RAVINDRA v. GHUGE & Y. G. KHOBRAGADE, JJ. DATE
Legal Reasoning
*1* 902wp5627a5031a5036o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD902 WRIT PETITION NO. 5627 OF 2024SHABANA HARUN SHAIKH AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITSSECRETARY AND OTHERS...Ms.Pradnya S. Talekar, Advocate i/by Talekar And Associates,Advocate for the Petitioners....ANDWRIT PETITION NO. 5031 OF 2024SHARAD DAGDU MHASKE AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH ITSPRINCIPAL SECRETARY AND OTHERS…Shri Adinath B. Jagtap, Advocate for the Petitioners.... ANDWRIT PETITION NO. 5036 OF 2024ANSAR GANI PATHAN AND OTHERSVERSUSTHE STATE OF MAHARASHTRA THROUGH SECRETARYAND OTHERS…Shri S.A. Patel i/by Shri Pradeep G.Tambade, Advocates for thePetitioners.…ANDWRIT PETITION NO. 5633 OF 2024ARUN GOVIND RAYKAR AND AND OTHERSVERSUS *2* 902wp5627a5031a5036o24THE STATE OF MAHARASHTRA THROUGH ITSPRINCIPAL SECRETARY AND OTHERS…Shri Adinath B. Jagtap, Advocate for the Petitioners.…Shri S.K. Tambe, AGP for the Respondents/ State.Shri S.B. Parnere, Advocate for Respondent Nos.3 to 5 inWP/5031/2024.Shri Prashant R. Nangare, Advocate for Respondent Nos.5 and 6in WP/5036/2024 and for Respondent Nos.7 and 8 inWP/5031/2024.Shri H.F. Pawar, Advocate for Respondent No.9 in WP/5031/24and for Respondent No.7 in WP/5036/24.Shri Shivaji Rambhau Kamble, Block Development Officer,Pathardi, District Ahmednagar, is present in the Court.… CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 13th June, 2024Per Court :-1.We have perused the order passed by this Courtdated 29.01.2024, in a bunch of Writ Petitions [Writ PetitionNo.789/2024 (Babasaheb Fakkad Randhawane and others vs.The State of Maharashtra and others)] and connected group ofcases. In view of the vehement submissions of the learned
Decision
*3* 902wp5627a5031a5036o24Advocates for the Petitioners, we have once again considered thedirections issued below paragraph 4 of the said order, threadbare.Paragraph 4 of the order dated 29.01.2024 reads as under:-“04. In view of the above, all these petitions aredisposed off with the following directions:-(a) Since a regular BDO is now appointed, namelyMr.S.R. Kamble, he would proceed to issuefresh notices to each of the encroachersgranting them seven days’ time to tender theirwritten replies accompanied with alldocuments.(b) He would prepare confidential reports of eachhearing conducted by him in each case, withhis impressions about the documents andsubmit the report in a sealed envelopeto the CEO as directed in the order dated17.08.2023 in the PIL filed by Valmik RajaramGarudkar (Supra).(c) After the hearing of all the encroachers isconcluded and the reports are submitted insealed envelopes to the CEO, the saidAuthority will open the envelopes at the sametime and will be at liberty to follow the dueprocedure laid down in law for taking actionon the said reports.(d) Since we are informed that there are about 401encroachers, we would grant 120 days time forcompletion of this entire exercise. If the BDOor the CEO finds itself short of time, anapplication with proper justification shall betendered to the Court for seeking extension oftime. However, this would not mean that thesaid Authorities would proceed slowly in thesematters.(e) After the final decision is arrived at by theCompetent Authorities, if the encroachers areaggrieved by such decision, they would be at *4* 902wp5627a5031a5036o24liberty to avail of remedies as would bepermissible in law.”2.In the light of the directions reproduced above, werecord the statements of the learned Advocate representing theZilla Parishad as under:-(a)In the light of clause 4(b) of the order dated29.01.2024, the Block Development Officer (BDO) conducted apersonal hearing with regard to each alleged encroacher.(b)Each encroacher, who appeared before the BDO, hassigned on the attendance sheet.(c)There are a few encroachers, who did not appearbefore the BDO despite three different notices.(d)Individual reports were tendered by the BDO to theChief Executive Officer, Zilla Parishad and a specific order hasbeen passed dated 08.05.2024, directing the BDO to proceed toinitiate an action in the light of clause 4(e).(e)Those Petitioners, if any, who did not appear beforethe BDO and if have filed any of these petitions, shall not beprotected by this Court.3.Though the issue of the purported Indira Awas *5* 902wp5627a5031a5036o24Yojana (Gharkul Scheme) is referred to before us, the Petitionersare unable to point out whether, the said scheme was operated bythe Union of India or by the State Government or by any otherstatutory authority or by collaboration of the Union of India andthe State Government like the Pradhanmantri Awas Yojana.4.The Petitioners have been fair in contending thatnone of them are the owners of the shops or tenements presentlyoccupied by them. Their foundation is that the Gram Panchayathas allocated such tenements/shops to them under the GharkulYojana. Being villagers, they are not aware of the sanctity ofsuch scheme or allotments.5.We, therefore, find several disputed issues before us.It does not call for any debate that a person can claim a right tocontinue in possession of the property, if such a right isenforceable and established. Several disputed issues before uswould virtually invite our jurisdiction to embark on an exerciseto trace out, by collecting evidence, as to whether, any of thesePetitioners have any right or title over the properties, which arepresently occupied by them. It is in this backdrop that we had *6* 902wp5627a5031a5036o24observed in paragraph 4(e) reproduced above that, if theencroachers are aggrieved by the decision of the Zilla Parishad,they would be at liberty to avail of the remedies as arepermissible in law.6.In view of the above and in the facts andcircumstances before us, the Petitioners have approached thisCourt. We are of the view that such disputed issues cannot begone into and the Petitioners would have to approach either theCivil Court or abide by the notices issued to them. We areinformed that the learned Vacation Court has passed an order on22.05.2024, in Writ Petition Nos.5036/2024 and 5031/2024,wherein, it has been recorded that the impugned notices wouldnot be implemented till today.7.Since the issue of residences and/or commercialshops of these Petitioners is involved and as they are occupyingsuch tenements/ commercial shops, it is out of sympathy that weare protecting them for some time, in order to enable them toapproach the Civil Court. *7* 902wp5627a5031a5036o248.In view of the above, these Writ Petitions aredisposed off with the following directions:-(a)The Petitioners before us would prefer theirindividual suits before the appropriate Civil Court, on or before20.06.2024.(b)The concerned Zilla Parishad and the GramPanchayat, which are likely to be the Defendants in the said suitproceedings, would produce relevant records before the CivilCourt for the purpose of enabling the Civil Court to decide theinterim applications/ Exhibit-5 applications, as the case may be.(c)The statement is made by the commercial shopencroachers that they would strictly maintain the originallyallotted (by the Gram Panchayat) size of their commercial shopsand beyond the originally allotted size of the shops, they wouldthemselves demolish/remove the structures and restore the shopsto their original size, immediately. This statement shall beimplemented and shall not be the subject matter of adjudicationbefore the Civil Court.(d)We expect the Zilla Parishad and the GramPanchayat to file their Written Statements in the said suits, on orbefore 28.06.2024. *8* 902wp5627a5031a5036o24(e)Since the District Collector would be the Defendantin the said suits, a statement is made by the learned AGP, oninstructions, that notice under Section 80 of the Code of CivilProcedure, would be waived. (f)The parties to the suit proceedings shall advancetheir oral submissions on the temporary/ interim reliefapplications, on or before 05.07.2024.(g)The Trial Court would pass an order on thetemporary/ interim relief applications, on it’s merits, withoutbeing influenced by this order of protection (which is passedpurely on sympathy), on or before 15.07.2024.(h)Those encroachers, who do not file their civil suitson or before 20.06.2024, shall not be protected by this order andthe Authorities would be at liberty to initiate action for removalof encroachments, thereafter. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)