APAR PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is for grant of special leave to appeal against the judgment dated 25-4-1990 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 21-6-1979 (Exhibit-S) 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 petitioner' 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 considered. 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 20-8-1991, 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 Stage 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 negotiations 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 Government's assertion of a surreptitious attempt of its employees to give undue benefit to the petitioners against whom action is contemplated.

(3.) There are only a few facts which are material for the decision on merit. 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 enforcement by the petitioners was determined at 25,915 sq.yds. by order dated 26-5-1967 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 aforesaid negotiations for settlement in which different are as have been shown as the encorchment. In our opinion, the binding effect of the order dated 26-5-1967 concludes this controversy and the extent of encroachment by the petitioners has to be taken as 25,915 sq.yds. on the date of that order as concluded finding of fact.