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2017 DIGILAW 603 (BOM)

State of Maharashtra v. Vitthal

2017-03-24

R.K.DESHPANDE

body2017
JUDGMENT R.K. Deshpande, J. 1. The respondents are the original plaintiffs, who filed Special (State) Civil Suit No. 14 of 1996 for declaration that any portion or the construction of the plaintiff No. 1, particularly shown by Roman numerals V, VI, VII and VIII in the map annexed with the plaint is not an encroachment on the road and for permanent injunction restraining the defendant from demolishing the said structure of the plaintiff No. 1 and damages of Rs. 60,000/- along with interest. The suit was dismissed by the Trial Court on 23-10-2001. In Regular Civil Appeal No. 157 of 2001 preferred by the plaintiff No. 1, the lower Appellate Court, by its judgment and order dated 6-1-2004, has set aside the decision of the Trial Court and a decree has been passed in favour of the plaintiff No. 1. Hence, the original defendant is before this Court in this second appeal. 2. Two questions were involved before the Courts below- (i) whether the construction made by the plaintiff No. 1, which is the subject-matter of the suit, is an encroachment over the land owned by the State Highway Authorities?, and (ii) whether the procedure prescribed under Section 23 of the Bombay Highways Act, 1955 was followed? The Trial Court holds that the construction was on the property of the State Highway Authorities, which was an encroachment, and a notice issued under Section 23 of the said Act was duly served upon the plaintiffs. The lower Appellate Court has reversed the findings of the Trial Court on both these aspects. The ownership claimed by the State Highway Authorities is based upon the notification dated 19-4-1967 issued by the Government of Maharashtra, published in the official gazette, in exercise of the powers conferred by Sections 3, 4 and 6 of the Bombay Highways Act, 1955. The lower Appellate Court has held that the original notification was not produced, and hence the notification produced was not admissible in evidence. 3. The matter was admitted on 20-1-2005 and the substantial questions of law framed, is reproduced below: "Whether the Appellate Court erred in not taking judicial notice of the Govt. Notification dated 19-4-1967?" 4. The lower Appellate Court has held that the original notification was not produced, and hence the notification produced was not admissible in evidence. 3. The matter was admitted on 20-1-2005 and the substantial questions of law framed, is reproduced below: "Whether the Appellate Court erred in not taking judicial notice of the Govt. Notification dated 19-4-1967?" 4. Ms Prabhu, the learned Assistant Government Pleader appearing for the Appellant/State, has relied upon Sections 56 and 57 of the Indian Evidence Act, 1872 and also upon Article 13 of the Constitution of India to urge that the notification is a law, which is governed by sub-section (1) of Section 57 of the Evidence Act. She has relied upon the decision of the Punjab & Haryana High Court in the case of Jit Singh Mohar Singh v. Municipal Committee, reported in 1961 CrLJ 272 , wherein the notification issued under Section 62(10) of the Punjab Municipal Act, 1911 was held to be a law governed by sub-section (1) of Section 57 of the said Act. 5. Shri Dharaskar, the learned counsel appearing for the respondent No. 1/original plaintiff No. 1, has relied upon Section 78 of the Evidence Act regarding proof of other official documents. He submits that the Acts, orders or notifications of the Central Government or the State Government need to be proved in the manner indicated in the said provision, and since the notification in question is a photostat copy, the same could not have been admitted in evidence. According to him, the lower Appellate Court did not commit any error of law in holding that such notification is not admissible in evidence. 6. The decision of the Punjab & Haryana High Court in the case of Jit Singh Mohar Singh v. Municipal Committee, cited supra, relied upon by the learned Assistant Government Pleader clearly holds that the notification issued in exercise of the statutory powers is governed by sub-section (1) of Section 57 of the Evidence Act and judicial notice of it can be taken. Even otherwise, the issuance of such a notification is an exercise of the power of quasi legislation. It shall, therefore, be governed by sub-section (1) of Section 57 of the Evidence Act to take judicial notice. Even otherwise, the issuance of such a notification is an exercise of the power of quasi legislation. It shall, therefore, be governed by sub-section (1) of Section 57 of the Evidence Act to take judicial notice. Section 78 of the Evidence Act relied upon by the learned counsel for the respondent No. 1 deals with the discretion of the Court, and in the absence of challenge to the validity and genuineness of such document, the proof, as required by sub-section (1) of Section 78, is not called for. It has, therefore, to be held that the lower Appellate Court has committed an error in holding that the notification is inadmissible in evidence under sub-section (1) of Section 57 of the Evidence Act to set aside the decision of the Trial Court. Consequently, the State Highway Authority becomes the owner of the suit property. The substantial question is, therefore, answered accordingly. 7. So far as the findings of the lower Appellate Court on merits are concerned, the notice under Section 23 of the Bombay Highways Act, 1955 is required to be issued to the occupier of the premises. I have gone through the copy of the plaint and the evidence of the plaintiff No. 1 himself recorded before the Trial Court. The plaintiff No. 1 admits that his son Ajay was occupying the suit property along with the plaintiff No. 2-Bank of Maharashtra as lessee of the plaintiff No. 1. The notice was issued in the name of the plaintiff No. 1-Vitthal Kolpyakwar, which was received by his son. In view of this, it cannot be said that there was violation of Section 23 of the Bombay Highways Act. The lower Appellate Court has failed to consider the fact that service of notice upon the occupier is the enough compliance of Section 22 of the said Act. 8. It is also an undisputed position on record that the construction was made above the plinth area in the year 1979 without obtaining the permission from the Highway Authorities. This fact is admitted by the plaintiff No. 1 in his own evidence. About the construction made prior to 1967, the evidence is also not sufficient, except the document at Exhibit 89, which was issued in the year 1979. 9. In view of above, the second appeal is allowed. This fact is admitted by the plaintiff No. 1 in his own evidence. About the construction made prior to 1967, the evidence is also not sufficient, except the document at Exhibit 89, which was issued in the year 1979. 9. In view of above, the second appeal is allowed. The judgment and order dated 6-1-2004 passed by the lower Appellate Court in Regular Civil Appeal No. 157 of 2001 is hereby quashed and set aside, and the decree passed by the Trial Court dismissing the suit is restored. No order as to costs. 10. At this stage, the learned counsel for the respondent No. 1/plaintiff No. 1, submits that the judgment delivered by this Court be stayed for a period of four weeks from today. In view of the fact that the judgment delivered by the lower Appellate Court was operating pending the decision of this appeal, this judgment shall remain suspended for a period of four weeks; at the end of which, the interim order shall stand vacated without reference to the Court.