and his membership came to be cancelled on
14.06.1968. Respondent No. 1 filed dispute before the Co-operative
Court, Nanded bearing CCL No. 634/1990 for allotment of plot. It
was the case of the society before the Cooperative Court that plot is
not available and that Respondent No. 1 is no more member of the
society. The Cooperative Court passed judgment and award dated
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20.12.1995 and a direction was issued to Respondent No. 2/society
to allot plot, if any available, by removing encroachment. This order
was not challenged by the society and has attained finality.
4. Respondent No. 1 thereafter filed execution proceeding
being Regular Darkhast No. 3/1999 to get the award passed by the
Cooperative Court executed from Civil Court. In the earlier round of
litigation, it was held by the Civil Court that the award is not
executable. Said order came to be challenged in Writ Petition No.
4611/2008 with the averment that an opportunity be given to
Respondent No. 1 to point out identity of the plot which could be
allotted to him. The said petition came to be allowed and the matter
was relegated back to the Execution Court. It was the case of
Respondent No. 1 that there is encroachment by certain members
and because of which one plot has disappeared. The Court
Commissioner came to be appointed to measure the land and it was
found that there was encroachment by certain members and
therefore plot was not available. Execution Court, therefore, passed
order of issuance of possession warrant on 11.01.2019. Petitioners
filed Writ Petition bearing No. 6772/2019 taking exception to the
said order dated 11.01.2019. Said petition came to be withdrawn
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with liberty to prosecute remedy before appropriate forum in
accordance with law by order dated 16.03.2022. Petitioners,
thereafter filed application vide Exhibit 184-A under Section 47,
Order 21 Rule 99 and 101 of Civil Procedure Code in Regular
Darkhast No. 3/1999 and raised objection for allotment of plot from
open space to the decree holder. The Execution Court rejected the
application hence this petition.
5. At this stage, it would be relevant to take note of
application Exhibit 184-A filed before the Execution Court. Apart
from the other contentions, it is specifically averred therein that while
executing the award, no proper notices were issued to the members.
In some cases, notices were issued to the members and hence they
sought themselves to be joined as party to the execution proceeding.
Apart from this, it is contended that since no plot is available and as
plot from open space cannot be allotted, the award is not executable.
Learned Execution Court rejected the application with cost.
6. Heard learned counsel appearing for Petitioners and
respective Respondents.
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7. Learned Senior Counsel appearing on behalf of
Petitioners submits that the Petitioners are aggrieved by execution
proceedings and likely to be affected by execution of the final order
passed by the Cooperative Court in CCL No. 634/1990. He drew
attention of the court to the fact that the dispute was filed against
society represented by managing committee and other 5 persons.
The dispute came to be dismissed against Opponent Nos. 1(a), 2(17),
2 to 16. The order was passed only against Opponent No. 1/society.
It is his contention that thus, there is no order against the Petitioners
or any other member of the society. It is his submission that once
there is no order against the Petitioners or any other member of the
society, question of execution of the same against them does not
arise. It is his submission that Clause No. ii of operative order reads
that the opponent/society shall take steps to remove the
encroachment made by the members on open space and on the roads
of the society and see that if any plot can be made available for
allotment to the disputant and if so, approval from the competent
authority be obtained if necessary. It is his submission that this
order cannot be construed as a licence given to the society to remove
alleged encroachment without following due process of law.
According to him, since order is passed by Cooperative Court without
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hearing Petitioners and in fact no order is passed against any
member of society, question of same being executed against them
does not arise. Thus, it is his submission that in any case, the
Petitioners being the persons likely to be aggrieved by execution of
the award, they are necessary parties to the execution proceeding
and hence, Petition be allowed.
8. Learned counsel for Respondent No. 10 has raised
exception to the maintainability of the Petition on the ground that
alternate remedy is available for the Petitioners to file appeal against
the impugned orders as provided by provisions of Section 47, Order
21 Rules 101 and 103 of Code of Civil Procedure.
9. Learned counsel for Respondent No. 1 vehemently
opposed the petition firstly on the ground that the Petitioners had
challenged the order passed below Exhibit 140 before this Court by
filing Writ Petition No. 6772/2019. This petition was subsequently
withdrawn and a such the second petition on the same subject is not
maintainable. On merit of the petition, he drew attention of the
Court to the order passed by this Court dated 11.01.2023 in the
instant petition, wherein this Court had directed the Municipal
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Council to submit a report in respect of extent of encroachment by
other plot owners in the sanctioned lay out so also in the compulsory
open space which is required to be maintained. It is his submission
that pursuant to the said order, the Municipal Council has submitted
its report indicating encroachment done by the Petitioners and other
members of the society. It is his submission that in view of said
order passed by this Court, it is open for the Municipal Council to
take action against the encroachers and that decree can be executed.
To support his submission, he placed reliance on judgment of Hon'ble
Supreme Court in case of Bhagwat Sharan (Deceased through LRs)
vs. Purushottam and others, AIR 2003 MP 128.
10. At the outset, it needs to be recorded that there is no
order/decree against the Petitioners or any other member of the
respondent No. 2/ cooperative housing society. In fact, the dispute is
dismissed against other Respondents therein. There is no finding
recorded by the Cooperative Court that any encroachment including
extent thereof being done by the members of the society. Even
otherwise, no such finding could have been recorded in absence of all
the members being made as party to the dispute. Thus, it can be
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said that the award in question is not binding on Petitioners or any
other member of the society.
11. In the light of this, question arises as to whether it was
permissible even for this Court also to direct the Municipal Council to
ascertain the alleged encroachment and to take action on behalf of
such report filed by the Municipal Council. With utmost respect to
the said order, such course of action cannot be permitted to be
adopted and hence a candid answer to such question would be in
negative. The reason therefor is that whenever there is any
encroachment alleged against any person, he is entitled to be heard
and defend the said allegation. Though the Municipal Council being
the planning authority or even the cooperative society may be
permitted to take action for removal of encroachment, but the same
cannot be done in this manner i.e. without giving an opportunity to
the persons against whom the encroachment is alleged and to direct
removal of encroachment on the basis of report without testing its
correctness and without extending any opportunity to aggrieved
party to disprove the allegation. The principle of audi alteram
partem cannot be given go by. Any order in violation of principles of
natural justice, would render it nullity. Thus, this Court finds no
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reason to accept contention of learned counsel for Respondent No.
2/society that on the basis of report submitted by the Municipal
Council to this Court, it should be permitted to remove alleged
encroachment found as per the said report. Permitting such course
of action will deny fair opportunity to the Petitioners and other
Respondents against whom allegation of encroachment is made and
the same would certainly lead to miscarriage of justice. There can
never be any justification of encroachment made by any person but
its removal must be done as per law. This Court cannot become a
party to perpetrate illegality and in no circumstances any order can
be passed in violation of principles of natural justice.
12. Though it may be open for the Municipal Council as well
as Respondent No. 2/society to take action against encroachment,
the same has to be done in accordance with law and not on the basis
of some report submitted by the Municipal Council. Hence, it is
specifically observed that though this Petition is allowed, the same
would not preclude the Municipal Council or Respondent No.
2/society to take action against the alleged encroachers in
accordance with law.
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13. As far as issue of maintainability of petition raised by one
Respondent is concerned, since non providing of opportunity of
hearing to the petitioners in execution proceeding in the facts of the
case would lead to miscarriage of justice, without going into technical
objection to maintainability, the same is entertained.
14. Suffice it to say that Petitioners are the persons who are
likely to be affected by execution of order passed by Cooperative
Court and hence in consonance with basic principle of law, they are
required to be heard in the matter. As a result of this, petition
deserves to be allowed partly. Impugned order dated 12.09.2022
passed below Exhibit 184-A is set aside. Application Exhibit 184-A is
allowed to the extent of permitting Petitioners to join as party to the
execution proceeding. Further orders be passed after giving an
opportunity of hearing to the Petitioners.
( R. M. JOSHI)
Judge
dyb
