Aajabrao vs Sau. Kesharbai

A.I.S. Cheema, J.—The Appellant in this Second Appeal is the original Plaintiff who brought suit against Respondent Nos.1 and 2 (original Defendants) (Parties to be referred as arrayed in the trial Court), for permanent injunction to restrain them from taking steps to remove tea stall put in front of GALA i.e. shop purchased by him from Defendant No.1 Kesharbai. The Court of 2nd Joint Civil Judge, Senior Division, Dhule, dismissed the Regular Civil Suit No.152 of 2006 on 20th November,2008. The Regular Civil Appeal No.51 of 2009 filed before the Principal District Judge, Dhule by the Plaintiff, also came to be dismissed on 27th April, 2011. Now this Second Appeal has been brought against the concurrent Judgments.

The case in brief, as brought before the trial Court was as under:

(A) Gut No.71 at Devbhane, Taluka and District Dhule is owned by Defendant No.1. From this, 38 Are land was permitted by Defendant No.2 to be converted into non agricultural land. In such land, ten plots were made. In Plot No.10, small shops of 10 ft. X 15 ft. were made. From these shops, Plaintiff has purchased one shop of 10 ft. X 15 ft. The land concerned is bounded as under:

East: Bombay Agra Highway,

West: Plot No.9,

South: Remaining land of Gut No.71

North: Road going to Devbhane village.

(B) The suit as brought by the Plaintiff claimed that there is open space of Gut No.71 in front of the shop, towards the East, used as way. It is claimed (in Plaint Para 3) by the Plaintiff that in front of his shop, there is portion of Gut No.71 abutting the Bombay Agra National Highway and the portion is open and yet not taken in possession by the National Highway Authorities for expansion of the road. Plaintiff has put hotel in the place purchased by him and the place in front. The hotel put by him is not by way of encroachment, however, Defendant No.1 complained to Defendant No.2 that there is encroachment on the road and Defendant No.2 was pressurizing Plaintiff to remove the same. The structure put up by Plaintiff is temporary of wood and sack cloth. If the same is removed, the Plaintiff will suffer in source of his livelihood. Thus, the suit.

The Defendants appeared and filed written statements and the suit was contested. Issues were framed and the parties led oral and documentary evidence on record. Trial Court after examining the oral and documentary evidence, held that the Plaintiff failed to prove that the tea stall was in the Plot No.10 of Gut No.71. It was found that the Plaintiff had made the tea stall by encroaching on open land. It was also held that Plaintiff was not entitled to injunction as prayed. Trial Court discussed map of T.I.L.R. brought on record at Exhibit 64. The temporary construction was made on corner of East and North side in the open space in front, which was adjacent to the Mumbai Agra Highway. As per the measurement of T.I.L.R. the trial Court found that the tea stall constructed was not part and parcel of the construction in which shop of Plaintiff was there. The Court considered the evidence of Plaintiff where he admitted that in the said measurement, it was found that he had encroached in the said plot near about 30ft. X 20ft. portion. The space encroached was not part and parcel of what was purchased by the Plaintiff. Court observed that on the revenue side the matter has been carried to Additional Collector, Dhule in R.T.S. Appeal No.55 of 2005, against orders of Sub Divisional Officer and the same had been dismissed. No appeal has been filed against the decision of the Additional Collector. The Court observed that the Plaintiff had no right title to the open space situated opposite the shop purchased by him and the Court declined to grant injunction in favour of the Plaintiff.

When the Appeal was carried to the District Court, the Plaintiff was unable to convince the District Court that there was any error committed by the trial Court. District Court found that the findings of the trial Court were based on proper appreciation of evidence. It was argued before the District Court that the construction was not on the land of the Highway Authorities but it was on private property, so the Tahsildar has no right to remove encroachment.

The Defendants claimed that Plaintiff had no right to make construction in the open space and the matter was decided by the Revenue Authorities and the Plaintiff had remedy available and so the suit before the Civil Court was not maintainable. The District Judge discarded the 7 arguments on behalf of the Plaintiff and found that the description of the suit property showed that the property is space near Highway out of Survey No.71. The District Judge referred to the pleadings of the Plaintiff that he had purchased only the shop. As such it was found that the Plaintiff cannot be owner of excess land than 10ft. X 15ft. shop as purchased by him and so cannot make additional construction on any space of Survey No.71. It has been held by the District Judge (first appellate Court) that the Plaintiff does not have right to make construction or protect possession over the land where he has made construction whether temporary or permanent. The point in dispute was already decided by the Revenue Authorities and remedies as provided under Maharashtra Land Revenue Code, 1966 were open to the Plaintiff if he is aggrieved by the orders of the Revenue Authorities. In the circumstances, the District Judge has found that Plaintiff does not have any legal right to protect possession over the land in front of the shop. The Appeal thus came to be dismissed.

When the present Appeal came up before this Court, learned counsel for the Plaintiff submitted that Plaintiff had purchased only a portion of 10ft. X 15ft. and he had made the temporary tea stall in front of his shop, in the open space between the National High way and the shop. The learned counsel for Plaintiff did not dispute the finding of the facts of the trial Court and first appellate Court that there is encroachment made by the Plaintiff in the open space between the shop and the National Highway. The learned counsel for the Plaintiff submitted that if the open space where encroachment is made is part of Gut No.71 of the Defendant No.1, then it was for Defendant No.1 to move Civil Court for removal of the same and Defendant No.2 Tahsildar would have no jurisdiction to interfere. He submitted that if the said tea stall is in the portion of the Highway, then it is the National Highway Authority which is required to take steps and even in that case, Defendant No.2 would have no authority to interfere for getting the encroachment removed.

After hearing the parties and considering the record and with concurrence of both sides the substantial question of law was framed, which is as under:

" Whether Respondent No.2 could not have proceeded against the Appellant regarding the encroachment? "

Reference is made by learned counsel for Plaintiff to the written statement filed by Defendant No.2 Tahsildar in the trial Court where, in Para 4 reference was made to the orders passed by the Sub Divisional Officer that the structure was made in open space abutting the National Highway which could not have been made and such encroachment should be removed. It has been argued that the Tahsildar or Revenue Authorities had no jurisdiction. The learned counsel submitted that in any eventuality, the Revenue Authorities had no jurisdiction. The Plaintiff may be an encroacher but the right procedure should be followed to remove the encroachment, it is submitted.

Against this, learned counsel for the Defendants submitted that if the Plaintiff is seeking injunction, he has to stand on his own legs and should show his bona fides for claiming the injunction. Admittedly, the shop purchased is only of 10ft. X 15ft. Reference is made to the orders passed by the Sub Divisional Officer. The orders of the Sub Divisional Officer are available in the paper book filed by the parties and which Order is at Exhibit 81 in the trial Court. The order refers to the fact that the point for consideration before the Authority was, whether there is encroachment in the 50ft. open space abutting the National Highway. It is observed that there are Rules, namely, the Maharashtra Land Revenue (Conversion of Use of Land and Non Agricultural Assessment) Rules, 1969 ("Rules of 1969", in brief) and as per Entry in Schedule II below Rule 4(1), in such portion no construction can be made. Reference was made to measurements got done and exercising powers u/s 138(2) of the Maharashtra Land Revenue Code, 1966, the Plaintiff was directed to remove the encroachment made in the open space by this order dated 31st December, 2004.

Rules of 1969 prescribe Form of Application under sub section (1) of Section 44 of the Maharashtra Land Revenue Code. Rule 4 refers to conditions in which permission may be granted by the Collector. Relevant provision reads as under:

"Schedule II

[See Rule 4(1)(e)]

Provision for construction of buildings between boundary of a road and building line and between building line and control line in areas on which Chapter III of the Bombay Highway Act, 1955 is not in force.

Subject to the provisions of this schedule, no person shall without the previous permission in writing of the Collector-

(a) upon any land lying between boundary of a road and building line, specified under clause 2 erect any structure or materially alter any existing structure or change user of land;

(b) upon any land lying between building line and the control line specified under clause 2 erect any structure for any industrial or commercial purpose including cinema houses which attract large number of vehicles.

As respects the class of roads specified in column 2 of the table hereto, the building line and control line measured from the centre of any such road shall in any urban or industrial area be as specified in columns 3, 4, 5 and 6 and in any non urban excluding industrial area as specified in columns 7 and 8 of the table against each such class of road:

Provided that, at curves on each such road, the building line shall be set at an increased distance equal to 20 per cent of building line specified as aforesaid."

Table is then provided prescribing distance for building line and control line from, inter alia, National Highways and State Highways.

Keeping in view these provisions, the Sub Divisional officer invoked powers as above. It cannot be said that it was no concern of Revenue Authorities to take steps to remove encroachment as appearing in present matter.

It has been argued by the Defendants that against the orders of the Sub Divisional Officer, Appeal was filed to the Additional Collector vide R.T.S. No.55 of 2005 u/s 247 of the Maharashtra Land Revenue Code, 1966, and the same was dismissed on 30th August, 2005. The Plaintiff had the option to file revision to Divisional Commissioner u/s 257 of the Maharashtra Land Revenue Code but he did not resort to that remedy and instead, filed present Suit on 3rd July, 2006. It has been argued by the learned counsel for Defendant No.1 that report of the T.I.L.R. as available before the trial Court showed that the tea stall which is made by way of encroachment, is partly in Plot No.10 and partly in Government land of the Highway on the East and North side in the open space adjoining the Highway. Thus, according to the learned counsel for Defendant No.1, the Revenue Authorities were justified in taking action. According to him, the Plaintiff who is admittedly an encroacher, is not entitled to any injunction.

I find substance in the submissions made by the learned counsel for Defendants. The argument by the learned counsel for the Plaintiff that if it is space which is part of the National Highway then the National Highway Authorities should take steps, can be discarded if the contents of the Plaint are perused. Plaintiff himself stated in Para 3 of the Plaint that in front of his shop, there is portion of Gut No.71 abutting the Bombay Agra National Highway and the portion is open and yet not taken in possession by the National Highway Authorities for expansion of the road. If this is so, the Revenue Authorities would still be entitled to ensure that the open space near the Highway does not get encroached or the user is not changed. If the Plaintiff was aggrieved by the steps being taken by the Sub Divisional Officer and Additional Collector, there was remedy open u/s 257 of the Maharashtra Land Revenue Code. This being so, u/s 41(h) of the Specific Relief Act, 1963 as equally efficacious relief could be obtained on the revenue side, suit for injunction could not be maintained and the Courts below were justified in not granting injunction in favour of the Plaintiff. In view of complaints made by Defendant No.1, looking to the facts of the matter the Defendant No.2 had authority to proceed and when Plaintiff conceded to the jurisdiction of Revenue Authorities in the appeal to the Additional Collector, and did not dispute jurisdiction or authority to proceed, contesting in Civil Courts in Second Appeal the Authority cannot be questioned. If the orders of Sub Divisional Officer are read along with Rules of 1969 referred above, it cannot be said that Revenue Authorities cannot proceed against encroachment as in the present matter. Revenue Authorities were justified in proceeding against Appellant. No interference in concurrent Judgments is called for. In the circumstances, there is no substance in the Appeal.

The Second Appeal is dismissed with costs.