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2005 DIGILAW 853 (BOM)

Abhaykumar v. State of Maharashtra

2005-07-11

A.P.DESHPANDE, VASANTI A.NAIK

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Judgment A. P. DESHPANDE, J. ( 1 ) THIS petition is filed making a grievance in regard to the infringement of private rights and has not been filed in public interest, is an admitted position. This Court after hearing the learned Counsel for the petitioner, on 21-2-2005, prima facie found that there is no element of public interest involved in the petition and in response to the same, Counsel for the petitioner categorically stated that the petition is not filed in public interest. While arguing the matter before us, learned Counsel for the petitioner submitted that if the Court finds that the public interest is involved, the petition be treated, as such. At the outset, we make it clear that we do not find any public interest involved in this petition but the same is filed to espouse a private cause. ( 2 ) IT is the case of the petitioner that he is owner in possession of Survey No. 558 which is adjacent to Survey No. 276. It is contended that the respondent nos. 7 to 17 who are in possession of plots of land from Survey no. 276 are trying to transfer the plots to various persons without any semblance of title and hence appropriate orders be issued to protect the Government land which, according to the petitioner, is a forest land. The petitioner has submitted that the respondent nos. 15 and 17 other persons who were encroachers in possession of the land from Survey No. 276 prior to 1980, were allotted the said lands by an order dated 16-4-1980. The said allotment, according to the petitioner, is illegal. It is pointed out that in regard to the legality of the allotment, the matter was carried to Collector, so also, the Divisional Commissioner, who confirmed the allotment infavour of the respondent no. 15 and others, whereas in revision, the State government had remanded the matter to the commissioner for fresh enquiry. This order of remand was challenged by the aggrieved parties (allottees) by filing a Writ Petition in the High court. The Writ Petition thereafter came to be withdrawn and the Commissioner after holding an enquiry as directed by the State Government has again confirmed the order of allotment. The petitioner has never challenged the allotment made in 1980 in favour of the respondent no. 15 and others. The Writ Petition thereafter came to be withdrawn and the Commissioner after holding an enquiry as directed by the State Government has again confirmed the order of allotment. The petitioner has never challenged the allotment made in 1980 in favour of the respondent no. 15 and others. The main thrust of the submission of the petitioner is that as the allotment of the land in favour of the respondent no. 15 and others itself is illegal, the further transfer of the plot of lands by the said persons in favour of various purchasers including the respondents / intervenors would also be illegal. It is tried to be demonstrated, that in breach of the conditions of allotment, various plots are sold by the respondents. ( 3 ) PER contra, the contesting respondent (original allottees) and the purchasers from the said respondents who have filed intervention applications, vehemently contended that the present petition need to be rejected on the ground of 'suppressio veri and suggestio falsi'. In their submission, material facts are not stated in the petition and the petition is founded on false and incorrect information. The respondents dispute the very existence of survey No. 558 and point out that as the petitioner was trying to disturb the possession of occupants of Survey No. 276, the allottees and others have filed a Civil Suit which is pending. Our attention is invited to the interlocutory order dated 20-8-2004 passed by the IIIrd Joint Civil Judge (J. D.), Jalna, in regular Civil Suit No. 388/2004 and to be precise, observations made by the trial Court in para 23 of its order wherein the trial Court has prima facie found that Survey No. 558 is not in existence and that the said Survey number is brought on record by fabrication and forging of record. ( 4 ) TWOFOLD submissions are made on behalf of the respondents firstly, that the petition does not disclose the fact that the petitioner has filed a Civil Suit, so also, the fact that the respondent nos. 7 to 10 and others have filed a civil Suit wherein the very existence of Survey no. 558 is in issue. ( 4 ) TWOFOLD submissions are made on behalf of the respondents firstly, that the petition does not disclose the fact that the petitioner has filed a Civil Suit, so also, the fact that the respondent nos. 7 to 10 and others have filed a civil Suit wherein the very existence of Survey no. 558 is in issue. Non-disclosure of pendency of suits and suppression of passing of an injunction order against the petitioner in one of the said suits, according to the respondents, disentitle the petitioner to any discretionary relief at the hands of this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. It is next contended that in the present petition, allotment made infavour of the original allottees in the year 1980 and the validity of transfer of various plots from land Survey No. 276 in favour of various purchasers by them cannot be decided incidentally or in collateral proceedings when the same is not challenged substantively. It is also pointed out that similar directions are being sought in the present petition, which have been rejected by this Court while dismissing Writ petition No. 5096/1998 which was filed in public interest. It is next pointed out that Survey no. 276 is today a developed land whereon decent houses have been constructed. The photographs are placed on record at page 520. It is then pointed out that Survey No. 276 is included in the development plan and part of the same is reserved for residential purpose whereas in the remaining area, provision has been made for public utility and a ring road. According to the respondents, the original allottees / transferees have converted the land by obtaining N. A. permission and thereafter layout is sanctioned by the Municipal Council. After sanctioning layout, various purchasers have purchased plots of land and have constructed houses thereon. A Society which has purchased 28 plots from the said layout has filed Civil Application No. 7516/2005 for intervention. All the persons who have purchased the plots and constructed houses thereon are not joined as respondents in the present petition. The record reveals that when the petition was filed, barring the State government and its officers, no private party was impleaded as respondents though the orders that would have been passed in the petition would have affected many persons. All the persons who have purchased the plots and constructed houses thereon are not joined as respondents in the present petition. The record reveals that when the petition was filed, barring the State government and its officers, no private party was impleaded as respondents though the orders that would have been passed in the petition would have affected many persons. All the contesting respondents are impleaded in this petition by the orders passed by this Court allowing respective applications moved by them in that regard. ( 5 ) THE Sub-Divisional Officer and collector has filed an affidavit, so also, respondent nos. 1 and 5 have also filed an affidavit. Their stands do not go hand in hand. But as we are rejecting the Writ Petition summarily, we do not feel it necessary to deal with the said affidavits in detail. The main prayer in this petition is for issuance of directions to protect the Government property. This very relief has been refused by the Division Bench in Writ Petition No. 5096/1998, by holding that the Government is capable of protecting its own property. ( 6 ) IN the peculiar facts of the case, we have no hesitation in concluding that the petitioner has not approached this Court with clean hands. The material facts are suppressed. Filing of Civil Suit by the petitioner, so also, filing of Civil Suit by the respondents and others, is also suppressed, more so, when the interim order passed by the Civil Court prima facie finds that Survey No. 558 is not in existence and is sought to be created by manipulation and fabrication of record. Civil Suits are pending and interim orders are passed therein. It was incumbent on the petitioner to have stated true and correct facts as the same have bearing on the issue involved in this petition. Non-joinder of all necessary parties who are likely to be affected, is another ground to reject the petition. Without joining necessary parties as respondents, the petitioner has tried to snatch an order from this Court. It is reiterated that as the petitioner has not approached this Court with clean hands, we refuse to exercise the discretion in favour of the petitioner in exercise of jurisdiction under Article 226 of the constitution of India. The petitioner is guilty of 'suppressio veri and suggestio falsi'. It is reiterated that as the petitioner has not approached this Court with clean hands, we refuse to exercise the discretion in favour of the petitioner in exercise of jurisdiction under Article 226 of the constitution of India. The petitioner is guilty of 'suppressio veri and suggestio falsi'. ( 7 ) WHILE arguing the matter, learned counsel for the petitioner submitted that even though he has not filed the instant petition in public interest, the same could be treated as such. We do not propose to do that as we are sure that the petitioner is trying to vindicate his personal grievance and no element of public interest is involved. ( 8 ) IN the result, the Writ Petition fails and the same is dismissed in liminae. Petition dismissed.