Law Web: Whether court should take security from plaintiff prior to grant of status quo in case of removal of encroachment?

This Court has carefully gone through the provisions

of Maharashtra Land Revenue Code like sections 50 to 53. The

provision of section 50 (5) shows that order made by Collector

can be challenged by filing appeal before the appellate authority.

Admittedly, this recourse was not used. The provision of section

50 (6) shows that only when the decision given under these

provisions becomes final, the suit can be filed to establish the

rights in Civil Court and that too, within six months from the date

when the decision of the revenue authority becomes final. It can

be said that in the present matters, there is no right as such to

the plaintiffs to continue the possession, but by making some

contentions, they have remained on the space due to the orders

made by the Courts below. The Trial Court has rightly held that

the provision of section 50 is applicable in such cases. The

record is produced to show that the Collector has delegated the

powers to Tahsildar, both in respect of agricultural lands and non

agricultural lands. Thus, there is no illegality in the notices given

against the plaintiffs and there are further aforesaid

circumstances. In view of the facts and circumstances, this Court

has no hesitation to observe that the Courts below did not take

proper care, they did not take even the security from the

plaintiffs for getting order like statusquo and due to that the

Government could not take the steps like widening of the road in

respect of that portion.

IN THE HIGH COURT AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

SECOND APPEAL NO. 255 OF 2016

RAJENDRA POPAT WAGHMARE AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA THROUGH THE DISTRICT

COLLECTOR

CORAM : T.V. NALAWADE, J.

DATED : 31st March, 2016.

Citation: 2016 (4) MHLJ 475

1. Second Appeal No. 255/2016 is filed against

judgment and decree of Regular Civil Suit No. 9/2012, which was

pending in the Court of Civil Judge, Senior Division, Kopargaon

and also against the judgment and decree of Regular Civil

Appeal No. 96/2013, which was pending in the Court of District

Judge-2, Kopargaon, District Ahmednagar. Regular Civil Suit No.

9/2012 was filed by in all eight traders for relief of declaration

and injunction against present respondents, the State

Government and the Collector. These eight traders challenged

the decision in First Appeal, but out of the eight plaintiffs only

five plaintiffs have challenged the decision of the First Appellate

Court by filing present appeal.

2. Other Second Appeal No. 256/2016 is filed against

judgment and decree of Regular Civil Suit No. 8/2012 and

judgment and decree of Regular Civil Appeal No. 95/2013. The

said suit was filed by eight traders and all the traders have come

to this Court to challenge the decisions of the Courts below. Both

the suits were tried together and the appeals filed against the

decisions are also decided by common judgment. Heard the

learned counsel for appellants.

3. In the two suits, notices given by the Tahsildar under

the provisions of Maharashtra Land Revenue Code for removal of

encroachment made by these traders were challenged. In those

notices, Tahsildar had asked them to remove the encroachment

and had informed that if the steps are not taken for removal, the

State machinery will remove the encroachment. It was

contended by plaintiffs that one Mohammad Ali Sayyed was the

owner of the land involved, Survey No. 336/2A, though the land

was shown in the name of Government. It was contended that

suit was pending between these person and the Local Body and

so, Government cannot say that the plaintiffs have made

encroachment on the land of the Government.

4. The suits were contested by the Government by

contending that separate notices were given to the plaintiffs and

all the plaintiffs ought to have filed separate suits and the suits

in the present form are not tenable. It was contended that the

notices given were legal. It was contended that only to protract

the taking of the possession by the Government of the

Government land, the suit was filed.

5. The main contention of the plaintiffs was that the

Tahsildar has no power to issue notices under section 50 (3) of

the Maharashtra Land Revenue Code and so, the notices are

illegal. Issues were framed on the basis of aforesaid pleadings.

6. Both the sides gave evidence. It is not disputed by

the plaintiffs that they have no right or interest in the property,

on which they have kept their kiosks, the stalls for running

businesses. The Trial Court has considered the provisions of

section 50 (1) and 53 (1) and has held that the Collector has

power to take action for removal of encroachment and for action

under section 50, the Collector is not expected to give notice

before removal of encroachment. The Trial Court has further held

that in view of the documents like Exhs. 85 and 86, the power

was delegated to Tahsildar by the Collector in this regard and so,

it cannot be said that notices issued are illegal. It is also held

that without offering explanation in respect of notices, the

plaintiffs have rushed to the Court and so, the suits were

premature. However, it is further observed that there is nothing

with the plaintiffs to show that they have right to keep the

possession. The kiosks are kept there without taking permission

of Local Body also and from that point also, there is illegality.

7. It was submitted before the Courts below for the

plaintiffs that the plaintiffs had applied to Government for

regularisation of encroachment and as no decision was taken on

their representation, their possession needs to be protected. The

material produced on the record shows that the encroachment is

not on open space, but it is virtually on State highway,

Ahmednagar - Manmad highway. This portion is the area which

cannot be developed in view of the provisions of Highway Act

and no construction can be made on this space. This portion was

immediately required for road widening purpose and so, the

defendants were taking such action. It appears that by filing suit

and due to some orders made by the Courts below, the

Government could not take action and the plaintiffs successfully

remained on the space from 2013 till today. The development

activities halted due to the orders made by the Courts below. It

appears that even after dismissal of the appeal, further order of

statusquo was made by the First Appellate Court.

8. This Court has carefully gone through the provisions

of Maharashtra Land Revenue Code like sections 50 to 53. The

provision of section 50 (5) shows that order made by Collector

can be challenged by filing appeal before the appellate authority.

Admittedly, this recourse was not used. The provision of section

50 (6) shows that only when the decision given under these

provisions becomes final, the suit can be filed to establish the

rights in Civil Court and that too, within six months from the date

when the decision of the revenue authority becomes final. It can