Disposed

Baban Namdeo Suryawanshi and Others v. the State of Maharashtra and Others

Bombay HC9 Apr 2018CA/2800/2018

Case brief

AI extract

What is this about?

The High Court disposed of a public interest litigation filed to remove encroachments on government land allotted to a cooperative society. The court held that since the State had partially removed encroachments and pending litigation remains, no further orders were necessary. The civil application was also disposed of.

What did the court decide?

Order to pay Rs.10,000 to Child Care Home; Rs.15,000 refunded to petitioner; PIL and Civil Application disposed of.

Baban Namdeo Suryawanshi and Others Vs the State of… — Land Acquisition | Bombay HC (2018)

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pil127.16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 PUBLIC INTEREST LITIGATION NO.127 OF 2016

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Deepak s/o Venkatrao Dadajwar,
Age-36 years, Occu:Agriculture
and social work,
R/o- At Post-Dabhad, Tq-Ardhapur,
Dist-Nanded.

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...PETITIONER

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 VERSUS

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1) The State of Maharashtra, Through Secretary in the Department of Forest and Revenue, Mantralaya, Fort, Mumbai-32,

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2) The District Collector, Nanded, 3) The Sub-Divisional Officer, Nanded,

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4) The Tahsildar at Ardhapur, Tq-Ardhapur, Dist-Nanded,

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5) Laxman s/o Nagnath Suryawanshi, Age-65 years, Occu:Agri,

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6) Vishwanath s/o Tulshiram Suryawanshi, Age-60 years, Occu:Agri,

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pil127.16

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7) Subhash s/o Bhiwaji Suryawanshi,
 Age-40 years, Occu:Agri,
8) Mohan s/o Kashinath Suryawanshi,
 Age-80 years, Occu:Agri,
9) Narhari s/o Deoba Suryawanshi,
 Died through L.Rs:
9-A) Arvind s/o Narhari Suryawanshi,
 Age-35 years, Occu:Agri.,
10) Rama s/o Narhari Suryawanshi,
 Died through L.Rs:
10-A) Parvatibai w/o Rama Suryawanshi,
 Age-65 years, Occu:Agri & household,
11) Mukund s/o Punjaji Paikrao,
 Age-62 years, Occu:Agri & Household,
12) Raju s/o Nivratti Suryawanshi,
 Age-40 years, Occu:Agri,
All R/o-Dabhad, Tq-Ardhapur,
 Dist-Nanded.
...RESPONDENTS

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 ...
 Mr.A.M. Mukhedkar Advocate for Petitioner.
 Mr.S.B. Yawalkar, Additional Government
 Pleader for Respondent Nos. 1 to 4.
 Mr.G.G. Suryawanshi Advocate for Respondent
 Nos.5 to 12.
 ...
WITH

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pil127.16

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 CIVIL APPLICATION NO.2800 OF 2018
 IN

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 PUBLIC INTEREST LITIGATION NO.127 OF 2016

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1) Baban s/o Namdeo Suryawanshi, Age-55 years, Occu:Agri.,

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2) Madhukar s/o Shankar Suryawanshi, Age-50 years, Occu:Agri.,

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3) Khanoji s/o Shankar Suryawanshi, Age-32 years, Occu:Labourer,

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4) Narayan s/o Sadhuji Suryawanshi, Age-60 years, Occu:Agri.,

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5) Balaji s/o Narhari Suryawanshi, Age-52 years, Occu:Agri.,

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6) Ashok s/o Bhivaji Suryawanshi, Age-55 years, Occu:Agri.,

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7) Chandoji s/o Gomaji Narwade, Age-70 years, Occu:Agri.,

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8) Saheb s/o Bhivaji Suryawanshi, Age-52 years, Occu:Agri.,

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9) Tukaram s/o Kerba Suryawanshi, Age-55 years, Occu:Agri., All R/o- Dabhad, Tq-Ardhapur, Dist-Nanded.

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...APPLICANTS

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 VERSUS

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1) The State of Maharashtra, Through: Secretary in the Department of Forest and Revenue, Mantralaya, Fort, Mumbai-32,

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2) The District Collector, Nanded,

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3) The Sub-Divisional Officer, Nanded,

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4) The Tahsildar at Ardhapur, Tq-Ardhapur, Dist-Nanded,

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5) Deepak s/o Venkatrao Dadajwar, Age-37 years, Occu:Agri. & Social Work, R/o- At Post-Dabhad, Tq-Ardhapur, Dist-Nanded.

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...RESPONDENTS

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 ...
 Mr. R.M. Jade Advocate for Applicants.
 Mr.S.B. Yawalkar, Additional Government
 Pleader for Respondent Nos. 1 to 4.
 Mr.A.M. Mukhedkar Advocate for Respondent
 No.5.
 ...

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CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

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 DATE : 9TH APRIL, 2018

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ORDER :

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1. This Public Interest Litigation is filed
with following substantive prayers:

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" B] By issuing a Writ of Mandamus or
any other appropriate Writ or order of
a like nature, the Respondent Nos.2 to
4 may please be directed to remove
encroachments over the lands bearing
Gut Nos.116 and 180 sitauted at Dabhad,
Tq-Dabhad, Dist-Nanded, as prayed for
in representations dtd.30-05-2016 and
09-06-2016, submitted by the Petitioner
to Respondent Nos.2 to 4 (annexed at
Exhibit-H Collectively);

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C] The Respondent Nos.2 to 4 may please
be directed to take decision on
representations dt.30-05-2016 and 09-
06-2016, submitted by the Petitioner to
them(annexedatExhibit-H
Collectively), regarding removal of
encroachments over lands bearing Gut
Nos.116 and 180 situated at Dabhad, Tq-
Dabhad, Dist-Nanded, by issuing a Writ
of Mandamus or any other appropriate
Writ or Order of a like nature."

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Learned counsel appearing for the

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2.

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Petitioner, referring to the pleadings in the
Petition, submits that at Village Dabhad, Tq-
Ardhapur, Dist-Nanded, there is a Government land
bearing Gut Nos.116 and 180, totally admeasuring
35 Hectors and 01 R. Out of said land, an area of
land admeasuring 2 Acre and 33 R is acquired by
MSEDCL for setting up its 33 KV Sub-station and
area of land admeasuring 15 Hectors and 43 R is
allotted by the State Government to a society
namely Dabhad Sahakari Aaudyogik Vasahat,
(hereinafter referred to as "the said society")
which is a society registered under the provisions
of Maharashtra Cooperative Societies Act, 1960,
having purpose of setting up industrial township
for its members. However upon the part of said
land admeasuring 15 Hectors 43 R, some encroachers
have made encroachment. It is submitted that on
13th April, 2007 the said society has also
deposited an amount of Rs.9,76,880/- with State
Government towards purchase price of said land and
accordingly the name of said society is mutated as

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owner and possessor of the said land over the
Revenue record. Learned counsel further submitted
that although the process of allotment of land to
said society for setting up Industrial township at
Dabhad is approved by the State Government,
however due to encroachment over said land, the
township could not be set up till now.

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3.Learned counsel appearing for the

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Petitioner further referred to the proceedings
filed by the encroachers before the learned Civil
Judge, Senior Division at Nanded bearing Regular

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Civil Suit No.588 of 2001. The learned counsel
further referred to Writ Petition Nos.2801 of 2009
and 2802 of 2009 filed by the encroachers before
this Court, which came to be dismissed as
withdrawn with liberty to the Petitioners therein

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to approach the competent authority to claim the
Patta rights. Learned counsel further submitted

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that yet another proceeding was initiated by the
Encroachers before the Tahsildar at Ardhapur

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pil127.16

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bearingCaseNo.2000/A/Jamabandi/Jamin/CR-3

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seeking grant of Patta rights. The Tahsildar after
considering all the aspects of the matter, held
that the said encroachers are not entitled for
Patta rights for want of sufficient evidence.

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4.Learned counsel submitted that the
Petitioner made representations dated 30th May,
2016 and 9th June, 2016 to Respondent Nos. 2 to 4
praying for removal of encroachment over the said
land, however, neither the said representations
are replied, nor any action is yet taken. It is
lastly submitted by the learned counsel that
Public Interest Litigation deserves to be allowed.

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5.Learned Additional Government Pleader
appearing for Respondent Nos.1 to 4, referring to

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the reply filed on behalf of Respondent Nos.2
to 4, submits that a Civil Suit bearing No.RCS 588
of 2001 was filed by the encroachers before the
Court of learned Civil Judge, Senior Division,

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Nanded and the same was partly decreed vide
Judgment and order dated 5th January, 2006,
declaring that ten out of eighteen encroachers are
entitled to claim patta rights in respect of their
possession. Learned Additional Government Pleader

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further submits that though appeal filed by the
District Collector, Nanded bearing No.RCA 13 of
2006 is dismissed for non prosecution, however the
State has filed a Misc. Civil Application bearing
No.179 of 2008 for restoration of the same and
further steps are being taken in that regard.
Learned Additional Government Pleader further

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submits that so far as the encroachers whose
claims have been dismissed by the learned Civil
Court, on 3rd July, 2017 the Tahsildar, Ardhapur

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has issued notice to the said encroachers as
contemplated under Section 50(3) of the M.L.R.
Code, 1966. Time of seven days is given to the
said encroachers for removal of the encroachment

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made by them. It is submitted that further steps
would be taken as permissible in law for removal

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pil127.16

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of encroachments.

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6. Learned Additional Government Pleader,

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referring to the additional affidavit in reply
filed on behalf of Respondent Nos.2 to 4, further
submits that, the encroachments on the said land
situate at village Dabhad, Tq-Ardhapur made by
eight persons has been removed. The possession of
the vacant land has been handed over by the Circle
Inspector, Dabhad to the village Grampanchayat
Dabhad. He therefore, submits that as the
grievance raised by the Petitioner stands
satisfied, the Public Interest Litigation may be
disposed of.

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7.Learned counsel appearing on behalf of

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Respondent Nos.5 to 12, referring to the affidavit
on reply filed on behalf of the concerned
Respondents, submits that, the Petitioner has not

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come before this Court with clean hands and he has
no locus standi to file this Public Interest

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Litigation for the reason that, I) Petitioner is
close relative of Chairman of Dabhad Audyogik
Sahakari Vasahat Dabhad, II) He is police patil of
village Dabhad, III) He has not mentioned whether
he is member of the said Audyogik Sanstha or not,

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IV) He has not prevented to mention his name in
the panchnama made by the Circle Officer dated
20th January, 2011, in respect of removal of
encroachment of concerned Respondents. V) The
Petitioner is projected to file this PIL on behalf

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of said Audyogik Society Dabhad, which is
interested in the subject matter. VI) The village

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panchayat is not made party Respondent in this
PIL, which can give the status of the land in
dispute. VII) The Dabhad Audyogik Vasahat Society

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is not a party to this PIL, whereas the Regular
Civil Suit No.467 of 2008 is pending before
learned Civil Judge, Senior Division, Nanded filed
by the society in which Audyogik Society claimed

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for declaration of decree passed in R.C.S. No.588
of 2001 and the present Respondents are original

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defendants in that suit, and the same is posted on

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9th April, 2018 for evidence. VIII) All these
facts have to be answered by the Chairman of
society namely, Ramchandra Kishanrao Dabhadkar @
Dadajwar, who is not party Respondent in this PIL.

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All these facts have been suppressed by the
Petitioner. IX) The Petitioner has not given the
real information about his particulars. X) The
Petitioner is not a social worker.

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8.Learned counsel appearing for Respondent
Nos.5 to 12 further submits that the Desk Officer

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of Revenue and Forest Department, Mantralaya,
Mumbai by its letter No.4288/576/letter No.354/J-7
dated 20th May, 2000 contended that 15 Hectors 43

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R land is sanctioned to the society from Gut
No.116 and 180 situate at Dabhad, while granting

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the said land no public proclamation was
published. Even these Respondents have not been
informed though they are cultivating the said land
since 1980. The Mutation Entry No.906 was recorded

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in favour of Dabhad Audyogik Society in respect
of 7 Hector 17 R. The said mutation entry has been
challenged by 17 persons including Respondent
Nos.2 to 12, who are having the possession over
the disputed land before revenue authorities. The
Additional Divisional Commissioner (Revenue)
Aurangabad has confirmed the order of the
Collector in respect of Mutation Entry No.906.

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9.Learned counsel further submits that the

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Revenue and Forest Department, Mantralaya, Mumbai
laid down the guidelines by its Government
Resolution dated 12th July, 2011 in respect of
regularization of the encroachment of the gayran
land. It is submitted that the said Resolution

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reveals that the old encroachments on the gayran
land have been made by the landless agricultural

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labour and the members of the Scheduled Caste and
Scheduled Tribe, such encroachments shall be
regularized and those have to be excluded from the
removal of encroachment process. Learned counsel

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lastly submitted that there is no merit in the
Public Interest Litigation and therefore the same
deserves to be dismissed.

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10. Learned counsel appearing for the

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Applicants in Civil Application, submits that the
Applicants are belonging from the Scheduled Caste
category and they have been cultivating the land
in question since the year 1980, bearing Gut Nos.
116 and 180, admeasuring 5 Hector 20 R situate at
village Dabhad, Tq-Ardhapur, Dist-Nanded. It is
submitted that both the lands are Government

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Gayran land and are under the control of
Respondent Nos.1 to 4. It is submitted that the
Applicants and other eight persons had filed
R.C.S. No.588/2001 before the learned Civil Judge,

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Senior Division, Nanded for declaration of Patta

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rights on their respective portion and also for
issuance of perpetual injunction. The said suit

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was decreed on 5th January, 2006 in favour of the
encroacher applicants. The Tahsildar, Ardhapur

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pil127.16

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itself submitted the inspection report to Sub
Divisional Officer, Nanded on 2nd August, 2008 by

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stating that there are 20 peoples having
possession on land Gut Nos. 116 and 180 like
Applicants. The Tahsildar further submitted that
the land sanctioned to Cooperative Industrial
Society is not consistent with the area shown in
its order, and while allotting the land to the
society the area in possession of these Applicants
encroachers had not been deducted.

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11.Learned counsel appearing for the

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Applicants further submitted that the original
Petitioner who is Police Patil of village Dabhad
and having well knowledge of the Revenue
Department, had created the revenue record behind
back of the Applicants and had filed the present
Public Interest Litigation. Though the Applicants
are having possession of the land in question, the
Petitioner has not made them as party Respondents
in the Public Interest Litigation. It is submitted

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that Dabhad Co-operative Society and even village
panchayat of Dabhad are also not made party
respondents in the Public Interest Litigation. It
is submitted that different crops are existed in
the land which is in possession of the Applicants.
Without prior show cause notice, the Tahsildar
directly started dispossessing the Applicants from
the said land.

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12.Learned counsel appearing for the

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Applicants further submitted that the Applicants
are the original plaintiffs in R.C.S. No.588 of
2001 and against the Judgment and decree, the
Appeal bearing R.C.A. No.13 of 2006 was dismissed
in default on 7th April, 2008. Thereafter the
State through District Collector, preferred
M.A.R.J.E. No.179 of 2008 which is pending. It is

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submitted that appeal filed by the Applicants is
pending before the learned District Judge, Nanded

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and in view of this position, the Applicants are
having the possession of the land. Therefore,

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learned counsel submits that the Applicants may be
arrayed as party Respondents in the Public
Interest Litigation and they may be allowed to put
forth their claim.

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13.We have heard learned counsel appearing
for the Petitioner, learned Additional Government
Pleader appearing for State and its officials,
learned counsel appearing for Respondent Nos.5 to

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12 and learned counsel appearing for the
Applicants in the Civil Application. With their
able assistance, we have perused the averments in

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the Petition, replies filed by the respective
Respondents and the averments in the Civil
Application.

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14.Upon careful perusal of the reply filed

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on behalf of the Respondent-State, it reveals that
Civil Suit bearing RCS No.588 of 2001 filed by the

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encroachers before the Court of Civil Judge,
Senior Division, Nanded is partly decreed thereby

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declaring that ten out of eighteen encroachers
are entitled to claim Patta right in respect of
their possession. Though appeal filed by the
District Collector, Nanded bearing RCA No.13 of
2006 is dismissed for non prosecution, the State
authorities have filed a Misc. Civil Application
bearing No.179 of 2008 for restoration of the same
and further steps are being taken in that regard.
It is stated on behalf of the Respondent-State
that encroachment made by eight persons on the
said land has been removed and possession of the
vacant land has been handed over by the Circle
Inspector to the Village Gram Panchayat of Dabhad.
Learned Additional Government Pleader appearing
for the State has submitted that further
appropriate steps for removal of remaining
encroachment are being taken up, in accordance
with law.

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15.So far as the grievance raised by the

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Applicants in the Civil Application is concerned,

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it will be open for the Applicants to avail of an
appropriate remedy as available in law for
redressal of their grievances. Further, depending
upon the outcome of the appeal, it will be open
for the Petitioner to avail of an appropriate
remedy as available in law.

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16.Thus, in view of the reply filed by the
State and its officials, in our opinion, no
further orders are necessary in this Public
Interest Litigation. Hence the Public Interest
Litigation stands disposed of.

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17.It is made clear that this Court has not
expressed any opinion on the merits of the
contentions raised in this Petition.

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18.In view of the disposal of the Public
Interest Litigation, the Civil Application also
stands disposed of.

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19.As per the order passed by this Court on
6th December, 2016, the Petitioner has already
deposited an amount of Rs.25,000/- with the
Registry of this Court. We direct the registry to
pay / give an amount of Rs.10,000/- (Rupees Ten
Thousand) in favour of the Government Child
Care / Shelter Home, Government of Maharashtra,
Paithan, Tahsil Paithan, District Aurangabad from
the total amount Rs.25,000/- deposited by the
petitioner, and remaining amount of Rs.15,000/-
(Rupees Fifteen Thousand) be refunded to the
petitioner.

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20.The Public Interest Litigation and Civil
Application stand disposed of, accordingly.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/APR18

Baban Namdeo Suryawanshi and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Baban Namdeo Suryawanshi and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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