Bombay High Court
Surendra Singh Bhatiya Thr Poa Darshan … vs Chief Executive Officer Nagar … on 18 June, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:24055
-WP3795-2025+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SANTOSH
SUBHASH WRIT PETITION NO. 3795 OF 2025
KULKARNI
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Pukharaji Rupaji Choudhari through POA
Date: 2025.06.18
18:23:53 +0530 Rajesh Pukharaj Choudhari ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3796 OF 2025
Jayawanti Narayan Shigawan through POA ...Petitioner
Raghunath Ramchandra Dhondage
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3797 OF 2025
Surendra Singh Bhatiya through POA
Darshan Kaur Surendra Singh Bhatia ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3798 OF 2025
Laxmi Sakharam Shinde through POA
Priyanka Sakharam Shinde ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3799 OF 2025
Dharamaraj Nandakai Kushawah ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
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WITH
WRIT PETITION NO. 3800 OF 2025
Chandulal Motilal Gupta ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3801 OF 2025
Pramod Raju Atikandan through POA
Shivaji Balkrushna Mhaske ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3802 OF 2025
Sandip Anturam Verma ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
WITH
WRIT PETITION NO. 3816 OF 2025
Suresh Dattaram Hujare ...Petitioner
Versus
Chief Executive Officer, Nagar Panchayat
Mangaon ...Respondents
Mr. Anil V. Anturkar, Senior Advocate. a/w Mr. Roshan
Pandhare i/by Mr. Atharva Date, for the Petitioner in
all WPs.
Mr. Amjith M. Anandhan, a/w Mr. Sachin Ramrao Pawar, Mr.
Anish K. Valappil, Mr. Nikhil Mallelwar and Mr. Rohan
Kaiche, for the Respondent in all WPs.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 9th MAY, 2025
PRONOUNCED ON: 18th JUNE, 2025
JUDGMENT:
–
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
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2. The challenge in these petitions is to the judgments and
orders dated 20th February, 2025 in the Misc. Civil Appeals
whereby the District Judge, Mangaon, District Raigad, was
persuaded to allow the appeals preferred by the respondent –
defendant and thereby set aside the orders passed by the
learned Civil Judge, Mangaon, on 15 th July, 2024 in the suits
instituted by the petitioners – plaintiffs for restraining the
respondent – defendant from causing obstruction to the
possession and enjoyment of the suit stalls on the basis of the
notice dated 16th May, 2024.
3. As all these petitions arise out of identical facts and raise
common questions, all these petitions were heard together and
are being decided by this common judgment. The facts in
WP/3795/2025 are taken as a representative case.
4. The background facts are as under:
4.1 The petitioner, like the petitioners in the rest of the
petitions, runs a stall since the year 1960, being Stall No.10
admeasuring 10 X 10 ft. under the name and style of ‘Jay Ambe
Tobacco’ at Mangaon (“the suit stall”). The petitioner claims the
land on which the suit stall is run was allotted to the petitioner
by the then Group Village Panchayat, Mangaon, the predecessor
of Mangaon Municipal Council, the defendant.
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4.2 The petitioner has been carrying on the business in the
suit stall. Since the year 1960, the respondent has collected rent
as well as taxes from the petitioner. Receipts have been issued.
4.3 On 17th January, 2024, the respondent issued a notice to
the petitioner calling upon him to vacate the suit stall as the
suit stall was required to be demolished for the purpose of
construction of the new building for the Municipal Council. The
petitioner gave reply to the said notice on 18th January, 2024.
4.4 Apprehending highhanded action, the petitioner had
instituted a suit being RCS/20/2024 assailing the legality and
validity of the said notice and to restrain the respondent from
acting on the basis of the said notice. In the said suit, on 26 th
February, 2025, an order of temporary injunction was passed by
the learned Civil Judge. The respondent preferred Misc. Civil
Appeal No.12/2024 before the District Court at Mangaon.
However, on 1st April, 2024, the said appeal was disposed of as
not pressed.
4.5 The petitioner asserts, the respondent addressed second
notice on 16th May, 2024 alleging that the land covered by the
suit stall was allotted to the petitioner on temporary basis. The
petitioner had erected structure over the said land without
obtaining the permission of the then village panchayat. The
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petitioner has carried out unauthorized development and
encroachment. Secondly, there was no agreement between the
Municipal Council and the petitioner as envisaged by the
provisions contained in Section 92 of The Maharashtra
Municipal Councils, Nagar Panchayats And Industrial
Townships Act, 1965, (“the Act, 1965”). Thirdly, the suit property
was within the control line of Mumbai-Goa National Highway
No.66. It was, therefore, necessary to remove the suit property.
The petitioner was called upon to remove the structure and
vacate the suit stall within a period of 8 days lest the
respondent would initiate the action of removal.
4.6 The petitioner again instituted a suit being RCS/97/2024
assailing the legality and validity of the said notice and the
proposed action and sought declaration and consequential
injunctive relief. In the said suit, the petitioner filed an
application for temporary injunction.
4.7 By an order dated 15th July, 2024, the learned Civil Judge,
Mangaon, was persuaded to grant temporary injunction and
thereby restrain the respondent Council from acting upon the
impugned notice dated 16th May, 2024 till the final decision of
the suit opining that a prima facie case was made out in favour
of the petitioner as the petitioner had been in the occupation of
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the suit stall since the year 1960, the respondent Council has
accepted rent and taxes, the notice was vague on the aspect of
the extent of the alleged encroachment and the fact as to
whether the petitioner was a tenant of the Municipal Council
warranted adjudication at the trial.
4.8 Being aggrieved, the respondent – defendant preferred
appeal before the District Court. By the impugned judgment
and order, the learned District Judge was persuaded to allow
the appeal primarily relying upon a map placed on the record of
the District Court by the respondent, to show that the suit
property fell within the control line form the centre of the
National Highway. The learned District Judge was of the view
that the fact that Municipal Council had accepted the rent and
taxes was of no significance. Since the construction was
unauthorized and illegal it was required to be demolished.
Support was sought to be drawn from the order passed by the
Division Bench of this Court on 22nd April, 2019 in
PIL/42/2015, whereby directions were given to take action of
removal of encroachment over the National Highway.
5. Being aggrieved, the plaintiffs have invoked writ
jurisdiction of this Court.
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6. I have heard Mr. Anturkar, the learned Senior Advocate for
the petitioners, and Mr. Amjith Anandhan, the learned Counsel
for the respondent, at some length. The learned Counsel for the
parties took the Court through the pleadings and the material
on record.
7. Mr. Anturkar, the learned Senior Advocate for the
petitioners, submitted that the learned District Judge
transgressed the jurisdictional limits in setting aside a
discretionary order passed by the trial court, and that too on
the basis of material, which was tendered before the Court on
the very day the appeal came to be decided. Mr. Anturkar
would urge, the learned District Judge ought to have given an
adequate opportunity to the petitioners to meet the case sought
to be set up before the Appellate Court by banking upon the
survey map, which was tendered on the day the appeal came to
be disposed of. No effective opportunity of hearing was provided
to the petitioners – plaintiffs. The petitioners had objected to
the production of the map. If the learned District Judge was
inclined to allow production of the map, the least that was
expected was to provide an opportunity to the petitioners to
demonstrate as to how the map could not be made the
foundation of the determination. Therefore, on account of grave
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procedural irregularity the impugned order deserves to be set
aside and the matter remitted to the Appellate Court for afresh
determination.
8. Even on the merits of the matter, Mr. Anturkar would
urge, the learned District Judge was clearly in error in
interfering with the order passed by the trial court. The learned
Civil Judge has correctly noted the variance in the stand of the
Municipal Council in the first and second notice. In fact, the
order of injunction passed in the first suit i.e. RCS/20/2024,
still operates. The miscellaneous appeal preferred thereagainst
was withdrawn. The grounds on which the petitioners were
called upon to vacate the suit stalls under the
second/impugned notice are irreconcilable with the claim of the
respondent in the first notice.
9. Mr. Anturkar would further urge even the map on which
reliance was placed by the learned District Judge ex facie does
not sustain the impugned order. Mr. Anturkar submitted that
there were fundamental challenges to the veracity and
correctness of the map, both on the aspect of the procedure
followed while drawing the map and the inferences drawn by the
Cadestal Surveyor. In fact, in a prior communication dated 31st
January, 2024, the Deputy Superintendent Land Records,
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Mangaon, had informed that the map and demarcation
certificate were not available. Lastly, Mr. Anturkar would urge,
the Municipal Council was not the competent authority to
remove the encroachment over the National Highway. The
Control of National Highways vest with the authorities
constituted under The Control of National Highways (Land and
Traffic) Act, 2002. Under Section 24 of the said Act, the Highway
administration or any officer authorized by such administration
is empowered to remove unauthorized occupation. The
Municipal Council having suffered the order of temporary
injunction, in the previous suit, usurped the authority of the
Highway Administration and issued the impugned second
notice. Therefore, the impugned order deserves to be quashed
and set aside.
10. Mr. Anandhan, the learned Counsel for the respondent –
Municipal Council, would urge that the petitioners are
attempting to cling to the purported inconsistency in the first
notice and the impugned second notice and raising all sorts of
technical defences. Mr. Anandhan would urge that the hard
facts of the case must enter the judicial determination. First,
the subject stalls are located on the National Highway. A
Division Bench of this Court has passed an order directing the
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removal of encroachments over the National Highway, in a time
frame. The survey map indicates that the subject stalls are
within the ambit of the control line. To add to this, the
petitioners have no semblance of right to hold on to the suit
properties.
11. Mr. Anandhan canvassed a three-pronged submission as
regards the action of removal initiated by the Municipal Council.
Firstly, the action was in exercise of the power under Section
179 of the Act, 1965 as the petitioners were the temporary
occupants of the suit property. The claim of the petitioners that
they are the tenants does not merit countenance as no
leasehold rights were created in favour of any of the petitioners
by the erstwhile Mangaon Village Panchayat under the
provisions of Section 55 of the Maharashtra Village Panchayats
Act, 1959 or by the defendant under Section 92 of the Act, 1965.
No resolution has been passed by the Municipal Council to
grant or renew the lease beyond the initial period of three years.
Thus, the fact that the petitioners have been in the occupation
of the suit stalls, does not by itself legalize their possession and
enjoyment of the suit property. The payment of ground rent
and/or taxes is of no assistance to the petitioners. To buttress
this submission Mr. Anandhan placed a very strong reliance on
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a judgment of this Court in the case of Municipal Council,
Pusad vs. Kundanal Mohanlal Jaiswal and ors.1.
12. Secondly, the petitioners are occupying the land within the
control line of National Highway No.66. The High Court by its
order dated 22nd April, 2019 in PIL/42/2015 has issued specific
directions for removal of such occupants. The challenge to the
consideration of the map by the learned District Judge,
according to Mr. Anandhan, is not at all sustainable. The
provisions contained in Maharashtra Land Rvenue (Village,
Town and City Survey) Rules, 1969 have no application at all to
the survey under the Maharashtra Highways Act, 1955, which
governs the preparation of the maps in connection with
highways, submitted Mr. Anandhan. Under the Maharashtra
Highways Act, 1955, the State Government is empowered to take
action for removal of the unauthorized occupants.
13. Thirdly, Mr. Ananadhan would urge the impugned notice
also refers to the necessity of the removal of the subject stalls as
it is causing obstruction in the construction of new Municipal
Council building. In substance, Mr. Anandhan would urge, as
the petitioners occupation of the suit stalls is completely illegal,
the petitioners cannot be permitted to take advantage of the
1 WP/886/2006 dtd.31/1/2007.
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procedural infirmities, if any, and thereby continue to cause
grave prejudice to the public at large on account of the situation
of the suit stalls within the control line.
14. I have given anxious consideration to the submissions
canvassed across the bar, especially in the light of the assertion
of the Municipal Council that the subject stalls cause
obstruction to the free movement of the traffic on the National
Highway. There could be no duality of opinion that, an unlawful
occupant cannot be permitted to squat over the public
premises much less a National Highway, by taking undue
advantage of the infirmities in the action on the part of the
instrumentalities of the State. At the same time, the Court
cannot be oblivious to the fundamental defect in procedure and
apparent jurisdictional errors.
15. In the case at hand, in the light of the view which this
Court is ultimately persuaded to take, it may not be necessary
to delve deep into the thickets of facts. Suffice to note that there
is an apparent disconnect between the stand of the respondent
– Municipal Counsel as regards the status of the suit stalls and
that of the petitioners. In the first notice dated 17 th January,
2024, it was mentioned that the stalls belonged to Municipal
Council and the removal of those stalls was necessary to
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facilitate the construction of new Municipal Council building.
In contrast, in the second impugned notice dated 16 th May,
2024, it was mentioned that the land was given to the
petitioners for temporary period on ground rent and the
petitioners had erected structures thereon without obtaining the
permission of the erstwhile Village Panchayat or the Municipal
Council. The construction was illegal and in the nature of
encroachment. In the first notice, there was no reference to the
suit stalls falling within the control line of National Highway
No.66. The second impugned notice sought to draw support to
the action of removal on the ground that the suit stalls are
within the control line of the Highway, and pursuant to the
directions of the High Court they were required to be removed.
16. This prima faice disconnect between the stand of the
Municipal Council coupled with material to show that the
Municipal Council had accepted the ground rent and taxes from
the petitioner persuaded the learned Civil Judge to grant
temporary injunction.
17. At this juncture, the jurisdictional limits in an appeal
against a discretionary order assume significance. It is trite, an
appeal against a discretionary order is an appeal on principle.
Ordinarily, the Appellate Court is not expected to interfere with
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the exercise of discretion in the matter of grant of injunction by
the trial Court and substitute its own discretion for the same,
except where it can be demonstrated that the discretion has
been exercised arbitrarily or perversely, or the impugned order
is contrary to the settled principles of law. An arbitrariness in
the exercise of discretion or perversity in the order passed by
the trial Court can arise where the injunction has been granted
sans material or the trial court has declined to grant temporary
injunction, despite existence of justifiable material.
18. A profitable reference in this context can be made to a
three Judge Bench decision of the Supreme Court in the case of
Wander Ltd. and Anr. V/s. Antox India P. Ltd. 2, wherein the
following observations have been made :
“14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals,
the Appellate Court will not interfere with the exercise of
discretion of the court of first instance and substitute its own
discretion except where the discretion has been shown to
have been exercised arbitrarily, or capriciously or perversely
or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal
on principle. Appellate Court will not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by the court
was reasonably possible on the material. The appellate court
would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that
if it had considered the matter at the trial stage it would have
come to a contrary conclusion. If the discretion has been
exercised by the Trial Court reasonably and in a judicial
manner the fact that the appellate court would have taken a2 1990 (Supp) SCC 727.
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different view may not justify interference with the trial
court’s exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) Pvt. Ltd.
V/s. Pothan Joseph (1960) 3 SCR 713) :
“… These principles are well established, but as has
been observed by Viscount Simon in Charles Osention & Co.
v. Johnston the law as to the reversal by a court of appeal of
an order made by a judge below in the exercise of his
discretion is well established, and any difficulty that arises is
due only to the application of well settled principles in an
individual case.
The appellate judgment does not seem to defer to this
principle.”
(emphasis supplied)
19. In the case of Shyam Sel and Power Ltd. and Anr. V/s.
Shyam Steel Industries Ltd.3, the Supreme Court observed that
the aforesaid judgment in the case of Wander Ltd. (Supra), has
been guiding the appellate courts in the country for decades
while exercising their appellate jurisdiction considering the
correctness of the discretion and jurisdiction exercised by the
trial courts for grant or refusal of interlocutory injunctions.
20. In the case of Seema Arshad Zaheer and Ors. V/s.
Municipal Corporation of Greater Mumbai and Ors. 4 the
Supreme Court expounded the principles which govern the
interference by the appeal Court in the discretionary order
passed by the trial Court. The observations in paragraph 32 are
material, and, hence, extracted below:
3 (2023) 1 SCC 634.
4 (2006) 5 SCC 282.
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“32. Where the lower court acts arbitrarily, capriciously or
perversely in the exercise of its discretion, the appellate court
will interfere. Exercise of discretion by granting a temporary
injunction when there is ‘no material’, or refusing to grant a
temporary injunction by ignoring the relevant documents
produced, are instances of action which are termed as
arbitrary, capricious or perverse. When we refer to acting on ‘no
material’ (similar to ‘no evidence’), we refer not only to cases
where there are total dearth of material, but also to cases
where there is no relevant material or where the material,
taken as a whole, is not reasonably capable of supporting the
exercise of discretion. In this case, there was ‘no material’ to
make out a prima facie case and therefore, the High Court in
its appellate jurisdiction, was justified in interfering in the
matter and vacating the temporary injunction granted by the
trial court.”
(emphasis supplied)
21. Another three Judge Bench of the Supreme Court in the
case of Skyline Education Institute (India) Pvt. Ltd. V/s.
S.L.Vaswani and Anr.5 after referring to the previous precedents,
culled out the principles in the following words :
“22. The ratio of the abovenoted judgments in that once the
Court of first instance exercises its discretion to grant or refuse
to grant relief of temporary injunction and the said exercise of
discretion is based upon objective consideration of the material
placed before the Court and is supported by cogent reasons,
the appellate court will be loath to interfere simply because on
a de novo consideration of the matter it is possible for the
appellate Court to form a different opinion on the issues of
prima facie case, balance of convenience, irreparable injury
and equity.”
(emphasis supplied)
22. Keeping in view the aforesaid principles, reverting to the
facts of the case, it appears that the learned District Judge
allowed the application for production of the map on 20 th
February, 2025. And, on the very day, the appeal came to be
5 (2010) 2 SCC 142.
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decided primarily relying upon the said map. The Court finds
that the petitioners had raised objections to the map while
opposing the production thereof. It was, inter alia, contended
that the said map was prepared without notice to the petitioners
and the findings therein were not correct. In the face of these
objections, the learned District Judge, in all fairness, must have
given an adequate opportunity to the petitioners to meet the
case sought to be set up before the Appellate Court.
23. The situation which thus emerges is that the case is not
one of the Appellate Court taking a different view of the matter
on the basis of the very material which was before the trial
court but that of the Appellate Court considering a vital
material for the first time in the appeal and determining the
appeals principally on the strength thereof, without providing
an opportunity to the petitioners/plaintiffs.
24. Undoubtedly, in view of the provisions contained in Order
XLIII Rule 2 of the Code, the procedure prescribed under the
Rules of Order XLI applies to the appeals from orders. The
Appellate Court is empowered to permit a party to produce
additional evidence. But, the Court ought to ensure that the
opponent gets an efficacious opportunity to meet the case set up
by producing additional evidence/material.
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25. The endeavour of Mr. Anandhan to urge that de hors the
map and especially in the light of the provisions contained in
Section 92 of the Act, 1965 in the absence of agreement and
resolution of the Municipal Council, the petitioners are
otherwise not entitled to hold on to the suit stalls does not take
the matter any further. From the perusal of the impugned
order, it becomes evident that the fact that in the map the
subject stalls were shown within the control line principally
weighed with the learned District Judge in allowing the appeals.
It is not the case that the learned District Judge was persuaded
to allow the appeals on the basis of the material available before
the trial court and took into account the map which was
produced on the date of the final disposal of the appeal, just to
lend assurance to the findings recorded by the learned District
Judge.
26. In the aforesaid view of the matter, the impugned order
cannot be sustained and the appeals deserve to be remitted
back to the learned District Judge for afresh determination,
after providing an effective opportunity of hearing to the
petitioners – plaintiffs, including to raise objections to the map
which was produced by the respondent, on the very day, the
appeals were decided.
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27. In the light of the view this Court is persuaded to take, it
may not be appropriate to delve into the other submissions
canvassed on behalf of the parties lest the Appellate Court may
be influenced by the observations made by this Court. Suffice to
clarify that all contentions are kept open for consideration by
the Appellate Court.
28. Hence, the following order:
:ORDER:
(i) The petitions stand allowed.
(ii) The order impugned in each of the petitions stand quashed
and set aside.
(iii) The order passed by the trial court in each of the suits on
the application for temporary injunction stands restored.
(iv) The appeals stand remitted back to the Court of the
learned District Judge, Mangaon.
(v) The parties shall appear before the learned District Judge,
Mangaon, on 30th June, 2025.
(vi) The plaintiff(s) – respondent(s) in the respective appeal(s)
is/are at liberty to file an affidavit to deal with the map
tendered before the Appellate Court on 20 th February,
2025, on or before 14th July, 2025.
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(vii) The Appellate Court shall hear the appeals afresh and
consider the affidavit/objections to the map and decide the
appeals in accordance with the law as expeditiously as
possible and, preferably, within a period of two months
from 14th July, 2025.
(viii) The petitions stand disposed.
No costs.
[N. J. JAMADAR, J.]
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