Dismissed

Vasant Devrao Raibhole v. the State of Maharashtra and Others

Bombay HC28 Jun 2021WP/4081/2020

Case brief

AI extract

What is this about?

A petitioner challenging eviction from transport canteen premises sued on grounds of a circular extending licence periods and disputing structural instability of the bus stand. The court rejected claims that the BOT scheme construction afforded protection and dismissed the writ petition.

What did the court decide?

Petition dismissed with no order as to costs. Possession of premises was not to be restored.

Vasant Devrao Raibhole Vs the State of Maharashtra and… — Property and Title | Bombay HC (2021)

¶1

(1) WP No.4081/2020

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

¶3

WRIT PETITION NO. 4081 of 2020

¶4

Vasant Devrao Raibhole Age : 52 years, occ : business R/o Mahatma Phule Nagar, Gangakhed, Taluka Gangakhed, District Parbhani.

¶5

Petitioner

¶6

Versus

¶7

The State of Maharashtra Through its Principal Secretary, State Road and Transport Department, Mantralaya, Mumbai 32.

¶8

The General Manager, Central Office, Maharashtra Vahatuk Bhavan, Dr. Anandrao Nair Marg, Mumbai 400008.

¶9

The Divisional Controller Divisional Office, Maharashtra State Road Transport Corporation, Division Parbhani, Taluka and District Parbhani

¶10

The Depot Manager Maharashtra State Road Transport Corporation, Bus Stand Gangakhed, District Parbhani. Respondents.

¶11

Mr. J.M. Murkute, Advocate for the petitioner. Mr. Mr. S.B. Yawalkar, A.G.P. for respondent No.1. Mr. A.B. Dhongde, Advocate for respondent Nos. 3 and 4.

¶12

(2) WP No.4081/2020

¶13

CORAM : RAVINDRA V. GHUGE & AVINASH G. GHAROTE, JJ.

¶14

Judgment Reserved on : 23^rd June 2021. Judgment pronounced on : 28^th June 2021.

¶15

JUDGMENT (Per Avinash G. Gharote, J.) :

¶16

The petitioner who was a licencee of respondent No. 1 through respondent Nos. 3 and 4, under an agreement of licence dated 13.10.2020, in respect of Canteen premises at Bus Stand, Gangakhed, District Parbhani, for a period of 9 years, was by a notice dated 10.03.2012, asked to vacate the premises and hand over possession, as he had made encroachment on the adjacent land and thus violated the terms of the licence. He had filed R.C.S. No. 297/2017 before the Civil Judge, Senior Division, Gangakhed seeking permanent injunction, in which initially temporary injunction was granted, however, later on the suit came to be dismissed under the judgment and decree dated 30.12.2019, which was not challenged by the petitioner, thus rendering the judgment final, consequent to which a notice dated 06.01.2020 was received by the petitioner asking him to vacate and deliver vacant possession, as even otherwise the licence period in the meantime had expired by the time the notice dated 06.01.2020 was received.

¶17

(3) WP No.4081/2020

¶18

It is an admitted position that under the panchnama dated 08.01.2020, possession of the licenced premises, was taken by the respondent Nos. 3 and 4.

¶19

Mr. Murkute, learned Counsel for the petitioner does not dispute the above position, but contends that under a communication dated 20.09.2019, issued by respondent No.2, it had been resolved that except for establishments given on licence for sugarcane dispensing unit, for all other commercial establishments, the licence period be extended for a further period of 14 years, and the petitioner being the licencee as on the date of issuance of the circular, was entitled to its benefit and thus consequent restoration of possessin of the licenced premises. He contends that though the document dated 13.10.2020, was termed as a licence, it was in fact a lease.

¶20

Mr. A.B. Dhongde, learned counsel for the respondent

¶21

Nos.3 and 4 opposes the contention. He submits that the said Circular is not applicable to the case of the petitioner. He invites our attention to the communication dated 15.09.2020, issued by respondent No. 3 wherein, in reference to the structural audit report dated 27.06.2020, by Varun Deogaonkar, Structural Auditor, it was stated that the entire construction of the Gangakhed bus stand had

¶22

(4) WP No.4081/2020

¶23

become dilapidated and was in dangerous condition and thus the use of the bus stand was directed to be stopped with immediate effect. It was also directed that as a temporary measure, the Rural Bus Stand be used. It was also stated that all the commercial establishments in the bus stand be closed and shifted to the depot.

¶24

Learned Counsel further invites our attention to the communication dated 20.09.2019 of the MSRTC and specifically to clause 7 thereof which states that in respect of those bus stands, which were being developed with private participation under BOT scheme, action as per clause 5 (d) 4, of the General Permanent Order No. 1999 dated 03.03.2008, was to be taken which meant that the old licencees were not entitled to be rehabilitated/accommodated in the new premises. He submits that the Gangakhed bus stand was being developed on a private participation on BOT basis and therefore the petitioner was not entitled to the benefit of the communication dated 20.09.2019 and the resolution as mentioned therein dated 30.08.2019.

¶25

Learned Counsel submits that even otherwise the petitioner, had encroached upon the land in excess of what was granted to him on licence for which he was liable to pay damages to the tune of Rs. 1,37,500/- out of which only Rs. 50,221/- was

¶26

(5) WP No.4081/2020

¶27

deposited by him and was in arrears of the balance sum of Rs.87,279/- which indicated an admission of encroachment, and thus a violation of the terms of the licence. He submits that there was no merit in the petition and the same was thus liable to be dismissed.

¶28

Mr. Murkute, learned counsel for the petitioner, in rebuttal, submits that the petitioner was ready to pay the balance damages. He does not dispute that the bus stand at Gangakhed is being developed on private participation basis. He however contends that the petitioner is entitled to be adjusted in the new construction which would be made and till such time accommodated in the depot as other licencees were being done. He disputes that the present building housing the bus stand was structurally unstable.

¶29

We have given our anxious consideration to the rival contention; the communication dated 20.09.2019; 15.09.2020 and the model standing orders. It is not in dispute that the term of licence of the petitioner stood expired on 12.10.2019 on completion of the period; his suit R.C.S. No. 297/2017 came to be dismissed on 31.12.201; notice was issued to him on 06.01.2020 and possession

¶30

was taken on 08.01.2020. The petition came to be filed on 11.03.2020, on which date admittedly neither was the petitioner a

¶31

(6) WP No.4081/2020

¶32

licencee nor was in possession. As regards the plea that the agreement dated 13.10.2010 is a licence is concerned, that need not detain us longer, as a bare reading of the agreement, which is styled as an agreement of licence, indicates that it is a licence and not a lease as no right has been conferred upon the petitioner. A mere permission is granted to use the premises as a canteen for the period and on the terms stated therein and nothing else. The submission of learned counsel Mr. Murkute for the petitioner is thus rejected.

¶33

In so far as the structural instability of the building housing the present bus stand is concerned, the communication dated 15.09.2020, basis its stand upon the report dated 27.06.2020, issued by the Structural Auditor Mr. Varun Deogaonkar. Though Mr. Murkute, learned Counsel for the petitioner disputes it, nothing contrary has been brought on record to demonstrate otherwise. The Court is not an expert and cannot substitute its view in place of an expert and as the respondents have chosen to place reliance upon the structural audit report, the same will have to be accepted.

¶34

The terms of the resolution dated 30.08.2019 thus assume importance. Clause 7 of the resolution dated 30.08.2019 as contained in the communication dated 20.09.2010 being

¶35

(7) WP No.4081/2020

¶36

material, is reproduced as under :

¶37

7- T;k clLFkkudkapk fodkl lkoZtfud]pjjtxh Hkkxhnkjh rRokoj gksr

¶38

vkgs] R;k clLFkkudkaojhy vkLFkkiuk/kkjdkackcr lk-LFkk-vk-vk-dz-

¶39

1119@2008 e/khy rjrwn dz- 5 ¼M½ 4 izek.ks dk;Zokgh dj.;kl ek-

¶40

lapkyd eaMGkus eatqjh fnyh-

¶41

As clause 7 above refers to term 5 (d) 4 of the General permanent order dated 03.03.2008, it is also reproduced as under :-

¶42

5 ¼M½ 4 & tqU;k clLFkkudkrwu jk-i- egkeaMGkus ufou clLFkkudkP;k bekjrhr okf.kT; vkLFkkiukaps LFkykarj dsY;kl & tqU;k ijokuk/kkjdkP;k ckcrhr vuqlwph 3 izek.ks ijokuk’kqYdkph dk;Zokgh dj.;kar ;sbZyrFkkih] gh lqfo/kk cka/kk] okijk o gLrkarjhr djk ¼ch-vks-Vh-½ ;kstusvarxZr cka/kysY;k clLFkkudkyk ykxw jkg.kkj ukgh- ch-vks-Vh- ;kstuhrhy clLFkkudkojhy iqohZP;k ijokuk/kkjdkauk cka/kdke lq: gks.;kiwohZ vkLFkkiuapk rkck jk-i= egkeaMGkyk ns.ks vko’;d jkghy-

¶43

A plain reading of term 5 (d) 4 of the General permanent order dated 03.03.2008, reveals that the facility of being accommodated in the new bus stand, is not available to new bus stands being constructed with private participation under BOT scheme. It is undisputed that the proposed new building of the Gangakhed bus stand is to be constructed with private participation

¶44

(8) WP No.4081/2020

¶45

under the BOT scheme.

¶46

It is thus apparent that the Resolution dated 30.08.2019

¶47

does not come to the aid of the petitioner. This being the position, we do not find any merit in the petition and the same is dismissed

¶48

with no order as to costs.

¶49

(AVINASH G. GHAROTE) (RAVINDRA V. GHUGE, J.)

¶50

VD-Dhirde.

Vasant Devrao Raibhole v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Vasant Devrao Raibhole 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

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Hanumant Uttamrao Jadhav and Others Vs the State of Maharashtra and Others

Somnath Vishnupant Thone and Others Vs the State of Maharashtra and Others

Khandappa Kalappa Kantekure and Others Vs the State of Maharashtra and Others

Sachin Ramdas Wagh Vs the State of Maharashtra and Others

The Exe. Director, Tapi Pathbandhare Vikas Mahamandal, Jalgaon and Others Vs Ravindrasing Bhagwansing Deshmukh

The Exe. Director, Tapi Pathbandhare Vikas Mahamandal, Jalgaon and Others Vs Virendrasing Yogendrasing Deshmukh