Case Note & Summary
The State of Maharashtra, through the Collector, Chandrapur, filed a second appeal against the judgment of the lower Appellate Court which had decreed the suit in favor of the plaintiff, Vitthal s/o Pandurang Kolpyakwar, and the Bank of Maharashtra. The original plaintiffs had filed Special (State) Civil Suit No.14 of 1996 seeking a declaration that certain portions of the plaintiff No.1's construction (marked V, VI, VII, VIII in the map) were not encroachments on the road, and for a permanent injunction restraining the defendant from demolishing the structure, along with damages of Rs.60,000. The Trial Court dismissed the suit on 23-10-2001, holding that the construction was on the property of the State Highway Authorities and that a notice under Section 23 of the Bombay Highways Act, 1955 was duly served. The lower Appellate Court reversed this decision on 6-1-2004, leading to the present appeal. The two issues before the courts were whether the construction was an encroachment on state highway land and whether the procedure under Section 23 of the Act was followed. The State claimed ownership based on a notification dated 19-4-1967 issued under Sections 3, 4, and 6 of the Bombay Highways Act, 1955. The lower Appellate Court held that the original notification was not produced and that the State failed to prove ownership. The High Court found that the lower Appellate Court erred in ignoring the certified copy of the notification, which was sufficient to establish ownership. The court held that the notification under the Act is a public document and its certified copy is admissible. The appeal was allowed, the judgment of the lower Appellate Court was set aside, and the Trial Court's decree was restored.
Headnote
A) Property Law - Encroachment on State Highway - Ownership by Notification - The State's ownership of highway land can be established through a notification under Sections 3, 4, and 6 of the Bombay Highways Act, 1955, without requiring a title deed. The lower Appellate Court erred in holding that the original notification was not produced, as the certified copy was sufficient. (Paras 2-3) B) Civil Procedure - Second Appeal - Substantial Question of Law - The failure of the lower Appellate Court to consider the notification under the Bombay Highways Act, 1955 raises a substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908. (Para 3)
Issue of Consideration
Whether the construction by the plaintiff is an encroachment on state highway land and whether the procedure under Section 23 of the Bombay Highways Act, 1955 was followed.
Final Decision
The appeal is allowed. The judgment and decree passed by the lower Appellate Court are set aside, and the decree passed by the Trial Court dismissing the suit is restored.
Law Points
- Bombay Highways Act
- 1955
- Sections 3
- 4
- 6
- 23
- Encroachment
- Ownership by Notification
- Burden of Proof
