1. Encroachment on government land — Demand for damage charges — Petition for regularization and quashing of demand. (Para 1 , 3 )
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1991 Supreme(SC) 540
SUPREME COURT OF INDIA
J.S.Verma : L.M.Sharma
Apar Private Limited
Versus
Union Of India
Case No. : 7670 of 1990
Date of Decision : 10/4/91
A party is bound by concessions made by their counsel in a lower court unless challenged via settled legal procedure. Furthermore, improper conduct of a petitioner, such as profiting from encroached government land, justifies the denial of special leave under Article 136 of the Constitution.
Headnote:(A) Constitution of India - Article 136 - Special Leave Petition - Grant of leave - Conduct of the petitioner - Where the conduct of the petitioner is found to be improper, including attempts to deny concessions made by counsel in the lower court and profiting from the sale of encroached government land, the court may decline to grant special leave. (Paras 6, 7, 8)
(B) Land Law - Encroachment - Determination of area - Once the area of encroachment is determined by a competent authority and no statutory remedy is pursued, the finding becomes conclusive. In the absence of proof of restoration of possession, there is a presumption of continuity of possession. (Paras 3, 5)
(C) Civil Procedure - Concessions by Counsel - A party is bound by the concessions made by their counsel in the lower court unless the challenge to such concessions is made in the prescribed legal manner. (Para 7)
Facts of the case:
The petitioners purchased a specific area of land but occupied an excess area. A competent authority determined the extent of encroachment on government land, and no appeal was filed against this order. Subsequently, a demand for damage charges was made. The petitioners challenged the demand, claiming the area of encroachment was less or required fresh determination, and sought regularization of the land. It was alleged that the petitioners had sold the encroached land to third parties for profit.
Findings of Court:
The court found that the order determining the encroachment was a concluded finding of fact. There was a presumption of continuity of possession since no restoration of land was proven. Furthermore, the petitioners were bound by the concessions made by their counsel in the High Court as they failed to challenge them through the proper legal procedure.
Issues: Whether the area of encroachment required fresh determination before recovering damage charges, and whether the petitioners were entitled to special leave under Article 136 of the Constitution given their conduct.
Ratio Decidendi: The court held that a final determination of encroachment by a competent authority is binding unless challenged. The presumption of continuity of possession applies unless restoration is proved. Most importantly, the court ruled that the conduct of a petitioner, including the failure to follow the settled practice for assailing counsel's concessions and profiting from illegal encroachment, is sufficient ground to decline the exercise of discretionary jurisdiction under Article 136.
Result: Special leave petition is dismissed.
Legal Category Hierarchy
Table of Contents
2. Challenge to damage charges based on the need for fresh encroachment determination and violation of principles of natural justice. (Para 4 )
3. Presumption of continuity of possession applies absent proof of restoration; concessions made by counsel in lower courts are binding unless challenged by settled procedure. (Para 5 , 7 )
4. Unscrupulous conduct of a petitioner is sufficient ground to decline special leave under Article 136 of the Constitution. (Para 8 )
5. Special leave petition dismissed. (Para 8 )
6. What is the legal effect of statements or actions taken during settlement negotiations during the pendency of a petition?
Negotiations conducted to explore the possibility of an amicable settlement are without prejudice to the parties' rights and have no bearing on the decision on merits if no settlement is reached. (Para 2 )
7. How is the extent of continuing encroachment determined when a prior order has fixed the area?
There is a presumption of continuity of possession; unless the party proves restoration of possession of any part of the encroached area, the previously determined area is taken as a concluded finding of fact. (Para 5 )
8. Are petitioners bound by concessions made by their counsel in a lower court?
Yes, concessions made by counsel are binding unless the party adopts the settled legal procedure to challenge those concessions, such as filing a specific affidavit in the court where the concession was recorded. (Para 7 )
9. Can a court refuse special leave under Article 136 based solely on the conduct of the petitioner?
Yes, the court may decline the grant of special leave under Article 136 of the Constitution based on the conduct of the petitioners, independent of the merits of the case. (Para 8 )
(1) THIS petition is for grant of special leave to appeal against the judgment dated 25/04/1990 of the Bombay High court dismissing the petitioners Writ Petition No. 1941 of 1979. The petitioners prayer in the writ petition was to quash the demand made from the petitioners by letter dated 21/06/1979 (Ex. 8 of damage charges specified therein for the encroachment made by the petitioners; and to regularise the excess land found in petitioners occupation. The High court found that no case was made out for grant of any relief to the petitioners and while rejecting the writ petition, it also made critical observations about the petitioners conduct throughout.
(2) THE matter was heard on several occasions on different dates and every aspect pointed out on behalf of the petitioners has been consider- ed. At one stage, both sides put forward a suggestion that opportunity be given to the parties to arrive at an amicable settlement. Accordingly, this case was adjourned on more than one occasion with certain interim directions as suggested by the parties. However, it was finally indicated that no settlement could be reached and on 20/08/1991, it was stated by learned counsel for the State of Maharashtra that the State Government had discovered some disturbing facts indicating collusion of some of its employees with the petitioners in an attempt to give some undue benefit to the petitioners which was under investigation. It was urged that certain measurements of the encroachment by the petitioners made during the pendency of this petition were suspect for this reason and the State government was not willing to proceed on that basis and make any settlement in the matter. Obviously what transpired between the parties for the purpose of reaching a settlement during the pendency of this petition can have no bearing upon the decision on merits when no settlement has been reached and the State government has clearly said so. It is needless to add that everything said or done by either party while exploring the possibility of settlement was without prejudice to their rights and has to be ignored when the decision is to be on merits. The interim orders passed earlier in the present case were also interim in nature without deciding anything and cannot be relied upon by the petitioners in support of this special leave petition. We, therefore, refrain from making any reference to any matter relating to the negotia- tions for a settlement between the parties during the pendency of this petition, in spite of the attempt made by learned counsel for the petitioners to refer to them for supporting the petitioners contention. This is more so on account of the State governments assertion of a sur- reptitious attempt of its employees to give undue beneFit to the a petitioners against whom action is contemplated.
(3) THERE are only a few facts which are material for the decision on merits. The petitioners purchased some land near Vithalwadi Railway Station at Ulhasnagar in 1957, the area of which, according to the deed of conveyance read with the prior agreement of sale was 39,200 sq. yds. The petitioners undoubtedly occupied land in excess of 39,200 sq. yds. which alone was purchased by them. The area of encroachment by the petitioners was determined at 25,915 sq. yds. by order dated 26/05/1967 passed by the Managing Officer and Administrator, Ulhasnagar Township. By the same order a direction was given for removal of the encroachment over the government land. Admittedly, no appeal or any other statutory remedy was resorted to against this order by the petitioners. Accordingly, encroachment over 25,915 sq. yds. government land by the petitioners in excess of the area 39,200 sq. yds. purchased by them came to be finally determined in this manner. Learned counsel for the petitioners tried to contend that the area of encroachment is less than 25,915 sq. yds. and he attempted to rely on some measurements of the encroachment made during the
