MUNICIPAL COUNCIL PUSAD Vs. KUNDANLAL MOHANLAL JAISWAL

JUDGEMENT

(1.) Petitioner before this Court is Municipal Council, a local authority constituted under the provisions of Maharashtra Municipalities, nagar Panchayats and Industrial Townships Act, 1965 (referred to as Municipal act hereafter) for municipal administration of Pusad town in Yavatmal district. Respondents 1 to 3 before this Court are occupiers of temporary structures which petitioner wanted to remove as encroachment for undertaking the earmarked development work of road widening and erection of a shopping centre. Accordingly on 5th Oct. 2005 it served notices upon them under section 181 of municipal Act and called upon them to remove encroachment. Respondents challenged said notices by filing Regular Civil Suit 150/2005 and in said Civil suit they sought temporary injunction. Second Joint Civil Judge Junior Division at Pusad rejected that prayer on 18-10-2005 and this rejection was challenged by them in Misc. Civil Appeal 26/2005 under Order 43, Rule 1 of Civil Procedure code. Additional District Judge, Pusad by judgment dated 29-10-2005 allowed that Appeal and directed expeditious disposal of Civil Suit while protecting possession of respondents. Municipal Council has questioned the judgment in present Writ Petition. Respondents had filed caveat and they filed their submissions on 12-4-2006. On 14-12-2006 this court while issuing notice ordered that petition shall be disposed of finally at admission stage itself. Accordingly I have heard Advocate N. W. Sambre for petitioner and Advocate k. S. Narwade for respondents finally by making rule returnable forthwith.

(2.) Advocate Sambre contends that Appellate Court has given temporary injunction only because it has found respondents in possession. He argues that possession of respondents is not legal and also not in accordance with provisions of Municipal Act. He further states that land has admittedly vested in petitioner and is required by for starting the work of road widening and also for building of shopping centre. He argues that these lands are reserved for this purpose in town planning and work to be undertaken is in public interest. Respondents have no right to continue in possession of said land for having their business. He points out that lands are not alloted to respondents in accordance with requirements of municipal Act or Maharashtra Land Revenue Code. He invites attention to various judgments to state that the Appellate Court has not correctly appreciated the controversy and has given temporary injunction without noticing that there is no legal right in respondents to continue in possession. Mere long possession or payment of property tax, water tax or some rent to Municipal Council or having certificate is in relation to establishment does not establish any prima facie case in their favour. He also invites attention to provisions of Municipal Act for said purpose. Advocate Narwade on behalf of respondents states that respondents are in possession since 1971 and shop or business on sites in dispute is their only source of livelihood. He states that Municipal Council is recovering rent from them regularly and they are also paying property tax, electricity charges, water tax etc. He states that they are also having valid licence under Bombay Shops and establishments Act, 1948. He invites attention to resolution of Municipal Council dated 7-12-1987 to make provision of alternate site for them before asking them to vacate. He also invites attention to similar condition put in by Collector, yavatmal while allotting in these lands to Municipal Council vide order dated 27-5-1989. He also relies upon judgments considered by Appellate Court for supporting said order. According to him Section 181 of Municipal Act has no application in the facts of present case. Lastly he points out that suit is already expedited by Appellate Court and hence this Court should not interfere in writ jurisdiction. He submits that rights of parties should be allowed to be worked out by Civil Court and at the most said suit should be made time bound.

(3.) Appellate Court has relied upon 1994 Mh. L. J. 806 = AIR 1994 Bombay 189, M. M. Sangtani vs. Dhule Nagar Palika (Municipal Council) , Dhule. Writ petitioners in said case were possessing tenements belonging to the Municipal council, Dhule for carrying on petty business, for more than 20 years. The petitioners also contended that they had licence from the Municipal Council, dhule under the Shops and Establishments Act for carrying on their business in the tenements in question and that they were paying taxes to the Municipal council from time to time. On 1st March, 1987, some officers of the Municipal council, Dhule along with a number of workers having come to the premises of the petitioners for demolition of the same on the ground that they were encroachers on the public road, the petitioners instituted suits in the Court of joint Civil Judge, Junior Division, Dhule and also sought temporary injunction. The trial Court was satisfied that it was a fit case and by order dated 7th March, 1987 temporary injunction was issued to the petitioners as prayed for by them. On appeals of Dhule Municipal Council the 3rd Additional District Judge, Dhule by a common judgment and order, dated 27th August 1990 set aside the order of the trial Court of 7th March 1987, granting injunction in favour of the petitioners. The learned Appellate Court did find that prima facie case stood in favour of the plaintiffs. It, however, observed that irreparable harm and inconveniences may not be sufficient criteria for granting an interim injunction. Appellate Court held that while considering the point of balance of convenience, it was necessary to see the surrounding prevailing circumstances and welfare of the general public at large; that it was indispensable to protect the rights of community rather than the individual rights. It is in this background that following observations are made by this Court :-