# SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS v. SHIRDI NAGAR PANCHAYAT & ANR

- **Citation:** [2016] 11 S.C.R. 476
- **Court:** Supreme Court of India
- **Decided:** 2016-02-22
- **Case number:** Civil Appeal No. 14016 of2015
- **Bench:** V. Gopala Gowda, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sayyed-ratanbhai-sayeed-d-th-lrs-ors-v-shirdi-nagar-panchayat-anr-31170
- **Pages:** 33

## Headnote

Town Planning - Encroachment - Eviction of occupants -
Rehabilitation I grant of monetary compensation - Internationally
revered seat. of Shirdi Sai Baba at Shirdi in the State of
Maharashtra - Appellants, small scale shopkeepers located in the
vicinity of Shirdi shrine, facing ouster from their shops - Suit filed
by them had been decreed on compromise in the year 1979, securing
their right of rehabilitation in the same locality - Decree however
was construed to be inexecutable by intervening developments -
Fresh rounds of confrontations - Consecutive adjudications
affirmed the displacement of appellants by acknowledging the
·mandate of the relevant Town Planning and Municipal Laws and
the overriding public interest - Held: The emerging situation is one
where private interest is pitted against public interest - Consequence
of the appellants being uprooted from their present sites of business,
would spell an overall dislocation in their lives - That many or all
of them have buildings elsewhere in the locality, assessed to
municipal tax, cannot fully neutralize this fallout - Appellants have
been conducting their business at the present sites for over 45 years
and over the time, h.aJ'.e built up the same with accompanying goodwill
and reputation - Nevertlieless for the cause of paramount public
interest, their eviction is unavoidable - In this premise, the State
and its functionaries directed to identify a siiitable site to
accommodate the appellants - However, in case alternative plot/
site is notfeasible, the appellants would then be entitled to a
lumpsum monetary compensation of Rs.20 lakhs each/or the bigger
shops/stalls and Rs.15 lakhs each for the smaller shops/stalls :-
Maharashtra Regional and Town Planning Act, 1966 - Bombay
Highways Act, 1955 - Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 - Constitution of
India - Art. 300A.
476
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
SHIRD! NAGAR PANCHAYAT & ANR.
Doctrines I Principles - Public trust doctrine -
"res
communious" - Private interest vis public interest - Held: The notion
of public interest synonymises colleetive welfare of the people and
public institutions - Perceptionally health, law and order, peace,
security and a clean environment are some of the areas of public
and collective good where private rights.being in conflict therewith
has to take a back seat- Maxims - "Salus Populi Est._Suprema Lex".
Dismissing the appeals, the Court -
HELD:l. Both the appellants and the respondents/ .
defendants have to share the blame of leaving the compromise
decree unexecuted for over a decade whereafter fresh rounds of
confrontations surfaced leading to the present situation. Be that
·as it may, though there has been no determinance of the
appellants' right, title and interest in the land, except ·that they
are admittedly in continuous possessiort since the year 1970 and
carrying on their business there, understandably, over the years,
they have settled themselves in their plots and are earning their
livelihood from the income of the business dealings. Though the
. build up of facts, since the compromise dec_ree cannot lre
discarded, the contemplated measures .of the responde1,1ts, to
clear the area of the encroachments in public interest and for its
overall development, would' result in the displacement of the
appellants as a compelling necessity. As a corollary, they-.have to
be essentially rehabilitated or adequately compensated bearing
· in mind, the impact of the passage of time on the relevant
perspectives since the date of the compromise decree. [Para 54]
[502-H; 503-A-C]
Mis. Laxmi & Co. v. Dr. Anant R. Deshpande & Another
(1973) 1 SCC 37 : 1973 (2) SCR 172; Dhurandhar
Prasad Singh v. Jai Prakash University and Others
(2001) 6 SCC 534 : 2001 (3) SCR 1129; Ar1111 Lal and
Others v. (Jn ion of India and Others (20IOr 14 SCC
384 : 2010 (13) SCR 1176 - referredllJ;
·
2. The-emerging situation is one where private interest is
pitted a

## Text

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[2016) 11 S.C.R. 476
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SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS.
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v.
SHIRDI NAGAR PANCHAYAT & ANR.
(Civil Appeal No. 14016 of2015)
FEBRUARY 22, 2016
[V. GOPALA GOWDA AND AMITAVA ROY, JJ.]
Town Planning - Encroachment - Eviction of occupants -
Rehabilitation I grant of monetary compensation - Internationally
revered seat. of Shirdi Sai Baba at Shirdi in the State of
Maharashtra - Appellants, small scale shopkeepers located in the
vicinity of Shirdi shrine, facing ouster from their shops - Suit filed
by them had been decreed on compromise in the year 1979, securing
their right of rehabilitation in the same locality - Decree however
was construed to be inexecutable by intervening developments -
Fresh rounds of confrontations - Consecutive adjudications
affirmed the displacement of appellants by acknowledging the
·mandate of the relevant Town Planning and Municipal Laws and
the overriding public interest - Held: The emerging situation is one
where private interest is pitted against public interest - Consequence
of the appellants being uprooted from their present sites of business,
would spell an overall dislocation in their lives - That many or all
of them have buildings elsewhere in the locality, assessed to
municipal tax, cannot fully neutralize this fallout - Appellants have
been conducting their business at the present sites for over 45 years
and over the time, h.aJ'.e built up the same with accompanying goodwill
and reputation - Nevertlieless for the cause of paramount public
interest, their eviction is unavoidable - In this premise, the State
and its functionaries directed to identify a siiitable site to
accommodate the appellants - However, in case alternative plot/
site is notfeasible, the appellants would then be entitled to a
lumpsum monetary compensation of Rs.20 lakhs each/or the bigger
shops/stalls and Rs.15 lakhs each for the smaller shops/stalls :-
Maharashtra Regional and Town Planning Act, 1966 - Bombay
Highways Act, 1955 - Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 - Constitution of
India - Art. 300A.
476
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
SHIRD! NAGAR PANCHAYAT & ANR.
Doctrines I Principles - Public trust doctrine -
"res
communious" - Private interest vis public interest - Held: The notion
of public interest synonymises colleetive welfare of the people and
public institutions - Perceptionally health, law and order, peace,
security and a clean environment are some of the areas of public
and collective good where private rights.being in conflict therewith
has to take a back seat- Maxims - "Salus Populi Est._Suprema Lex".
Dismissing the appeals, the Court -
HELD:l. Both the appellants and the respondents/ .
defendants have to share the blame of leaving the compromise
decree unexecuted for over a decade whereafter fresh rounds of
confrontations surfaced leading to the present situation. Be that
·as it may, though there has been no determinance of the
appellants' right, title and interest in the land, except ·that they
are admittedly in continuous possessiort since the year 1970 and
carrying on their business there, understandably, over the years,
they have settled themselves in their plots and are earning their
livelihood from the income of the business dealings. Though the
. build up of facts, since the compromise dec_ree cannot lre
discarded, the contemplated measures .of the responde1,1ts, to
clear the area of the encroachments in public interest and for its
overall development, would' result in the displacement of the
appellants as a compelling necessity. As a corollary, they-.have to
be essentially rehabilitated or adequately compensated bearing
· in mind, the impact of the passage of time on the relevant
perspectives since the date of the compromise decree. [Para 54]
[502-H; 503-A-C]
Mis. Laxmi & Co. v. Dr. Anant R. Deshpande & Another
(1973) 1 SCC 37 : 1973 (2) SCR 172; Dhurandhar
Prasad Singh v. Jai Prakash University and Others
(2001) 6 SCC 534 : 2001 (3) SCR 1129; Ar1111 Lal and
Others v. (Jn ion of India and Others (20IOr 14 SCC
384 : 2010 (13) SCR 1176 - referredllJ;
·
2. The-emerging situation is one where private interest is
pitted against public- interest. The notion of public interest
synonymises_ collective welfare of the people and public
institutions and is generally informed with tbe ~ictates of public
477
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SUPREME COURT REPORTS
[2016] 11 S.C.R.
A trust doctrine - res communious i.e. by everyone in common.
B·
Perceptionally health, law and order, peace, security and a clean
environment are some of the areas of public and collective good
where private rights being in conflict therewith has to take a back
seat. The latin maxim "Salus Populi-EM-Suprema Lex" connotes
that health, safety and welfare of the public is the supreme in
law. The demand of 'public interest, in the facts of the instant
case, thus deserve precedence. [Paras 55, 56] [503-D-E, G]
"A Selection of Legal Maxims" by Herbert Broom -
referred to.
<-
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3. The consequence of the appellants being uprooted from·
their present sites of business, however, would spell an overall
dislocation in their lives. That many or all of them have buildings
elsewhere in the locality, assessed to municipal tax, cannot fully
neutralize this fallout. The appellants have been conducting their
business at the present sites for over 45 years and u1.1,_derstandably
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over the time, have built up the.same with accompanying goodwill
· and reputation. Their eviction would assnre<Jly eventuate a human
problem. Nevertheless for the cause of paramount. public interest,
their eviction is unavoidable. ·[Para· 61] [506-F-H]
· · ·
4.1. In this precipitable eventuality, il realistic balance of
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the attendant exigencies is the clarion call of justice. In this
premise, having regard to the ensuing consequ,ences qua the
appellants, to start with, the State and its functionaries are directed
,
to undertake, ~n exercise to identify a suitable site to
accommodate the appellants. Even if such a site is not available
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in the immediate proximity .of the land presently in their
occupation, a sincere endeavour would be made to locate a plot
· as· near as possible .thereto. The District Administration in
coordination with the Sansthan and. other authorities, as deemed
necessary in law, would undertake the process. The appellants
·would also cooperate in th~ pursuit and would not delay the
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completion thereof. [Para 62]
[507"A~q
.
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4.2. However, in case the endeavour to identify an
alternative plot does not yield any result inspite of sincere efforts,
the appellants would then be entitled to adequate monetary·
compensation. [Para 63] (507-D]
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
SHIRD! NAGAR PANCHAYAT & ANR.
4.3. It is a matter of record that the ap(lellants occupy two
categories of plots i.e. 16' x 11' and 7' x 11', where trade/business
· is being carried on. Though monetary compensation, ipso facto,.
on a consideration <?f all attendant factors may not be an exact
substitute of the benefits presently enjoyed with the future
prospects, having regard to the permissible ponderables and also
the passage of time in betWeen, a lump Sl!m of Rs. 20 lakhs and
Rs. 15 lakhs each respectively for the bigger and smaller shops/
stalls, would be a 'reasonable palliative to the appellants. The
compCflsation, as indicated hereina~ove, woul~ be payable to the
appellants only if an alternative site is l!Ot feasible. The entire.
process on both counts, hqwever should be completed wjthin a
.
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period of six weeks. The State Government and-the Shri Sai Baba
Sansthan, Shirdi would bear the amount ofcompensation, payable
in equal shares and would deposit the same in the Bombay High
Court within the period of six weeks aforementioned.: [Para 64)
(507-E-H)
.. '
K.T. Plantation Private Limited a~d Another'v. State of
Karnataka (2011) 9 SCC 1 : 2011 (8) SCR 725; Olga
. Tellis & Others v. B01i1bay Municipal Corporation and.
Others. (1985) 3 SCC 545 : 1985 (2) Suppl. sCR 51;
Tukaram Kana Joshi and Others· v. Maharashtra
Industrial Development Corporation and Other~ '(2013)
i SCC 35.3 : 2012 (13) .SCR 29; and K. Krishnp Reddy
v. Special Deputy Collector (1988) 4 -sec 163 : 1988
(2) S,!lppl. SCR 853 - referred to.
Case Law Reference
1973 (2) SCR 172
2001 (3) SCR 1129
2010 (13) SCR 1176
2011 (8) SCR 725
1985 (2) Suppl. SCR 51 .
referred to
referred to
referred to
referred to
referred to
Para25
Para 25
Para 25
Para 57
Para 58
referred to
- Para 59
.2012 (13) SCR 29
"
1988-(2) Suppl. SCR 853
referred to
Para 59
CIVIL APPELLATE JUJUSDICTION': CIVIL APPEAL No.
14016 OF 2015.
479
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SUPREME COURT REPORTS
[2016) 11 S.C.R,
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From the Judgment and Order dated 06.11.2012 of the High Court
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of Judicature of Bombay Bench at Aurangabad in Writ Petition No.
8032 of2012.
WITH
C. A. NOS. 3154, 3155-3157, 3158 OF 2011
C. A. NO. 14017 OF 2015.
Siddharth Luthra, Sr. Adv., Anoopam Prasad, Mohit Kumar Gupta,
Sachin- Kulkarnee, Ms. Vasundhara V, Ms. Manju Jetley, Arvind S.
Avhad, V. K. Sidharthan, Dr. Kailash Chand, Advs. for the Appellants.
Shekhar Naphade, Arvind V. Savant, Sr. Advs., Sanjya Kharde,
Sunil Kumar Verma, Arun R. Pedneker, Preshit Surshe, Sunil Kumar
Verma, Venkata Krishna Kunduru, Nishant R. Katneshwarkar,
Aniruddha P. Mayee, Amo! Nirmal Kumar Suryawanshi, Ms. Chandan
Ramamurthi, Advs. for the Respondents.
The Judgment of the Court was delivered by
AMITAVA ROY, J. - I. The appellants, ostensibly small scale
shopkeepers located in the vicinity of the internationally revered seat of
Shirdi Sai Baba at Shirdi Taluq, Rohata, District Ahmadnagar,
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Maharashtra, face ouster from their sites, being entrapped in the dictates
of events since after their suit had been decreed on compromise in the -
year 1979, securing their right of rehabilitation in the same locality.
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2. The contextual facts encompass the issues in all the appeals
and permit analogous adjudication.
3. The five appeals impeach the consecutive adjudications in
sequential phases affirming the displacement of the appellants by
ackllowledging the mandate of the relevant Town Planning and Municipal
Laws and the overriding public foterest as perceived, their decree bein-g
construed to have been rendered inexecutable by the intervening
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developments. Their possession, however remairrs ·protected by the
-interim order of status-quo granted by the High Court and continued in
the instant proceedings subject to the liberty granted to the respondent~
_Shirdi Nagar_ Panchayat (for short, hereinafter to be referred to as
"Nagar Panchayat/Municipal Council") to take any action in accordance
with law, in connection with the widening of the concerned road or removal
H.
SAYYED ~TANBHAI SAYEED (D) TH. LRS. & ORS. v.
SHIRDI NAGAR PANCHAYAT & ANR. [AMlTAVA ROY, J.]
ofencroachments, in terms of the order dated 13.12.20 I 0 passed in SLP
(C) Nos. 27988 of2010, 29683-29685 of2010 and 28235 of2010.
4. We have heard Mr. Siddharth Luthra, learned senior counsel
for the appellants, Mr. Shekhar Naphade, learned senior counsel for the
Nagar Panchayat/Municipal Council and the }earned counsel for the
State.
5. The genesis of the eventful factual background is traceable to
a one time small village named Shirdi with minuscule population. It rose
to fame and eminence in view of the shrine of Sage Sai Baba, viewed as
a mortal incarnation of the divine and with time became a pilgrimage
centre of worldwide following. Having regard to the increasing number
of devotees thronging for offering oblations, small shops grew around
the temple, catering to the essentials of the worshippe¥s for their offerings
and also their refreshments and conveniences.
6. The plot involved contained in Survey No. I, Hissa No. I A II
. JA/282 ofShirdi Takula Kopargaon, DistrictAhmednagar and situated
near the Sanctum Sanctorum adjacent to Nagar Manmad Road, prior to
30.8.1974, vested in the then Shirdi Gram Panchayat, which had leased
out small parcels of land therefrom to the appellants on rent for carrying
on their trades. The land was taken over by the State through the Circle
Officer, Rahata on 30.8.1974 and as a consequence, though the appellants
were ready and willing to pay the tent, the same was not collected from
November, 1974. Accorcling to them, though by operation oflaw, they
continued to be the tenants under the State Government and were entitled
to retain their possession as before, it transpired with time, as visualised
by them, that joint efforts were on, of the official respondents and the
respondent- Shri Sai Baba Sansthan, Shirdi (for short, hereinafter to be
referred to as "Simsthan") to forcibly evict them from their plot measuring
30 gunthas.
7. Situated thus and being faced with imminent loss of their only
means of livelihood, the appellants instituted Regular Civil Suit No. 600
of 1976, in a representative capacity, on beh~ifof 45 shopkeepers similarly
situated, in the court ofclvil Judge (Sr. Division), Ahmednagar seeking
a declaration that they were lawful tenants of the parcels in their
occupation and also for permanent injunction restraining the defendants
therein from taking over possession of the same, otherwise than in due
course of law. The State of Maharashtra (Revenue Department),
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SUPREME COURT REPORTS
[2016] 11 S.C.R.
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Tehsildar, Kopargaon, DistrictAhmednagar and Shri Saibaba Sansthan
Shirdi, Shirdi, Tai Kopargaon were impleaded as defendants. The
averments made in the suit would demonstrate that the appellants then
had been possessing premises of sizes ranging from 10' x 712' and 12'
. x 12'.
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8. Th.e suit eventually got decreed on compromise on 20.8.1979.
As the contents of the order recording the compromise would attest, out
of I 01 shops mentioned in schedule 'A' of the suit, which had been
taken over by the State Government from the Panchayat and handed
over to the Sansthan, 45 shops in occupation of the appellants were
marked in Schedule 'B ', which in terms of the compromise were to
remain thereon. Qua the remaining 56 shops, the Government was to
provide accommodation in the land in Survey No. 170. Under the
compromise, it was agreed thafthe Sansthan would construct shops
measuring 16' x 11" (hotel) and 7' x 11' (flower, Prasad, photo etc.) in
terms of the site plan that was accepted by the parties. The Sansthan
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was to start the construction of the building on the land in occupation of
the appellants and to complete the same within one year from taking
possession thereof. It was agreed in categorical terms that during the
period of construction, the 45 shops of the appellants would have to be
temporarily accommodated in the triangular plot located towards the
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west of the proposed building as shown in the map/plan. The Sansthan
was obliged in terms of the compromise deed, to accommodate the-45
shopkeepers in the said triangular plot before starting the construction of
the prcwosed building. The appellants were also under an obligation to
move to the said plot without any objection spas to enable the Sansthan
to initiate the construction for the proposed bui !ding. As further agreed,
31 shopkeepers of the remaining 56 shops were to be accommodated in
the existing equal number of shops constructed by1he Sansthan in the·
land of Survey No. 170 on the western side of the Nagar Kopargaon
Road and that the allotment was to be made on the basis of lottery. The
remaining 25 shopkeepers, after such allotment, were also to be provided
space in the land of the same survey number by resorting to lottery.
Under the compromise, after the completion of the construction of the
shops, the allotments were to be made by lottery system to the 45
shopkeepers i.e. the appellants. The triangular space in which the
appellants were to be temporarily rehabilitated was clearly identified by
the parties. The rate of rent to be paid by them and the other stipulations
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
pertaining to the continuing lease were also enumerated in the
compromise. Resultantly, a decree was passed by the trial court in the
same terms on 20.8.1979. The said decree has since remain unchallenged
and is thus final and binding on the parties.
9. Years that rolled by thereafter witnessed a passive and inert
disposition of both the parties, visibly reconciled to the existing and
continuing state of affairs. Undisputedly, the Sansthan did neither arrange
for the accommodation of the appellants in the triangular plot as agreed
upon nor did take any initiative for the construction of the shopping
complex at the site oC"cupied by them'. It was as lat~ as on 19.2.1990,
that the Saristhan did file an execution petition before the trial court
alleging that the appellants/decree-holders had not handed over the suit
site to it to enable the constructional activities. The appellants too, in
response, filed an.execution petition being R.D. No. 5of1990, accusing
therespondents of their negligent and irresponsible inaction and failure
to comply with the decree.
10. While the matter rested at that, a "Development Plan" ofShirdi
was sanctioned by Notification No. D.P. Shirdi/TPV-IV/7334 dated
15 .12.1992 of the Director of Town Planning, Maharashtra State, Pune
(hereinafter referred to as the development plan) and enforced it on and
from 25.2.1993. Thereby an area of30 gunthas identified as site No. 13
in Survey No. 1 (as involved in the instant proceedings) was shown to
be reserved for garden. As the records testify, by Notification No. TPS1695/996/CR-83/97 /UD-9 dated 27.3.2003 of the Urban Development
Department, Government of Maharashtra, this 30 gunthas ofland in site
No. 13 was bifurcated into two equal parts, northern half measuring 15
gunthas, shown reserved for "Garden" as site No. I 3A and the remaining
·southern half of 15.gunthas shown as reserved for "Shopping Centre"
as site No. 13B. The notification mentioned that the modification was
in terms of the proposal submitted by the Nagar Panchayat which had
since been upgraded as Municipal Council by the State Gazette
Notification dated 16.6.1999. The Notification also clarified that the
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Nagar Panchayat in !aying such proposal, had complied with the formalities
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to this effect a£ stipulated by the Maharashtra Regional and Town
Planning Act, 1966 (for short, hereinafter to be referred to as "Act 1966")
and was approved by the Director ofTown Planning, Maharashtra State,
Pune. In terms of this reorientation,the appellants were in occupation
of plot No. I 3A; as referred to in the above Notification.
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SUPREME COURT REPORTS
f20161 II S.C.R.
11. In 'the meantime, at the instance of the Nagar Panchayat, the
shops constructed by it on the government land, Survey No. 170 were
demolished. Consequently, the arrangement of adjusting 31 shopkeepers
out of 56 batch did not fructify. The others were also not allotted any
open plot by drawing lots as was contemplated in the compromise decree.
As the flow of events would testify, the Executing Court on 19 .12.2003
directed maintenance of status-quo of the subject matter of the execution
proceedings in view of the ongoing demolition drive resorted to by the
State and the apprehension expressed by the appellants to suffer the
same fate. Eventually, the Executing Court by order dated 21.5 .2004
rendered in RD No. 5 of 1990, held that the compromise decree was
binding and executable, the facts in the interregnum notwithstanding and
that the defendants/judgment debtors were bound to provide temporary
accommodation to the appellants till completion of the ~onstruc;tion work
in the suit land and consequently restrained them i.e. the defendants/
judgment debtors from removing or demolishing the shops of the appellants
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till their temporary adjustment in the triangular plot in terms ofthe decree.
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12. This view was taken notwithstanding the plea on behalf of the
defendants/judgment debtors, that in the face of the development plan
and also the proposed widening of the adjacent Palkhi Road within the
limits of the Nagar Panchayat, for which a process was afoot for
acquisition ofland and the overall developmental activities in the area to
meet 'the heavy rush of devotees, their convenience and safety, the decree
had become inexecutable with time.
13. Being aggrieved, the State of Maharashtra filed Writ Petition
(C) No. 5839 of2004 in which the Tehsildar, Rahata in his affidavit-inrejoinder did aver that the land at site No. 13 was vested in the State
Government and that the Nagar Panchayat had no authority to develop
the same without its approval and permission. Be that as it may, by
order dated 31.7.2007, the High Court remanded the matter for fresh
consideration by the Executing Court, by setting-aside the order dated
21.5.2004 granting injunction to the appellants. The Executing Court
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following the remand, vide order dated 9 .3 .2009, returned a finding that
the decree had become inexecutable in the face of the irreversible
intervening events. After an exhaustive evaluation of the evidence, both
oral and documentary, as adduced before it, it held that in view of the
Shirdi town development plan, as well as the precepts of the Bombay
Highways Act, 1955 (for short, hereinafter to be referred to as "Highways
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Act") prescribing, inter alia, the margin of clearance of the control line
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
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SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
as well as the relevant provisions of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 (for short,
hereinafter to be referre~ to as "Act 1965") as well as Act 1966. along ·
with the initiatives taken in· terms thereof, the decree had become
inexecutable. It underlined as well that with the phenomenal rise i.n the
number of devotees to the temple and the consequential mounting
challenges to the administration like congestion, traffic jams etc. and the
accompanying aspects of safety and security of the visiting worshippers
in particular and the public in general, it was not feasible to construct a
shopping complex as earlier comprehended. On the other hand, it was
essential in public interest to implement the development plan which
included, ~mongst others, widening of the adjacent Palkhi Road by
removing encroachments thereon as.reported. It noticed as well that
the triangular plot as well as the site earmarked for the shopping complex
did come within the prohibited zone of the control line prescribed by the
Highways Act for which no copstruction thereon was permissible as
envisl!ged by the compromise de.:ree.
14. Being highly aggrieved by this determination, the appellants in
batches, filed writ proceedings before the High Court which after an
elaborate analysis of the run up of facts concluded that in the singular
attendant facts, the decree had become inexecutable on account of the
failure of both the parties to perform their mutual obligations. The High
Court, howevervide order dated 5.7.2010 in categorical terms held that
the appellants were neither encroachers nor intruders on the land in
occupation. It also noticed that meanwhile the Sansthan had deposited
approximately Rs. 3 crores for acquisition of land by the State
Government, to shift the shopkeepers from the proximity of the temple
to facilitate the implementation.of the development work and at the same
time rehabilitate them to the extent possible. The High Court-with a
view to strike·a balaRce between the two competing interests and also
to ensure that the shopkeepers are suitably compensated directed, as a
rough and ready measure to grant compensation to the shopkeepers @
Rs. 3 lakhs each to those having bigger shops like Hotel, sweet-meat
shops etc.) and Rs. 2 lakhs each to those of smaller shops i.e .. Flower
Vendors, Essence Vendors etc. The State as well as the Sansthan were
directed to bear the amount of 'compensation in equal shares to be
deposited within a period of six months. In computing the rate of
compensation, the High Court also took note of the sizes of the two
categories of shops, 16' x 16' (big) and 7' x 11' (small).
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15. Though an appeal was preferred against this verdict, it was
eventually withdrawn, whereafter C.A. No. 3154 of 2011 had been
instituted before this Court. It is worthwhile to record that this Court by
order dated 1.10.2010 directed maintenance of status-quo. Subsequent -
thereto, by order dated 18.10.20 JO, the Sansthan as well as the State
Government were required to explore the possibility of identifying a
suitable alternative plot even away from the existing plot, for the purpose
of construc;tion of shops for the.appellants without prejudice to their
contentions. While noticing that meanwhile, the Sansthan had deposited
a sum of Rs. 2.19 crores in terms of the order of the High Court dated·
5.7.2010, it extended the interim protection earlier granted. ~y order
dated 13.12.20 l 0 however, this Court responding to the submissions made
on behalf of the Shirdi Municipal Council to the effect that it was not a
party to the COll)p~omise decree and that the interim order was acting
as an impediment for its initiatives to widen the road and to remove the
encroachments in accordance with law, clarified that the order of status
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quo had been granted vis-a-vis the Sansthan and the State Government
and that ifthe Municipal Councitdecided to take any action in accordance
with law for the purpose of wicte_ning of road or removal of
encroachments, the same (interim order) would not come in the way of
such action being taken in accordance with law. Later, by order dated
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28.2.2011, the order of status-quo was allowectto continue subject to the
clarification as above.
16. Following this clarification, as aforestated, the Nagar
Panchayat issued a public notice being Outward No. NP/Co1'lst/KV-l l/
75/2011 dated 11.4.2001 under Sections 42, 45, 52 and 53 of Act 1966
and under Sections J 79,180,187 and 189 of Act 1965 being one directed
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to the 45 shopkeepers in Schedule 'B' in R.D. No. 5 of 1990 i.e. the
appellants, intimating them that their sheds on the land referred to therein
were illegal constructions used for business purposes. Referring also to
the orders dated 13.12.2010 and 28.2.2011 passed by this Court as
above, permitting the Nagar Panchayat to pursue its initiatives for removal
of encroachments and widening of road in accordance with law, it was
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elaborated further that the shops of the appellants, in terms of the reports
submitted by the Deputy Director, Town Planning Department, Nasik,
pursuant to the order of the High Court in W.P. (C) No. 583 of 2004,
were coming within 9 meters of the Palkhi Road. It was mentioned as
well, that the constructions of the appellants were intruding on the fifteen
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meters wide road towards the temple and for this, the development scheme
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of the road could not be implemented. It was highlighted that in view of
such impediments, the devotees and the public at large were being
seriousJy inconvenienced, ~hile tl\king the N agar Manmad Road towards
the temple. While stating as well, that the plot No. 13A, in terms of the
development scheme, was reserved for garden and thatthe construction
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of the appellants have adversely impacted upon the said scheme, it was
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underlined as well that encroachments by them, were also within 37 ·
meters from the centre of the State Highway No. I 0, Nagar Manmad
Road, in violation of the construction line and control line. The notice
specified that commercial use ofland within the said zone was prohibited.
The appellants were called upon thereby, to remove the illegal and
unauthorized constructions in violation of the provisions of Act 1965 and
Act 1966 within 30 days of the receipt of the notice failing which it was
conveyed, that the same would be demolished by the Nagar Panchayat..
17. The appellants against this notice filed a suit being RCS No.
139 of2011 in the court of Civil Judge (Sr. Division), Kopergaon, seeking
annulment thereof and perpetual injunction against the Nagar Panchayat
and the State as defendants. The prayerfor temporary injunction though
refused by the trial court, the appeal before the District Judge-II was
allowed and by order dated 11.5.2011, the Nagar Panchayat was
restrained, by an ad-interim injunction from interfering with the.appellants'
possession of the suit property.
18. The Nagaf Panchayat in its tum approached the High Court
with a writ petition in which by order dated 9.6.2011, the order of adinterim injunction was maintained but the trial court was directed to decide
the applicatiofffor injunctio!1 on its' own merits within a period of one
. month. The trial court by order·dated 17.10.2011 rejected the application
for temporary injunction.holding that the· appellants had failed to establish
a prima facie.case or balance of convenience in their favour though
irreparable loss was not unlikely. The appeal filed by the appellants
against this detennination failed on_25.9.2012. The First Appellate Court
in dismissing the same took note, inter alia, of the pendency of the C.A.
No. 3154 of 2011 on the related issues and observed that to decide the
same, evidence would be necessary and required the trial court, to address
the same accordingly.
19. Being aggrieved, the appellants turned to the High Court again
with W.P. (C) No. 8032 of2012, impeaching the orders of the courts
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below declining interim injunction and also seeking a restraint on the
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Nagar Panchayat and the State by interdicting them from demolishing
their shops and from interfering with ·their peaceful possession of the
suit property.
20. The High Court, by the decision impugned in Civil Appeal No.
14016of2015, on a survey of the entire conspectus of faets, did reiterate
that the appellants were not encroachers on their land in their occupation
and that their entry thereupon was legal: While recording that they had
been occupying the same with their small shops/kiosks since 1970, it
was, however noted that the decree with time 'had become inexecutable.
It also recorded that meanwhile, the development plan of the Shirdi Town
had been notified on 15.12.1992 and that the suit site No. 13A had been
reserved for 'garden' and 138 for 'shopping complex'. It was noticed
as well that, the appellants' shops were located on site No. 13A. While
tracing the litigational route and the findings recorded in the earlier
proceedings, based on contemporaneous records and noticing the fact
that the area comes within the control line and that in terms of the
development plan, no construction can be allowed on the site reserved
for 'Garden', the High Court declined to protect the appellants' structures.
It held that the Nagar Parichayat/Municipal Council, was a planning
authority entrusted with the statutory duty to implement the development
plan and recalled that in the earlier proceedings, directions had been
issued to the State Government and the Sansthan to pay compensation
for their eventual ouster. That this Court by order dated 13.12.20 I 0 had
granted liberty to the Municipal Council to proceed with its project of
wide,ning the road and clear the encroachments in accordance with law
was referred to as well.
21. Section 56 of the Act 1966 was adverted to also to record that
the same empowered the planning authority to direct discontinuance of
a particular use ofland or any building or order removal thereof, having
regard to the development plan, if construed to be expedient in the interest
of proper planning. That the steps contemplated to widen_ the Ahmad
Na gar Manmad Highway No. 10 and also the roads leading to the temple
were in public interest was emphasized. It was thus concluded that the
impugned notice had been issued for removal of the structures of the
appellants to espouse a public cause. While dismissing the petition, the
Nagar Panchayat/Municipal Council was restrained from evicting the
appellants for a period of three months.
22. In the above chequered and contentious backdrop, Mr. Luthra
has assertively argued that the compromise decree dated 20.8.1979 being
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SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
final and binding on the parties, the appellants have a vested right to
continue at their sites and thus the contemplated action of evicting them
therefrom on the purported plea of intervening events, is palpably illegal
and unauthorized besides being unreasonable, unfair and unjust. As on
the date of the decree, as well as when the execution thereof was applied
for in the year 1990, neither the development plan nor the control line
under the Highways Act was in existence, the defence of inexecutability
thereof is fallacious and the finding to the contrary recorded in the earlier
proceedings is patently unsustainable in law and on facts, he urged.·
Learned senior counsel argued that the notification contemplating the
control line and the development plan being dated 9.3.2001 and 27.3.2003
respectively, these subsequent prescriptions, though statutorily endorsed
cannot be invoked with retrospe9jive effect, thereby rendering the
compromise decre.e passed more than two decades prior thereto and
the rights conferred thereby, non est. Tliis is more so as the respond~nts/
defendants in the suit had undertaken-in terms of the accepted site plan,
to rehabilitate the appellants in the proposed shopping complex in
recognition of their rights as lawful tenants of_th~plo1s in their occup~tion,
he maintained. Mr. Luthra insisted, that as concurrently held in the
earlier proceedings, the appellants· are neither encroachers nor intruders
nor unauthorized occupants ofthe suit property, a finding unopposed and
unchallenged' as on date, and thus the initiative to oust them, ~nder the
garb of the development plan, the statutes iμvoked and the public interest,
is not only in violation of their fundamental rights under Articles 14, 19
. and 21 of the Constitution oflndia, but also lacks in bona fide. As the
situation as it obtains at the present, is the making of the indifferent and
careless inaction on the part of the State Government and the Sansthan
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execution of the decree, their proposed ouster, if permitted to be.,
actualized, would not only result in irreparable loss and injury to them,
· but also tantamount to allowing the respondents/judgment debtors to. reap
the benefits of their own wrong, he urged. Mr. Luthra maintained tl}at
the impugned notice dated 11.4.2011 is incompetent and incomplete not
bei_ng under the Highways Act as well as Sectio1156 of the Act 1966 and
is thus liable to be quashed on this c.ou11t alone. Apart from contending
that the Municipal council being not th'e owner of the land involved,
lacks in authority to issue the impugned notice, collusion between the
State Government, Municipal Council and the Sansthan has also been
pleaded, rendering the repugned action illegal and non est bona fide.
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23. In response, while the learned counsel for the State endorsed
the initiatives of the respondents to be in furtherance of public interest,
Mr. Naphade, learned senior counsel for the Nagar Panchayat/Municipal
Counc_tl urged that the Nagar Panchayat not being a party to the suit, is
not bound by the compromise decree. He rii~intained that the relief
sought for by the appellants, being in the form of preventive injunction, it
is in essence discretionary in nature and ought not to be granted after
the same having been declined.consistently by the courts in the earlier
proceedings after a thorough and analytical evaluation of the facts and
law involved. As the appellants have failed to demonstrate, any prima
face case against the Nagar Panchayat, and the relief of injunction against
it is also incomprehensible on the touchstone of the balance of
convenience and irreparable loss, no interference by this Court in the
exercise of its jurisdiction under Article 136 of the Constitution ofindia·
is warranted. The learned senior counsel has emphatically' argued, that
in absence of any evidence of the claimed tenancy of the appellants
and their.constructions on the suit land with the permission either of the
State Government or the Municipal Council in existence at the relevant
.point of time, there is no semblance or' any right in them to retain the
possession thereof. 'According to Mr. Naphade, the appellants at best
can b~ construed to be licensees sans any·vested right and by no means
can r~ist the steps taken by the Nagar Panchayat/Municipal Council, .
as a planning authority under the relevant legislations in discharge of its
statutory functions. The learned senior counsel has asserted that in any
view of the matter, the appellants' perceived rightto occupy the land has
to make way for the overwhelming public interest manifested by the
impelling necessity of implementing the development plan, by removing
the encroachments and unauthorized structures to ensure the safety,
security and convenience of the devotees in particular and the citizenry
in general. As the encroachments and the unauthorized structures have
proved to be potential impediments in the free access of the visiting
worshippers to the temple apart from being growingly haza1"dous, those
~re urgently required to be removed, he maintained. Jn buttressal of his
assertions, the learned senior counsel has referred to the relevant
provisions of Act 1965, Act 1966 and the Highways Act. He urged that
the .statutory provisions having been enacted tq secure the underlying
objectives of the respective statutes, these have to be accorded an
overriding effect, lest the same are rendered redundant. With reference
to the additional documents filed on behalf of the respondents, learned
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v.
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senior counsel also sought to impress upon us, that the appellants are
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really not petty shopkeepers but are instead sufficiently well off and
own RCC buildings assessed to tax by the Nagar Panchayat.
24. The learned senior counsel has further urged that the shops
ofl:he appellants encroach upon the Palkhi Road as well as the adjoining : _
road of widths 9 meters and.15 meters respectively, leading to the temple.
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which are hindering the implementation of the development plan. Further,
their constructions also come within the prohibited area of3 7 meters of ·
the control line from the Ahmad Nagar Manmad Hfghway No. 10 under
the Highways Act, he urged. According to Mr. Naphade, except those
of the appellants, all other illegal constructions on the Palkhi Road and in
conflict with the development plan as well as the provisions of the statutes
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involved, have since been removed by the Nagar Panchayat/Municipal
Council. He submitted that the development plan issued in the year
1992 with later modifications have since been finalized and notified and
that the Nagar Panchayat/Municipal Council as the planning authority is
duty bound to implementthe same.
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25. The decisions of this Court "in Mis. L(lxmi & -Co. vs. Dr.
An"nt R. Desltp"nde & Anotlter (1973) 1 SCC 3 7, Dh ur(lndlwr
·. Pr"s"d Singlt vs. J"i Pr"k"sh University (Ind Others (2001) 6 SCC
534 and Arun L"l and Others vs. Union of India (In<! Others (2010)
14 SCC 384 have been cited to reinforce the above.
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26. Mr.