TAJ MOHAMED YAKUB Vs. ABDUL GANI BHIKAN

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution to challenge legality of order dated 12/04/1985 passed on application (Exh. 10) in Darkhast No. 143 of 1982 by civil Judge, Junior Division, Malegaon, is referred to Division Bench by Justice Mrs. Manohar as the learned Judge disagreed with the view taken by Mr. Justice Jahagirdar in regard to interpretation of expression "occupier" under Section 2 (e) (v) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the 'act' ).

(2.) THE facts which gave rise to filing of the petition are not in dispute and are required to be briefly stated to appreciate the controversy raised in the petition. The petitioner is owner of an open plot bearing survey No. 41 / A / 1 admeasuring one acre 28 gunthas and situate within the municipal area of Malegon Municipal Council. The petitioner claims that the respondent raised unauthorised construction of a tin shed admeasuring 12 feet X 25 feet and is occupying the same for the purpose of residence. The petitioner instituted Regular Civil Suit No. 226 of 1972 in the Court of Civil Judge, junior division, Malegaon, against the respondent for recovery of possession on the strength of title and for damages for wrongful occupation. The suit was resisted by the respondent, but the trial Court passed decree of eviction with consequential reliefs by judgment dated 26/07/1982. During the pendency of the suit, the competent authority constituted under the Act declared that survey No. 4l / A/ 1 is a slum area and the declaration was published in the official gazette on 26/12/1977. The petitioner did not challenge the declaration by filing an appeal to the Tribunal as provided under sub-section (3) of Section 4 of the Act. The petitioner, after obtaining decree of eviction against the respondent, instituted Regular Darkhast No. 143 of 1982 for recovering possession from the respondent. The respondent/judgment-debtor thereupon filed application (Exh. 10) claiming that the execution petition cannot proceed as the petitioner had failed to obtain permission as contemplated under Section 22 (1) (b) of the Act. The contention raised by the respondent/ judgment-debtor was upheld by the executing Court by the impugned order dated 12/04/1985 and that has given rise to filing of the present petition.

(3.) THE petition was placed for hearing before justice Mrs. Manohar on 18/10/1989, and it was claimed on behalf of the petitioner that permission as contemplated under Section 22 is not required for recovering possession from a rank trespasser. The petitioner claimed that expression "occupier" as defined under Section 2 (e) does not include a person who is in occupation as a trespasser. In support of the submission, the petitioner placed reliance upon an unreported decision dated 7/02/1985, delivered by Mr. Justice Jahagirdar in Writ Petition No. 1572 of 1984 in the case of Talslimkha Ismailkha Manyar v. Pandit Ramchandra Khairnar. Justice Mrs. Manohar by speaking order, expressed her disagreement with the interpretation accepted by Mr. Justice Jahagirdar and thereupon directed that the petition should be placed before the learned Chief Justice for being referred to Division Bench. The learned Chief Justice directed the petition to be placed before us for final disposal.