UNION OF INDIA Vs. MARUTI MADHAV KERULKAR

JUDGEMENT

(1.) ORIGINAL defendant Nos. 1 to 4, the Union of India and authorities from Ministry of Defence, by this revision petition challenge the judgment and order dated 18-7-2001 in Miscellaneous Civil Appeal No. 61/1998 passed by 2nd Additional District Judge, Ahmednagar, thereby confirming order dated 24-4-1998 passed by 2nd Joint Civil Judge (J. D.), Ahmednagar, in Regular Civil Suit No. 320/1997.

(2.) PRESENT respondent Nos. 1 to 7 are original plaintiffs. Respondent, Nos. 8 to 10, three Grampanchayats are original defendant Nos. 6 to 8. Respondent No. 11- Collector, who was defendant No. 5 in the suit represents the State. [henceforth parties shall be referred to as plaintiffs (respondent Nos. 1 to 7) defence authorities (revision petitioners), Grampanchyats (respondent Nos. 8 to 10 ) and the Collector, for the sake of brevity] plaintiffs approached the Court of Civil Judge, Senior Division, Ahmednagar, by Regular Civil Suit No. 320/1997 for declaration and perpetual injunction. A declaration is sought that undertaking given by Gram panchayat Nagardeole (defendant No. 6- respondent No. 8 ) through its Sarpanch undertaking to surrender the use of roads X1, Y1 and X2, Y2 and other roads in the suit map, is illegal, ultra vires, null and void and beyond the jurisdiction. In addition, injunction restraining defence authorities from disturbing (obstructing) the plaintiffs from using the suit road and obstructing the conversion of same into a tar road is also prayed for. By an application Exhibit 5, plaintiffs prayed for ad interim injunction in the same terms as final relief. By order dated 24-4-1998, 2nd Joint Civil Judge, Senior Division, Ahmednagar, was pleased to allow the application Exhibit 5 and the operative order reads as follows: application Exhibit 5 is allowed. Issue ad interim injunction restraining defendant Nos. 1 to 4 from causing obstruction in the use and enjoyment of the suit road by plaintiff and other villagers and converting suit road into tar road. Issue ad interim mandatory injunction removing obstruction in the use and enjoyment of the suit way by the plaintiffs and other villagers till disposal of the suit. Costs cause in the cost. It may be stated here itself that the learned Counsel for the revision petitioners has pointed out during the course of his arguments that the learned trial Judge has travelled beyond the prayer in the application Exhibit 5. By the application, plaintiffs had prayed for injunction restraining the military authorities from objecting to the use of way by plaintiffs. The operative order as granted also confers the benefit of use of the suit road in favour of other villagers although that was not prayed either in the prayer clause of the suit or application Exhibit 5. Mandatory injunction regarding removal of obstructions was also not the prayer in the application for interim injunction. Miscellaneous Civil Appeal No. 61/1998 filed by the military authorities was simply dismissed by 2nd Additional District Judge, Ahmednagar, by impugned judgment and order dated 18-7-2001. Consequently, the order passed by learned Civil Judge, Senior Division, stands confirmed without any variation/modification.

(3.) A copy of suit map is made available for ready reference by learned Counsel for the plaintiffs, which is marked Exhibit A for convenient reference. He has also produced copy of the map drawn by Court Commissioner appointed by the trail Court, which is marked Exhibit B. The road, A, B, C, D, E, F shown by blue colour in the map Exhibit A is the road in question and the disputed part is segment AB. Admittedly, properties Gut Nos. 291 and 313 of village Bhingar were acquired by the defence authorities long back sometime in the year 1907. These properties are to the east of Ahmednagar-Aurangabad Road, and abutting the road and the segment AB cuts across both these survey numbers. The plaintiffs claim that they own lands to the east of the land acquired by defence authorities. Plaintiffs and other villagers from villages Bhingar, Burhanagar and Nagardeole have been using the road A, B, C, D, E, including the disputed segment AB for approaching Aurangabad Ahmednagar highway since time immemorial, continuously and uninterruptedly. Plaintiffs claim that defence authorities have acquired the portions from Gut Nos. 291 and 313 on either side of segment AB of the road. Impliedly plaintiffs are suggesting that the segment AB of the road is not acquired by the defence authorities. Admittedly there are quarters of basic training regiment in the southern portion of the lands acquired by military authorities and there are firing ranges in the northern portion. There is also sub station of M. S. E. B. located at point C, which is on the eastern boundary of the land acquired by defence authorities. In fact, plaintiffs claim that the villagers have access through three roads as shown in the map by dotted lines, but for the purpose of dispute in question, we are not concerned with those. It is the claim of plaintiffs that they had been using the road since their forefathers. The lands Gut Nos. 291 and 313 were acquired from ancestors of plaintiff Nos. 1 to 3 and even after the acquisition, plaintiffs and villagers continued to use the way for the purpose of approaching Aurangabad-Ahmednagar Road. Road leading from Burhangar to Aurangabad-Ahmednagar Highway including the disputed segment was taken up for construction under Employment Guarantee Scheme and was completed upto the land acquired by the defence authorities, who did not allow the road to be converted into tar road. The revenue authorities, in exercise of the powers conferred by Mamlatdars Courts Act, have informed the defence authorities that the said road can be used by all the villagers. A certificate to that effect is issued certifying the existence of road and right to use the same. The defence authorities have not allowed the segment AB to be completed under E. G. S. Scheme. It is also alleged that defendant No. 4 in collusion with Sarpanch of Nagardeole entered into agreement whereby Sarpanch has undertaken to forego other two routes indicated by dotted lines and agreed to use of only one route ABCDEF. In fact, plaintiffs have challenged this act as illegal. In the month of February, 1995, Station Commander had granted permission for construction of road ABCDEF and conversion of it into tar road. However, in spite of such permission, the defence authorities did not allow the work of the road to be commenced till the filling of the suit. An incident on the day preceding the day of filing of the suit, wherein plaintiffs and other family members were obstructed from passing by the segment AB, is stated as cause of action for the suit.