High Court · 2023
Legal Reasoning
1 18.WP-12846-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 12846 OF 2023GRAMPANCHAYAT GONDEGAON THROUGH ITS SARPANCH SAGAR ANNASAHEB BADEVERSUSRAMESH DAULAT PHOPASE AND OTHERS … Advocate for Petitioner : Mr. D.A Bide and Mr.Pradeep Gurunath Tambade Advocate for Respondents : Adv. Joyebi Shaikh… CORAM : SHAILESH P. BRAHME, J. DATE : 18th DECEMBER 2023. Per Court :.Heard the learned Counsel for litigating sides. Heard finally atthe admission stage.2.The petitioner is a village panchayat, who is questioning judgmentand order dated 09.05.2023 passed by the District Judge-2, Shrirampur,District Ahmednagar in MCA No.6/2023, reversing the order passedbelow Exhibit-5 in RCS No.50/2023.3.The respondents are original plaintiffs who have filed RCSNo.50/2023 for declaration, challenging the notices issued by thepetitioner, village panchayat for removal of encroachment. Alongwithplaint application (Exhibit-5) is filed for temporary injunction. Thepetitioner contested suit as well as application Exhibit-5. The trial Courtby order 10.04.2023 rejected application (Exhibit-5). Being aggrieved,
Legal Reasoning
2 18.WP-12846-2023.doc MCA No.6/2023 was filed by the respondents, which was allowed bythe impugned judgment and order, restraining the petitioner frominterfering with possession of the respondents over the suit shop.4.The learned Counsel for the petitioner submits that the impugnedjudgment and order is against the principles laid down in the matter ofJagpal Singh and Others Vs. State of Punjab and Others, reported(2011) 11 SCC 396. The respondents are the encroachers and do nothave any documents to show their title over the land occupied by them.Prima facie, there is no case in their favour despite that the LowerAppellate Court granted injunction. Learned Counsel submits that thereis an apparent error in exercise of the jurisdiction by the LowerAppellate Court because the evidence is appreciated in an appeal underOrder 43 and almost mini trial is held by the Lower Appellate Court.5.The learned Counsel for the petitioner submits that though PublicInterest Litigation is pending, but there is nothing on record to showthat any protection is granted to the respondents/plaintiffs. He hasplaced on record the orders passed on 11.09.2022 and 03.05.2023 todemonstrate that there is no protection. The land gut no.16 upon whichthe respondents are conducting the business illegally though consideredto be the land of the government, there is apparent encroachment. 6.Per-contra, learned Counsel for the respondents supportsimpugned judgment and order. According to him, by order passed on06.10.2022 in PIL No.2/2022, there is adequate protection and no 3 18.WP-12846-2023.doc coercive action is contemplated by the petitioner authorities. He wouldsubmit that the respondents are in possession since last more than 10years and paying the taxes. Their occupation and the possession isdeemed to have been regularized. In PIL, a statement is made by thelearned AGP to not to take adverse action against the encroachers.Hence the impugned action is against the spirit of the orders. Lastly hewould submit that no coercive action can be taken when the substantivesuit is pending. Otherwise suit would become infrucutous.7.I have considered rival submissions of the parties. Therespondents are occupant of land gut no.16. They have filed suit fordeclaration, challenging various notices issued by the petitioner forremoval of encroachment and for injunction. I have considered variousorders passed in suo moto PIL No.2/2022 by the Principal Seat. Orderdated 06.10.2022 shows that there shall not be further regularization ofany encroachment by any authority or officer of the Government, untilthe further orders of this Court except in the manner directed by theSupreme Court in the matter of Jagpal Singh (supra). This Court doesnot find that any protection is given to the encroachers. Further orderdated 15.09.2022 and dated 03.05.2023 do not show any such aprotection.8.The learned Counsel for the respondents during the course ofhearing, has tendered orders dated 20.01.2023 and 17.02.2023 to showthat there is a protection. Order dated 20.01.2023 shows that thestatement of learned AGP made in context of removal of encroachment 4 18.WP-12846-2023.doc of Palghar. Both these orders do not show that the learned GovernmentPleader made any statement for not taking any action for removal ofencroachment from the Government land. Therefore, I am of theconsidered view that there is no protection to the encroachers. On thecontrary, the tenore of the orders placed on record show that therewould be read map for authorities to remove the encroachment.9.The law laid down by Supreme Court in the matter of JagpalSingh (supra) is very clear which is still operating the field. The samehas been consistently followed. The protection granted by the LowerAppellate Court is against paragraph no. 22 which is as follows :22.“Before parting with this case we give directions to all the StateGovernments in the country that they should prepare schemes for evictionof illegal / unauthorized occupants of Gram Sabha / Gram Panchayat /Poramboke/Shamlat land and these must be restored to the GramSabha/Gram Panchayat for the common use of villagers of the village. Forthis purpose the Chief Secretaries of all State Governments/UnionTerritories in India are directed to do the needful, taking the help of othersenior officers of the Governments. The said scheme should provide for thespeedy eviction of such illegal occupant, after giving him a show causenotice and a brief hearing. Long duration of such illegal occupation orhuge expenditure in making constructions thereon or political connectionsmust not be treated as a justification for condoning this illegal act or forregularizing the illegal possession. Regularization should only be permittedin exceptional cases e.g. where lease has been granted under someGovernment notification to landless labourers or members of ScheduledCastes/Scheduled Tribes, or where there is already a school, dispensary orother public utility on the land.” 5 18.WP-12846-2023.doc 10.The scope of the jurisdiction is laid down by the Supreme Court inthe matter of Wander Ltd. Vs. Antox India P. Ltd. Paragraph No.14 ofthe said judgment as follows :14.“The appeals before the Division Bench were against the exercise ofdiscretion by the Single Judge. In such appeals, the Appellate Court willnot interfere with the exercise of discretion of the court of first instance andsubstitute its own discretion except where the discretion has been shown tohave been exercised arbitrarily, or capriciously or perversely or where thecourt had ignored the settled principles of law regulating grant or refusalof interlocutory injunctions. An appeal against exercise of discretion is saidto be an appeal on principle. Appellate Court will not reassess the materialand seek to reach a conclusion different from the one reached by the courtbelow if the one reached by the court was reasonably possible on thematerial. The appellate court would normally not be justified in interferingwith the exercise of discretion under appeal solely on the ground that if ithad considered the matter at the trial stage it would have come to acontrary conclusion. If the discretion has been exercised by the Trial Courtreasonably and in a judicial manner the fact that the appellate court wouldhave taken a different view may not justify interference with the trial court'sexercise of discretion. After referring to these principles Gajendragadkar,J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : These principles are well established, but as has been observed byViscount Simon in Charles Osention & Co. v. Johnston the law as to thereversal by a court of appeal of an order made by a judge below in theexercise of his discretion is well established, and any difficulty that arises isdue only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle. ” 11.When the impugned order is tested to the touchstone of the lawlaid down by the Supreme Court stated above, the Lower Appellate 6 18.WP-12846-2023.doc Court indulged into appreciation of evidence. The Lower AppellateCourt arrived at another view possible after considering the entireevidence. This is not a scope of jurisdiction of the Lower AppellateCourt while dealing with the matter under Order 43 of CPC.12.The findings recorded by the Lower Appellate Court in paragraphno.19 and 20 are unsustainable because those conclusions cannot bearrived at the interlocutory stage. A full-fledged trial is required to beundertaken for the appreciation of the evidence.13.Prima facie I do not find any documentary evidence in favour ofthe respondents to protect their possession. The trial Court has rightlyrejected their application (exhibit-5). There is no perversity, patentillegality or any error of jurisdiction committed by the trial Court.Therefore, interference by the Lower Appellate Court by impugnedorder is unwarranted.14.The submissions of learned Counsel for the respondents that theyhave possession over 10 years and their possession has been regularizedby the Competent Authority have not been substantiated. Accepting thetaxes cannot be said to be regularization. Under these facts andcircumstances, impugned judgment and order is found to beunsustainable and perverse. I therefore, pass following order :ORDER(i)The impugned judgment and order dated 09.05.2023 passed bythe District Judge-2, Shrirampur, District Ahmednagar in MCA 7 18.WP-12846-2023.doc No.6/2023, is quashed and set aside.(ii)The order passed by the trial Court below exhibit-5 is restored.(iii)The writ petition is allowed in above terms. [ SHAILESH P. BRAHME, J.]Najeeb.