City and Industrial Development Corporation, Aurangabad vs Anwar Khan S/o Rahim Khan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 178

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
MANGESH S. PATIL, J.
The City and Industrial Development Corporation, Aurangabad – Appellant
Versus
Anwar Khan S/o Rahim Khan – Respondent
Second Appeal Nos. 248, 249 of 2019, Civil Application Nos. 8175, 8176, 11881 of 2019, 9565, 10433, 10434 of 2021
Decided On : 31-01-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr. A.S. Bajaj.
For the Respondents: Mr. P.S. Paranjape, Mr. A.S. Kharosekar, Mr. B.V. Virdhe, Mr. Girish Awale.

Headnote:
Encroachment - Land Dispute - Maharashtra Regional and Town Planning Act, 1966 - Section 40, Land Acquisition Act, 1894 - Section 18 - [MANGESH S. PATIL, J.] - [M.R.T.P. Act, 1966, Land Dispute] - [Section 40 of M.R.T.P. Act, 1966, Section 18 of Land Acquisition Act, 1894] - The court discussed the encroachment dispute and the measurement carried out by the witness, highlighting the lack of demarcation and permanent boundary marks. The court emphasized the importance of concrete and reliable proof regarding encroachment, especially when dealing with a statutory body. The judgment also addressed the maintainability of the suit under the M.R.T.P. Act, emphasizing the need to consider the special provisions protecting the interests of the special planning authority. The court allowed the appeals, quashed the judgments and decree, and remanded the matter to the trial court for a fresh decision with additional issues and an opportunity for cross-examination of the witness.
Fact of the Case:

The respondents claimed ownership of land and alleged encroachment by the appellant. The trial court partially decreed the suit, and both parties appealed. The appellate court dismissed the appellant's appeal and allowed the respondents' appeal, modifying the decree to direct delivery of possession of a larger portion of the land.
Finding of the Court:

The court found that the measurement carried out lacked demarcation and permanent boundary marks, highlighting the lack of concrete and reliable proof regarding encroachment. It also emphasized the need to consider the special provisions protecting the interests of the special planning authority under the M.R.T.P. Act. The court allowed the appeals, quashed the judgments and decree, and remanded the matter to the trial court for a fresh decision with additional issues and an opportunity for cross-examination of the witness.
Issues: The issues included the appreciation of evidence regarding encroachment, the lack of demarcation and permanent boundary marks in the measurement, and the maintainability of the suit under the M.R.T.P. Act.
Ratio Decidendi: The court's decision was based on the lack of concrete and reliable proof regarding encroachment, the need to consider the special provisions protecting the interests of the special planning authority under the M.R.T.P. Act, and the importance of addressing the maintainability of the suit under the M.R.T.P. Act.
Final Decision: The Second Appeals were partly allowed, the judgments and decree under challenge were quashed and set aside, and the matter was remanded back to the trial court for a fresh decision with additional issues and an opportunity for cross-examination of the witness.

JUDGMENT :

MANGESH S. PATIL, J.

1. These are two separate appeals by the original defendant no. 2 (hereinafter “CIDCO”) being aggrieved and dissatisfied by the dismissal of its Regular Civil Appeal No. 516 of 2012 and allowing Regular Civil Appeal no. 211 of 2013 of the respondents no. 1 and 2 - plaintiffs by the common judgment and order dated 09-10-2018.

2. Respondents no. 1 and 2 claiming to be the exclusive owners of land survey no. 34/1, situated at Jaswantpura, Aurangabad averred about the appellant having encroached over 28 Are portion of their property and claimed declaration of ownership and possession. The trial court decreed the suit partly and directed the appellant to deliver possession of 13 Are portion.

3. Feeling aggrieved, both the sides preferred separate appeals and the appellate court has decided the appeals by common judgment and order under challenge. It dismissed the appeal of the appellant but allowed the appeal of the respondents no. 1 and 2 and modified the decree directing delivery of possession of 28 Are portion. Hence, these two separate appeals.

4. The learned Advocate Mr. Bajaj for the appellant would submit that both the courts below have grossly erred in appreciating the facts, circumstances and evidence. Though the suit property was a part of the entire land survey no. 34 comprising of different parts, without there being clear demarcation of its sub-divisions, no inference could have been logically deduced by the courts below squarely relying upon the measurement carried out by the Deputy Superintendent of Land Records - Bansode (PW-4) who carried out the measurement as per the map Exhibit-103 on the basis of which he testified about the appellant having encroached over 28 Are portion.

5. Mr. Bajaj would submit that the error committed by Mr. Bansode (PW-4) could have been surfaced, had an opportunity of cross-examining him was extended to the appellant. Irrespective of its lapses at the trial, such a request was made even before the appellate court by moving an application seeking permission to enable it to cross-examine that witness, merely by observing that how the appellant was guilty of lapses and the request was being made belatedly that the request was declined by the appellate court while deciding it along with the appeal itself. This has resulted in a gross miscarriage of justice. The appellant is a statutory body and it could not have any oblique intention to grab the property of anybody. The State Government has acquired the land which has thereafter been allotted to the appellant which is a special planning authority under section 40 of the Maharashtra Regional and Town Planning Act, 1966 (for short “M.R.T.P. Act”).

6. Mr. Bajaj would then submit that even without there being cross-examination of Mr. Bansode (PW-4), a bare look at the measurement carried out by him would clearly demonstrate that he had not taken pains to find out the permanent boundary marks which were so important, particularly when the total survey no. 34 is a land which does not have regular boundaries and is irregular in shape. In the absence of such permanent boundary marks, the entire exercise of carrying out measurement by him becomes faulty.

7. Mr. Bajaj would also submit that admittedly, even before filing the suit, the respondents no. 1 and 2 had filed writ petition no. 123 of 1991. By the order dated 05-02-1991, the Division Bench of this Court had allowed the writ petition and directed the District Inspector of Land Records, Aurangabad who was the respondent no. 6, to carry out measurement of the entire land survey no. 34 and to distinctly show as to which of the portion was acquired for the purpose of the present appellant and also another portion acquired for the purpose of respondent no. 4 herein, which is Aurangabad Municipal Corporation. It was specifically expected that the measurement to be carried out by giving notice to all the concerned.

8. He would, therefore, submit that inspite of such specific dir

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