High Court

Legal Reasoning

{1} SA 39.25 F.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 39 OF 2025Ravindra Ramchandra Garela,Age; 38 years, Occ; Business,R/o: Main Road, Balwant Bhuvan, Shrirampur, District; Ahmednagar....Appellant.VERSUS1.The Collector,Collector Office, Ahamadnagar.2.The Chief Executive Officer,Shrirampur Nagar Parishad,Shrirampur, District; Ahmednagar.3.Jagdish Tukaram Thete,Age; 58 years, Occ; Agril,R/o; Near Thatte Ground,Shrirampur, District; Ahmednagar. ...Respondents……………….Mr. P. R. Katneshwarkar, (Senior Advocate i/b Mr. S.S. Wagh, Advocate for AppellantMr.V.R. Dhorde, Advocate for Respondent No. 2,Mr. V.S. Badakh, AGP for respondent No. 1/State.………………. CORAM : S.G. CHAPALGAONKAR, J. DATE : 3rd FEBRUARY, 2025. O R D E R :-1.Appellant/original plaintiff filed the Second Appeal {2} SA 39.25 F.odtaggrieved by judgment and decree dated 06.11.2024 passed in RegularCivil Appeal No.40/2023 by learned District Judge, Shrirampur, DistrictAhmednagar, thereby upholding judgment and decree dated 03.05.2023by Civil Judge Senior Division, Shrirampur in Regular Civil SuitNo.270/2017 (For sake of convenience, parties are referred by theiroriginal status).2.The appellant/plaintiff filed suit seeking decree of perpetualinjunction against defendants contending that he is possessing a shopsituated on Eastern side of main road within municipal limits ofShrirampur. Plaintiff is running his business in the said shop for morethan 20 years. The plaintiff has shop license. For his business, heobtained electric connection with consent of municipal council. Plaintiffcategorically state that, he constructed the shop in the open space ofGujrati Samaj, but some portion of it falls within boundaries of publicroad on Western side. The Municipal Council issued illegal noticedirecting removal of encroachment and Officers are now threatening theplaintiff to remove construction by force. The action of the respondent isdiscriminatory. The plaintiff is entitled to enjoy possession over suit shopunless evicted by following due process of law.3.The respondent No.2/Municipal Council refuted claim of theplaintiff and asserted that the construction made by plaintiff byencroaching on public road in unauthorized manner, which is creatingobstacle in development of Shrirampur City. The plaintiff is alreadyserved with notice for removal of the encroachment within authority ofthe Municipal Council, as such, due process of law is undertaken. {3} SA 39.25 F.odt4.The Trial Court framed issues, recorded evidence of theparties and relying upon the Map of Town Planning Authority dismissedthe suit. Aggrieved plaintiff filed appeal before District Court, which hasbeen dismissed confirming the decree of Trial Court.5.Mr. Katneshwarkar, learned Senior Advocate appearing forthe appellant/plaintiff contends that plaintiff is in peaceful possession ofproperty for so many years. The respondent authorities cannotdispossess him without following due process of law. He would submitthat the Municipal Council has given no objection to the plaintiff whileobtaining electricity connection and they are also collecting the taxes.The Municipal Council is aware about long standing peaceful possessionof the plaintiff and the fact that he is running business, which is the onlysource of livelihood. He would further submit that unless the competentauthority measures land and evidence as to the area encroached uponpublic place is brought on record, the defendant cannot be permitted toevict plaintiff using the authority of law. 6.Per contra, Mr. V. R. Dhorde, learned Advocate appearing forrespondent No.2/Municipal Council submits that the Courts below haverecorded concurrent finding of fact that plaintiff is encroacher on publicstreet and does not possess any right to continue over the suit property.The Municipal Council is under statutory obligation to removeunauthorized encroachments on public road, consequently, notice wasserved upon plaintiff. Therefore, he urges to dismiss the appeal.7.Per contra, Mr. V. R. Dhorde, learned Advocate appearing forrespondent No.2/Municipal Council submits that Courts below have {4} SA 39.25 F.odtrecorded concurrent finding of fact that plaintiff is encroacher on publicstreet and does not possess legal right to continue over the suit property.The Municipal Council is under statutory obligation to removeunauthorized encroachments on public road, consequently, notice wasserved upon plaintiff. Therefore, he urges to dismiss the appeal. 8.Having considered submissions advanced, it can be observedthat plaintiff claims that major portion of his shop is on land owned byGujrati Samaj and some portion of shop is encroachment on public street.However, he could not place on record document depicting ownership ofGujrati Samaj or his permissive possession under the license of its owner.The plaintiff examined himself before trial Court but could not bring onrecord documentary evidence to suggest that his shop is constructed onland owned by Gujrati Samaj or Gujrati Samaj holds ownership of landadjacent to public street. Eventually, plaintiff’s case is withoutfoundation. Although, plaintiff contends that the construction has beenraised with consent and knowledge of the Municipal Council, nodocumentary evidence in support of such contention is placed on record.Only because applicant managed to get electricity connection, hispossession cannot be rendered legal.9.Admittedly, Shop Act license would not constitute evidenceas to authorized occupation of land or plot. The contents of licensesuggest that it cannot be treated as evidence as to right over landbeneath tenement or establishment. In fact, the plaintiff himselfadmitted that he is encroacher over property of the Municipal Council. {5} SA 39.25 F.odt10.If the evidence adduced by defendant/Municipal Council isseen, particularly copy of development plan, area encroached byplaintiff’s shop is specifically shown in red mark. it has presumption ofcorrectness.11.In light of observations recorded by Courts below, there isno reason to accede to the contentions of the plaintiffs. Both courts haverecorded concurrent finding that plaintiff’s shop is encroachment onpublic road and he has no right to continue his unauthorized possession.The public authority like Municipal Council is certainly under obligationto remove unauthorized structures on the public road and implement thedevelopment plan. It is not the case of plaintiff that he holds title overthe land. There is nothing on record to hold that otherwise plaintiff isentitled to continue over suit property. In result, no substantial questionof law arise for consideration in appeal.12.At this stage, Mr. Katneshwarkar, learned Senior Advocate,on instructions, submits that applicant is submitting an undertaking onaffidavit to this Court that he will remove shops/structures over the suitproperties as specified in the plaint within period of 3 months from todayand hand over peaceful and vacant possession to the Municipal Council. 13.He tendered such undertaking affidavit on record of thisCourt which is duly verified before Notary. Mr. Katneshwarkar oninstructions from the appellant, who is personally present in the Courtsubmits that in furtherance of undertaking, appellant would vacatepremises, remove structures at their own cost and would not claim any {6} SA 39.25 F.odtright over the suit property. The written undertaking as well asstatement made by learned Senior Advocate on specific instructions fromthe appellant is accepted as undertaking to this Court. In result, theSecond Appeal is dismissed with costs.14.However, the appellant shall be entitled to continue hispossession over the suit property up to maximum period of three monthsfrom today on undertaking that he removes shop/structure over the suitproperty as described in the plaint on his own expenses and hand overvacant peaceful possession to the Municipal Council, before expiry ofthree months.15.Second appeal stands disposed of accordingly. Civilapplication, if any, stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-