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REPORTABLE            IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

        CIVIL APPEAL NO.  14016   OF 2015

SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS.                    .…

APPELLANTS VERSUS

SHIRDI NAGAR PANCHAYAT & ANR.           ...RESPONDENTS

    WITH CIVIL APPEAL NO. 3154 OF 2011

SAYYED RATANBHAI SAYEED (D) TH. LRS. & ANOTHER     …APPELLANTS

VERSUS

THE TAHASILDAR, RAHATA AND  OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NOS. 3155-3157 OF 2011

GANGADHAR KASHINATH TURKANE &  ORS. ETC. ..APPELLANTS

VERSUS

THE STATE OF MAHARASHTRA & ORS. ETC.        ..RESPONDENTS

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WITH

CIVIL APPEAL NO. 3158 OF 2011

KRUSHNARAO (D) THR. L.R.                      .…APPELLANT

VERSUS

THE TAHASILDAR, RAHATA AND ORS.      ...RESPONDENTS

WITH

CIVIL APPEAL NO. 14017  OF 2015

PRADEEP AND ANOTHER                   .…APPELLANTS

VERSUS

SHIRDI NAGAR PANCHAYAT & ANR.           ...RESPONDENTS

J U D G M E N T  

AMITAVA ROY,J.

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.

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 acknowledging the mandate of the relevant Town  

Planning  and  Municipal  Laws  and  the  overriding  public  

interest  as  perceived,  their  decree  being  construed  to  have  

been rendered inexecutable by the intervening developments.  

Their  possession,  however remains 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 of encroachments,

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in terms of the order dated 13.12.2010 passed in SLP (C) Nos.  

27988 of 2010, 29683-29685 of 2010 and 28235 of 2010.

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 learned 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  

worshippers for their offerings and also their refreshments and  

conveniences.

6. The plot involved contained in Survey No. 1, Hissa No. 1A  

1/1A/2B2 of Shirdi Takula Kopargaon, District Ahmednagar  

and situated near the Sanctum Sanctorum adjacent  to Nagar

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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 rent,  

the same was not collected from November, 1974.  According  

to them, though by operation of law, 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 “Sansthan”) 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  

behalf of 45 shopkeepers similarly situated, in the court  of  

Civil Judge (Sr. Division), Ahmednagar seeking a declaration

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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),  Tehsildar,  Kopargaon,  

District  Ahmednagar  and  Shri  Saibaba  Sansthan  Shirdi,  

Shirdi,  Tal  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 7 ½’  and 12’ x 12’.

8. The  suit  eventually  got  decreed  on  compromise  on  

20.8.1979.   As  the  contents  of  the  order  recording  the  

compromise  would  attest,  out  of  101  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

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Survey No. 170.  Under the compromise, it was agreed that the  

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 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 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  

proposed  building.   The  appellants  were  also  under  an  

obligation to move to the said plot without any objection so as  

to  enable  the  Sansthan  to  initiate  the  construction  for  the  

proposed  building.  As further agreed, 31 shopkeepers of the  

remaining 56 shops were to be accommodated in the existing  

equal number of shops constructed by the  Sansthan in the

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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 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

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appellants in the triangular plot as agreed upon nor did take  

any initiative for the construction of the shopping complex at  

the site occupied by them.  It was as late as on 19.2.1990,  

that the Sansthan 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. 5 of 1990, accusing the respondents of  

their negligent and irresponsible inaction and failure to comply  

with the decree.

10. While the matter rested at that, a “Development Plan” of  

Shirdi  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 of  30 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.  TPS-1695/996/CR-83/97/UD-9  dated

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27.3.2003  of  the  Urban  Development  Department,  

Government of Maharashtra, this 30 gunthas of land in site  

No.  13  was  bifurcated  into  two  equal  parts,  northern  half  

measuring 15 gunthas, shown reserved for “Garden” as site  

No. 13A 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  Nagar  Panchayat  in  laying  such proposal,  

had complied with the formalities to this effect as 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  of  Town  Planning,  Maharashtra  

State,  Pune.   In terms of  this reorientation,  the appellants  

were in occupation of plot No. 13A, as referred to in the above  

Notification.  

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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  construction  work  in  the  suit  land  and  consequently  

restrained  them i.e.  the  defendants/judgment  debtors  from  

removing or demolishing the shops of the appellants till their

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temporary adjustment  in the triangular plot in terms of the  

decree.

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 of land 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 of 2004 in which the Tehsildar, Rahata  

in his affidavit-in-rejoinder 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.

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The Executing Court 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  Act”)  prescribing,  inter  alia,  the  

margin of clearance  of the control line as well as the relevant  

provisions  of  the  Maharashtra  Municipal  Councils,  Nagar  

Panchayats  and Industrial  Townships Act,  1965 (for  short,  

hereinafter to be referred 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 in 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

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the  other  hand,  it  was  essential  in  public  interest  to  

implement  the  development  plan  which  included,  amongst  

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  

construction  thereon  was  permissible  as  envisaged  by  the  

compromise decree.

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,  

however vide 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

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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 balance 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).   

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

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record   that  this  Court  by  order  dated  1.10.2010  directed  

maintenance  of  status-quo.   Subsequent  thereto,  by  order  

dated  18.10.2010,  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 construction 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.   By  order  dated  13.12.2010  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  

compromise 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 quo had been granted vis-à-vis the  

Sansthan and the State Government and that if the Municipal  

Council decided to take any action in accordance with law for  

the purpose of widening of road or removal of encroachments,

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the same (interim order) would not come in the way of such  

action being  taken in  accordance  with  law.  Later,  by  order  

dated  28.2.2011,  the  order  of  status-quo  was  allowed  to  

continue subject to the clarification as above.

16. Following  this  clarification,  as  aforestated,  the  Nagar  

Panchayat  issued  a  public  notice  being  Outward  No.  

NP/Const/KV-11/75/2011  dated  11.4.2001  under  Sections  

42,  45,  52  and  53  of  Act  1966  and  under  Sections  

179,180,187 and 189 of Act 1965 being one directed 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 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

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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  

meters  wide  road  towards  the  temple  and  for  this,  the  

development scheme 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  seriously  

inconvenienced, while taking the Nagar 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  

that  the  construction  of  the  appellants  have  adversely  

impacted upon the said scheme, it was underlined as well that  

encroachments by them, were also within 37 meters from the  

centre of the State Highway No. 10, Nagar Manmad Road, in  

violation of the construction line and control line.  The notice  

specified that commercial use of land 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

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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 of 2011  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  prayer  for  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 Nagar  Panchayat  in  its  turn approached the  High  

Court with a writ petition in which by order dated 9.6.2011,  

the order of ad-interim injunction was maintained but the trial  

court was directed to decide the application for injunction 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

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favour  though irreparable loss was not unlikely.  The appeal  

filed  by  the  appellants  against  this  determination  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 of 2012, impeaching the orders of  

the courts below declining interim injunction and also seeking  

a  restraint  on  the  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. 14016 of 2015, on a survey of the entire conspectus of  

facts, 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,

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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 13B 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 Panchayat/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 13.12.2010  

had granted liberty to the Municipal Council to proceed with

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its project of widening 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 of land  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  Nagar  

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 final and binding on the parties, the  

appellants have a vested right to continue at their sites and

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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  retrospective  

effect, thereby rendering the compromise decree passed more  

than  two  decades  prior  thereto  and  the  rights  conferred  

thereby,  non  est.   This  is  more  so  as  the  

respondents/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

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lawful tenants of the plots in their occupation, he maintained.  

Mr. Luthra insisted, that as concurrently held in the earlier  

proceedings,  the  appellants  are  neither  encroachers  nor  

intruders nor unauthorized occupants of the suit property, a  

finding unopposed and unchallenged as on date,  and thus the  

initiative to oust them, under the  garb of  the development  

plan, the statutes invoked and the public interest, is not only  

in violation of their fundamental rights under Articles 14,19  

and 21 of the Constitution of India,   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  in  particular,  the  

appellants not being responsible for the delay in the 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  that  the  

impugned  notice  dated  11.4.2011  is  incompetent  and  

incomplete  not  being  under  the  Highways  Act  as  well  as

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Section 56 of the Act 1966 and is thus liable to be quashed on  

this  count alone.  Apart from contending that the Municipal  

council  being  not  the  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.

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  Council  urged  

that the Nagar Panchayat  not being a party to the suit,  is not  

bound by  the  compromise  decree.   He maintained 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

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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 of India 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  of  any  right  in  them  to  retain  the  possession  

thereof.  According to Mr. Naphade, the appellants at best can  

be construed to be licensees  sans any vested right and by no  

means  can  resist  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 right to occupy the land  

has  to  make  way  for  the  overwhelming  public  interest  

manifested  by  the  impelling  necessity  of  implementing  the

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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 hazardous, those are urgently required to be  

removed, he maintained.  In 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  to  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  senior  counsel  also  

sought to impress upon us, that the appellants are really not  

petty shopkeepers but are instead sufficiently well off and own  

RCC buildings assessed to tax by the Nagar Panchayat.

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24. The learned senior  counsel  has further  urged that  the  

shops of the appellants encroach upon the Palkhi Road as well  

as  the  adjoining  road  of  widths  9  meters  and  15  meters  

respectively,  leading to the temple  which are hindering the  

implementation  of  the  development  plan.   Further,  their  

constructions  also  come  within  the  prohibited  area  of  37  

meters  of  the  control  line  from the  Ahmad Nagar  Manmad  

Highway 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  

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 implement the same.

25. The decisions of this Court in M/s. Laxmi & Co. vs. Dr.   

Anant  R.  Deshpande  &  Another (1973)1SCC  37,  

Dhurandhar Prasad Singh vs. Jai Prakash University and

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Others (2001)6SCC 534 and Arun Lal and Others vs. Union  

of India and Others   (2010)14SCC 384  have been cited to  

reinforce the above.

26. Mr.  Luthra,  in  his  rejoinder,  while  reiterating  his  

assailment to the decisions impugned, has laid before us the  

documents  indicating  the  alternative  sites  suggested by  the  

appellants for their rehabilitation, in case their continuance at  

the present site is disapproved by this Court.  

27. We  have  noted  the  debated  contours  of  the  issues  

involved.  The discord that  germinated  with the suit by the  

appellants apprehending their ouster from the plots in their  

occupation, over the years has culminated  in the notice dated  

11.4.2001 under the Act 1965 and Act 1966 issued by the  

Chief Officer, Shirdi Nagar Panchayat, Shirdi requiring them to  

remove  their  perceived  illegal  constructions  raised  and  

sustained   in  violation  of  the  relevant  provisions  of  these  

legislations and also repugnant to the control line delineated  

by  the  Resolution  No.  RBD-1081/871  dated  9.3.2001  

published under the Highways Act. To recall, in terms of the

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compromise  decree,  the  appellants-45  shopkeepers  in  

occupation of the land in Schedule B as mentioned therein ,  

were permitted to continue thereat and the Sansthan was to  

accommodate them in the adjacent triangular plot, to obtain  

vacant  possession  of  the  Schedule  B  land  for  raising  a  

shopping complex.   The Sansthan thereafter  was obliged to  

rehabilitate  the  appellants  in  the  new  shopping  complex.  

Admittedly  the  proposed  shopping  complex  was  not  

constructed.  The appellants also continued to occupy their  

plots  in  the  aforementioned  Schedule  B  land.   The  Nagar  

Panchayat/Municipal Council had not been impleaded in the  

suit as defendant, and thus was not a patty to the compromise  

decree.   That  the  land  in  question  vests  in  the  State  

Government, is a matter of record.   

28. Be that as it may, it was only in the year 1990 that for  

the first time, the Sansthan filed an execution petition before  

the trial court  alleging that the appellants had not vacated  

their plots.  As a sequel, the appellants  also filed an executing  

petition  No.  RD  5  of  1990  imputing   disobedience  of  the  

precepts  of  the  compromise  decree  by  the  Sansthan.

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Noticeably for over a decade, the appellants had preferred a  

situation of status quo and did not take any initiative prior  

thereto for the execution of the decree, for obvious reasons.  

After a spate of litigations, the High Court vide its ruling dated  

5.7.2010, in reiteration of the determination of the executing  

court made on  9.3.2009, did affirm that with the intervening  

developments,  the  decree  had become inexecutable.   In  the  

attendant  facts  and  circumstances,  it  however  computed  

compensation @ Rs. 3 lakhs and Rs. 2 lakhs each for the big  

and  small  shopkeepers  respectively  as  assessed  by  it  and  

directed the Sansthan and the State Government to bear the  

liability in equal shares.  That in terms thereof, the Sansthan  

has meanwhile deposited an amount of Rs. 2.19 crores is also  

on record.   

29.  In the interregnum, the development plan of Shirdi had  

been sanctioned by the Director, Town Planning, Maharashtra  

on 15.12.1992 to come into effect from 25.2.1993.   As per the  

said  development  plan,  the  area  measuring  30  gunthas  

included in Survey No. 1, in  occupation amongst others of the  

appellants was reserved for garden.  On the directives of the

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State Government, however and on the compliance of the legal  

formalities  under  the  Act  1966  as  claimed,  a  modification  

thereto  was  effected  and  this  plot  was  bifurcated  into  two  

equal halves of 15 gunthas each, the northern part (13A) being  

reserved for  ‘garden’  and southern part(13B) for    shopping  

centre.  The appellants are in occupation of the plot 13A in  

terms of the modified development plan.  This was as far back  

as  on  27.3.2003.   Presumably,  the  shopping  complex  

contemplated  under  the  compromise  decree  in  which  the  

appellants were eventually to be accommodated did not come  

up in view of this development plan.  However, explanation for  

the  inaction  of  the  respondents/defendants  for  over  two  

decades is not forthcoming.

30. As  is  discernable  from  the  pleaded  stand  of  the  

respondents/defendants  and  endorsed  by  the  Nagar  

Panchayat/Municipal  Council,  the  shops  of  the  appellants  

have not only encroached  upon the Palkhi Road  (9 meters  

width) but also the adjoining road (15 meters width) adjacent  

to their  plots and used as service road to the temple. Further  

their constructions also come within the prohibited distance of

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37 meters from the centre of the Ahmad Nagar Manmad Road,  

State  Highway No.  10 i.e.   the  control  line fixed under  the  

Highways  Act.   Such  encroachments,  according  to  the  

respondents, being in derogation of the provisions of Act 1965,  

Act 1966 and the Highways Act as well as in conflict with the  

development  plan  are  required  to  be  removed  not  only  to  

promote the development of  the area but also to secure the  

convenience and safety of the surging volume of devotees in  

particular and the local population in general.   

31. To  reiterate,  the  appellants  have  not  disputed  the  

sequence of events after the compromise decree for which it  

has been concurrently held in the preceding proceedings that  

the decree has become inexecutable. Not only these facts are  

borne out from the contemporaneous documents, there is no  

persuasive reason either to delve into the same afresh.  The  

unassailable  fact  is  that  after  the  compromise  decree  on  

20.8.1979, a development plan for Shirdi had been formulated  

and finalized, in terms whereof  amongst others, the Palkhi  

Road  and  its  adjoining  road  leading  to  the  temple  are  

contemplated to be cleared of  encroachments.   Further,  the

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appellants’  structures  are  said  to  be  within  the  prohibited  

distance of 37 meters from the Manmad State Highway No. 10  

marking the control line.  Noticeably the compromise decree  

did  not  declare  the  appellants’  title  in  the  land.   It  is  

admittedly vested in the State Government.  The decree only  

protected their occupation of  the site in possession till  they  

were rehabilitated in the proposed shopping complex to come  

up in future.   The decree,  in  the  framework of  the  suit  in  

which  it  was  passed,  also  cannot  be  construed  to  be  one,  

endorsing  compliance  of  the  statutory  requirements  of  the  

legislations  involved  and  in  force  at  that  point  of  time.  

Resultantly,  the  failure  of  the  Sansthan  to  construct  the  

shopping  complex  as  undertaken  under  the  compromise  

decree, ipso facto  would not  insulate the appellants from the  

mandate of the relevant statutes in force to test the legality or  

otherwise  of  the  structures  existing  allegedly  in  violation  

thereof.  In absence of any proof, adduced by the appellants to  

demonstrate  that  their  structures existing do adhere  to  the  

prescriptions of the statutes invoked, their mere possession of  

the  site  since  1970  would  not  be  available  to  them as  an

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impenetrable  shield  against  the  infringements  as  alleged.  

These violations, if any, however would have to be addressed,  

by following the due process of law.

32.   In all, having regard to the progression of events after  

the  compromise  decree,  the  contraventions  alleged  and  the  

initiatives proposed  in preponderate public interest, we do not  

feel persuaded to hold at this distant point of time,  that the  

compromise decree is still executable. In our comprehension,  

the intervening developments have occurred in the free flow of  

events and in absence of any semblance  of evidence of any  

collusion between the State  Government,  the  Sansthan and  

the Nagar Panchayat/Municipal Council, we are not inclined  

to sustain the said accusation.

33. Whereas in  Arun Lal (supra) and Dhurandhar Parsad  

Singh  (supra),  the  decrees  involved  had been held  to  have  

been  rendered  inexecutable  in  the  contextual  facts,  which  

need not be dilated, in  M/s. Laxmi and Co. (supra), it was  

enunciated  as a matter of general proposition, that a Court  

can  take  notice  of  subsequent  events  because  of  altered

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circumstances to shorten the litigation.  It was held that if the  

court  finds,  in  view  of  such  intervening  developments,  the  

relief had become inappropriate or a decision cannot be  given  

effect  to,  it  ought  to  take  notice  of  the  same  to  shorten  

litigation,  to  preserve  the  right  of  both  the  parties  and  to  

subserve the ends of justice.   

34. Inexecutability,  of  the decree of  a  court,  in the face of  

intervening  and  supervening  developments,  is  thus  a  

consequence comprehended in law, however contingent on the  

facts of each case.   We, thus, feel disinclined to interfere with  

the judgment and order dated 5.7.2010 of the High Court and  

impugned in CA. No. 3154 of 2011, so far as it pertains to the  

aspect  of  inexecutability  of  the  compromise  decree  dated  

20.8.1979.  Any contrary view, would have the consequence of  

effacing the stream of  developments for  over three decades;  

more particularly when a formidable element of public interest  

is involved.  

35. To  reiterate,  the  denunciation  of  the  notice  dated  

11.4.2001 is principally founded  on lack of competence of the

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Nagar Panchayat/Municipal Council, it being not the owner of  

the land involved.  Further as contended by the appellants, it  

has  no  authority  as  well  to  invoke  the  provisions  of  the  

Highways Act.  It is therefore imperative to briefly notice the  

relevant provisions of the statutes applied.

36. The Act 1965, as its preamble would disclose, is to unify,  

consolidate and amend the law  relating to Municipal Councils  

and  to  provide  for  constitution  of  Nagar  Panchayat  and  

Industrial Townships in the State of Maharashtra.  Prior to the  

amendment  thereto  in  the  year  1994,  the  statute  with  the  

same objectives was relatable to municipalities in the State of  

Maharashtra.   The  expressions  “council”,  “local  authority”,  

“Municipal  Area”,  “Nagar  Panchayat”,  “Public  Street”,  “a  

smaller urban area” as defined in Sections 2(6), 2(20), 2(24),  

2(25A),  2(42)  and  2(47A)  respectively  are  extracted  

hereinbelow:

2(6)  “Council”  means  a  municipal  council  constituted or deemed to have been constituted  for  a  smaller  urban  area  specified  in  a  notification issued in this respect, under clause  (2)  of  Article  243-Q of the Constitution of India

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or  under  sub-section (2) of Section 3 of this  Act;  2(20)  “local  authority”  means a Council  or  a  Municipal  Corporation  constituted  under  the  Bombay  Municipal  Corporation  Act  (now  the  Mumbai  Municipal  Corporation  Act),  or  the  Bombay Provincial Municipal Corporations Act,  1949  or  the  City  of  Nagpur  Corporation  Act,  1948,  or  Zilla  Parishad constituted  under  the  Maharashtra  Zilla  Parishads  and  Panchayat  Samitis  Act,  1961,  or  a  village  panchayat  constituted  under  the  Bombay  Village  Panchayats Act, 1958. 2(24)  “municipal  area”  means  the  territorial  area of a Council or a Nagar Panchayat; 2(25A)   “Nagar  Panchayat”  means  a  Nagar  Panchayat  constituted  for  a  transitional  area  notified under Section 341A of this Act; 2(42)  “public street” means any street,–  (a) over which the public have a right of way ; (b)  heretofore  levelled,  paved,  metalled  channelled,  sewered,  or  repaired  out  of  municipal or other public funds; or  (c)  which  under  the  provisions  of  this  Act  becomes, or is declared, a public street;  2(47A)   “a  smaller  urban  area”  or  “a  transitional area” shall mean an area specified  as  “a  smaller  urban  area”  or  “a  transitional  area”,  as  the  case  may  be,  by  a  notification  issued under clause (2) of Article 243-Q of the  Constitution of India or under this Act;

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37. The  “Council”,  as  per  the  definition  enumerated  

hereinabove, would mean a municipal council constituted or  

deemed to have been constituted  for  a smaller urban area  

specified  in  the  notification  to  that  effect,  as  contemplated  

under clause (2) of Article 243-Q of the Constitution of India or  

under Section 3(2) of Act 1965. Whereas “Nagar Panchayat” is  

an institution constituted for  a  transitional  area as notified  

under Section 341A of the Act, “municipal area”  defines the  

territorial area of a Council or a Nagar Panchayat.  In terms of  

Section 1(3), the provisions of the Act would come into force on  

such date as the State Government would by notification in  

the official gazette appoint.  The parties are not at issue that  

the Act 1965 applies to the area involved.

38. The  Council  is  one  of  the  municipal  authorities  as  

contemplated under Section 7 of the Act 1965 charged with  

the responsibility  of  carrying out the provisions there of  for  

each  municipal  area.  Section  8  recognizes  it  to  be  a  body  

corporate  with  perpetual  succession  and  a  common  seal,  

possessing the power to acquire, hold and dispose of property,  

and to enter into contracts and may by the said name sue, or

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be sued through its Chief Officer.  The duties and functions of  

the Council as catalogued in Section 49 of the Act in addition  

to the municipal governance of a municipal area with its limits  

also  make  it  incumbent  for  it  to  undertake  and  to  make  

reasonable  provisions,  amongst  others  for  removing  

obstructions and projections in public streets or places and in  

spaces,  not  being  private  property,  which  are  open  to  the  

enjoyment of the public, whether such spaces are vested in the  

Council or in Government.  The plea that the Council is not  

the owner of the land thus is of no relevance or significance.

39. Chapter  XI  of  this  Act  deals  with  the  powers  of  the  

council  pertaining  to  public  streets  and  open  spaces.  

Whereas  Sections  179  and  180  authorize  the  Municipal  

Council  through its Chief Officer, amongst others to remove  

any projection, obstruction or encroachment, built or set up,  

without its written permission, Section 187 empowers its Chief  

Officer or any other municipal officer authorized by him,  to  

seize  any  article  hawked  or  sold  or  exposed  for  sale,   in  

absence of a license granted by the bye-laws of the Council.  

The contingencies in which the Chief  Officer  of  the Council

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may  by  a  written  notice,  inter  alia,  require  a  person  to  

demolish any construction made, is set out in Section 189 of  

the Act under 'Chapter XII Control over Buildings'.

40. Chapter  XXVI-A  deals  with  the  Nagar  Panchayats  

whereunder,  as  per  Section  341A,  the  State  Government,  

having regard to the factors mentioned in clause (2) of Article  

243Q of the Constitution of India, may by notification in the  

official gazette, specify an area in transition from a rural to an  

urban area, to be a transitional area and constitute a Nagar  

Panchayat  therefor.   In  terms  of  Section  341D,  the  State  

Government  may,  at  any  time,  in  accordance  with  the  

provisions  of  the  Act,  by  notification  in  the  official  gazette,  

constitute a transitional area or a part thereof to be a smaller  

urban  area.   Section  349  makes  it  obligatory  on  every  

successor  Council  to  continue  to  carry  out  any  duty  or  to  

manage, maintain or look after any institution, establishment,  

undertaking,  measure,  work  or  service  which  the  existing  

Council  had  been  responsible  for  carrying  out,  managing,  

maintaining or looking after immediately before the appointed

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day,  until  the  State  Government  by  order  relieves  the  

successor Council of such duty or function.

41. The  expressions  “development”,  “development  plan”,  

“local   authority”  and “planning authority”  appearing in Act  

1966 being of definitive significance are extracted hereunder  

for immediate  reference:

2(7)  "development"  with  its  grammatical  variation means the  carrying  out  of  buildings,  engineering,  mining  or  other  operations  in,  or  over  or  under,  land  or  the  making  of  any  material  change, in any building or land or in  the use of any building or land  [or any material  or structural change in any heritage building or  its precinct]  [and includes  [demolition of any  existing building structure or erection or part of  such  building,  structure  or  erection;  and]  [reclamation,]  redevelopment  and  lay-out  and  sub-division of any land; and "to develop" shall  be construed accordingly]; 2(9) "Development Plan" means a plan for the  development  or  re-development  of  the  area  within the jurisdiction of  a  planning Authority  [[and  includes  revision  of  a  development  plan  and] proposals of a Special Planning Authority  for development of land within its jurisdiction]; 2(15) "local authority" means-  (a)  the  Bombay  Municipal  Corporation  constituted  under  the  Bombay  Municipal  Corporation  Act,  or  the  Nagpur  Municipal

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Corporation  constituted  under  the  City  of  Nagpur Municipal Corporation Act, 1948 or any  Municipal  Corporation  constituted  under  the  Bombay Municipal Corporation Act, 1949,  (b) a Council and a Nagar Panchayat constituted  under  the  Maharashtra  Municipal  Councils,  Nagar Panchayats and Industrial Township Act  1965, (c)  (i)  a  Zilla  Parishad  constituted  under  the  

Maharashtra Zilla Parishads and Panchayat  Samitis Act, 1961,  

(ii)  the  Authority  constituted  under  the  Maharashtra Housing and Area Development  Act, 1976,  

(iii)  the  Nagpur  Improvement  Trust  constituted  under  the  Nagpur  Improvement  Trust  Act,  1936,  

which is  permitted by the State Government for  any  area  under  its  jurisdiction  to  exercise  the  powers of a Planning Authority under this Act;

2(19)  "Planning  Authority"  means  a  local  authority; and  includes,-  (a)  a Special  Planning Authority constituted or  appointed  or  deemed  to  have  been  appointed  under Section 40;   (b)  in  respect  of   slum  rehabilitation  area  declared under Section 3C  of the Maharashtra  Slum  Areas  (Improvement,  Clearance  and  Redevelopment)  Act,  1971,  the  Slum  Rehabilitation  Authority  appointed  under  Section 3A of the said Act;

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42. The  cumulative  reading  of  the  statutory  definitions  as  

above would leave no manner of doubt that the “Council” or  

“Nagar Panchayat” constituted under the Act 1965 would  be a  

planning authority under Act 1966.  Section 42 mandates that  

consequent  upon the  operation of  any development  plan or  

plans under Chapter III  of  the Act,  it  would be the duty of  

every  planning  authority  to  take  such  steps  as  would  be  

necessary to carry out the provisions thereof.  The statutory  

fiat  is,  thus  unambiguous  vis-à-vis  the  planning  authority.  

Under Chapter IV dwelling on “Control of development and use  

of  land included in development plans”, whereas Section 52  

prescribes  penalty  for  unauthorized  development  or  for  use  

otherwise  than  in  conformity  with  the  development  plan,  

Section 53 empowers the planning authority to cause a notice  

to be served on the owner of  the unauthorized development  

carried out in violation of Section 52(1), to take steps as may  

be mentioned therein either to restore the land to its condition  

existing before the said development or to secure compliance  

with the conditions or with the permission earlier granted or  

as modified, as the case may be.  The power to require removal

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of unauthorized development or use, is vested in the planning  

authority to be invoked, after causing a notice to be served on  

the owner, requiring him to either to discontinue the use or  

cause alteration or removal of any building/work as the case  

may  be  or  to  impose  such  condition(s)  in  the  event  of  

continuance of such use.  Such a move is contemplated if it  

appears to the planning authority, that it is expedient to do so,  

in the interest of proper planning of its areas, having regard to  

the development plan prepared and any person aggrieved by  

such notice may prefer an appeal to the State Government in  

the manner prescribed.

43. In view of the statutory enjoinments  and  the legislative  

intent, discernable from the above provisions, the omission to  

mention Section 56 of Act 1966 in the notice dated 11.4.2001,  

in the face of unequivocal empowerment of the Council, as the  

planning authority under the Act 1966,  in our estimate does  

not render it illegal, unauthorized or non est.  In our view, the  

Municipal  Council  was  well  within  its  competence  and  

authority as the planning  authority under the Act 1966, to  

issue the notice dated 11.4.2001, being of the opinion that the

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steps advised therein, were essential for the implementation of  

the development plan, already prepared and finalized,  for  the  

progress and advancement of the area.

44. The  definitions  of  the  words  “encroachment”  and  

“highway” as framed in Sections 2(f) and 2(i) of the Highways  

Act deserve extraction as well.

2(f)  “encroachment “  means  any  unauthorised  occupation of  any highway or  part  thereof,  and  includes an unauthorised-

(i)  erection of a building or any other structure,  balconies,  porches,  projections  on or  over  or overhanging the highway;  

(ii)  occupation  of  a  highway  beyond  the  prescribed  period,  if  any,  for  stacking  building  materials  or  goods  of  any  other  description, for exhibiting articles for sale,  for  erecting poles,  owning, tents,  pandals,  hoardings and other similar erections or for  parking vehicles or stabling animals or for  any other purpose; and  

(iii) excavations or dumps of any sort made or  extended  on  any  highway  or  underneath  such highway;

2(i)  “highway”  means  any  [road,  way  or  land]  which is declared  to be a  highway under Section  3.  The expression includes-

(i) any land acquired or demarcated with  a view  to construct a highway along  it;

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(ii) the slopes,  berms, borrow-pits,  foot- paths, pavements and side, catch and  boundary  drains  attached  to  such  road or way;

(iii) all  bridges,  culverts,  causeways,  carriageways  and  other  structures  built on or across such road or way;  and

(iv) The  trees,  fences,  posts,  boundary,  furlong  and  mile  stones,  and  other  highway  accessories  and  materials  and material stacked on the road or  way;

45. Section  3  of  the  Highways  Act,  empowers   the  State  

Government  to  declare  any  road  and  way  of  land,  to  be  a  

highway and classify it  as a State highway (Special)  etc.  as  

enumerated  therein.   Section  7  authorizes  the  State  

Government  to  fix  by  notification  in  the  official  gazette  in  

respect of such highway, the highway boundary, the building  

line or control line.  Section 9 imposes a restriction  on or after  

the  appointed  day  on  the  buildings  between  the  highway  

boundary and building line, and between building and control  

line, notwithstanding anything contained in any law, custom,  

agreement or instrument for the time being in force.  In terms  

of  this  Section,  no  person shall  construct,  form or  lay  any

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means of access to, or from, a highway or erect any building or  

materially alter any existing building or make or extend any  

excavation on any land lying between the highway boundary  

and the building line and the control line, without the previous  

permission in writing of the Highway Authority.  Thereby, such  

a person, without the permission in writing of  the Highway  

Authority, is also prohibited from using any building or alter  

the use of any building  in  a manner, which in the opinion of  

the  said  Authority,  would  in  any  way  infringe  any  of  the  

provisions of  the Act or interfere with the use of  a highway  

adjoining  the land on which such building is erected.

46. Noticeably, Section 73 accords an overriding effect of the  

provisions of the Highway Act over the provisions of any other  

law  made  by  the  State  Legislature  insofar  as  such  law  is  

inconsistent   with the  provisions thereof  or  the rules made  

thereunder.

47. From the additional documents laid before this Court on  

behalf  of  the  Nagar  Panchayat/Municipal  Council,  it  would  

transpire  that  by  Notification  No.  BHA.3765/116348  dated

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19.4.1967 of the Buildings and Communications Department,  

Sachivalaye,  Bombay,  the  Malegaon-Manmad-Ahmednagar-

Dhond-Patas  Road,  as  specified  therein,  was  declared  as  a  

state highway and that the said notification was published in  

the official gazette.  By a resolution of the State Government  

dated 9.3.2001, the building line and the control line amongst  

others  of  the  State  Highway  and  Main  State  highway  were  

fixed as hereunder:

Sr. No

Status of road Building line Control  line  (places  like  factory,  cinema  hall,  commercial  godown,  market  etc.  where  crowd  takes  place

Civil  and  Industrial  Section

Non-Civil  Section

Civil  and  Industrial  Section

Non-Civil  Section

3 State  Highway  &  Main  State  Highway

20  Meters  from  the  centre  of  road  

40  metres  from the  centre of  the road

37  metres  from the  centre of  road

50  metres  from  the  centre  of  road

48. As would be evident  from hereinabove, the building line  

was  marked  at  20  meters  from  the  centre   of  the  State  

Highway  &  Main  State  Highway  and  the  control  line,  37  

meters therefrom.  

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49. The declaration of Ahmad Nagar Manmad Highway No.  

10  and the fixing of the building line and the  control line  

under  the  Highways  Act  are  also  matters  of  record  and  

supported by above documents.

50. To  reiterate,  the  three  legislations  involved  were  in  

existence  when  the  compromise  decree  was  passed.    As  

determined  hereinabove,  the  compromise  decree  was  not  

based on any adjudication, declaring the title of the appellants  

in  the  land  which  admittedly  belonged  to  the  State  

Government.   Though  they  were  not  adjudged  to  be  

encroachers  or  trespassers  thereupon,  no  finding  was  

recorded  with  regard  to  the  legality  or  otherwise  of  their  

structures  vis-à-vis  the  regulatory  edicts  of  these  statutes.  

There  was  no  occasion  to  examine  or  decide  these  issues.  

Irrefutably,  events  irreversible  in  form  and  impact  have  

occurred in between.  

51. The maps/plans referred to in the course of arguments,  

do  prima  facie  reveal  that  the  site  in  occupation  of  the  

appellants  do  come  within  the  control  line  fixed  under  the

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Highways Act.  In the singular facts and circumstances, the  

insistent  stand  of  the  respondents,  having  regard  to  the  

increasing confluence of devotees from all over the world and  

the resultant congestion and inconvenience suffered, as well  

as the multiplying challenge to the administration to maintain  

law and order in the locality, the plea of implementation of the  

development  plan  cannot  be  brushed  aside  as  frivolous  or  

unwarranted.  On a careful balance of the competing interests,  

in the prevailing conspectus, we are constrained to hold that  

the  impugned notice  does  not  call  for  interference.   In  our  

view, the challenges laid to impeach the same do not merit  

acceptance,  in  the  teeth  of  the  relevant  provisions  of  the  

legislations involved.  Further, the initiative is predominantly  

to espouse a public cause and thus ought not to be scuttled by  

judicial intervention.

52. Significantly  as  claimed  by  the  Nagar  

Panchayat/Municipal  Council,  meanwhile it  has undertaken  

the exercise of widening the roads concerned and has cleared  

the area of the encroachments and that except the structures  

of the appellants, the operation is otherwise complete.

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53. As  the  recorded  facts  demonstrate,  the  growingly  felt  

exigency  of  clearing  the  area  of  the  structures  and  

encroachments in conflict with the statutes involved is in the  

preponderant public interest and it would thus be apparently  

inexpedient  to  trivialize  the  aspects  of  safety,  security  and  

convenience  of  the  burgeoning  devotees  and  the  local  

population  as  persistently  highlighted  by  the  Respondents.  

Any  contrary  view,  in  disregard  to  this  otherwise  salutary  

cause, would signify a retrograde step in the context of greater  

public import.

54. As  noted  hereinabove,  the  appellants  have  been  

consistently held not to be encroachers or trespassers on the  

land in their occupation, they having been let in  thereto by the  

erstwhile  Gram Panchayat, the then owner thereof. The land  

has  since  changed  hands  and  is  vested  in  the  State  

Government.   In  our  view,  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

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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 possession  

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  decree  cannot  be  discarded,  the  contemplated  

measures  of  the  respondents,   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.

55. 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  the  dictates  of  

public  trust  doctrine  –  res  communious i.e.  by  everyone  in

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common.  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. In the words of Cicero “the good of the  

people in the chief law”.

56. The latin maxim “Salus Populi Est Suprema Lex” connotes  

that health, safety and welfare  of the public is the supreme in  

law.  Herbert Broom, in his celebrated publication, “A Selection  

of  Legal  Maxims”  has  elaborated  the  essence  thereof  as  

hereunder:

“This phrase is based on the implied agreement of  every  member  of  the  society  that  his  own  individual  welfare  shall,  in  cases  of  necessity,  yield  to  that  of  the  community;  and  that  his  property,  liberty  and  life  shall,  under  certain  circumstances,  be  placed  in  jeopardy  or  even  sacrificed for the public good.”

The demand of public interest, in the facts of the instant case,  

thus deserve precedence.   

57. A Constitution Bench of this Court in  K.T. Plantation  

Private Limited and Another vs. State of Karnataka (2011)  

9  SCC  1  in  the  context,  amongst  others,  of  the  right  to

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compensation under Article 300A of the Constitution of India  

did observe hereunder in paragraph 134:

“134. Hugo Grotius is credited with the invention  of  the  term  “eminent  domain”  (jus or  dominium  eminens)  which implies  that  public  rights  always  overlap with private rights to property, and in the  case of public utility, public rights take precedence.  Grotius sets two conditions on the exercise of the  power  of  eminent  domain:  the  first  requisite  is  public    advantage and then compensation from the    public funds be made, if possible, to the one who  has lost his right. Application of the above principle  varies  from  countries  to  countries. German,  American  and  Australian  Constitutions  bar  uncompensated  takings.  Canada’s  Constitution,  however,  does  not  contain  the  equivalent  of  the  taking  clause,  and  eminent  domain  is  solely  a  matter of statute law. The same is the situation in  the United Kingdom which does not have a written  constitution as also now in India after the Forty- fourth Constitution Amendment.”

It  was  propounded  that  deprivation  of  property  within  the  

meaning of Article 300A, generally speaking, must take place  

for public purpose or public interest.  The concept of eminent  

domain,  which  applies  when  a  person  is  deprived  of  his  

property postulates, that the purpose must be primarily public  

and not private interest, being merely incidentally beneficial to  

the public.  That the concept of public purpose had been given

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a fairly expansive meaning and that it ought to be a condition  

precedent for invoking Article 300A, was emphasized.  It was  

held  that  for  deprivation of  a  person of  his  property  under  

Article 300A, requirement of public purpose is a precondition,  

but no compensation or nil  compensation or its illusiveness  

has  to  be  justified  by  the  State  on  judicially  justiciable  

standards.   That  property  rights  at  times  are  compared  to  

right  to  life  which  determine  access  to  the  basic  means  of  

sustenance and considered as imperative to the meaningful  

exercise of other rights guaranteed under Article 21 was noted.  

It  was  concluded  that  public  purpose  is  an  inviolable,  

prerequisite for deprivation of a person of his property under  

Article  300A  and  that  the  right  to  claim  compensation  is  

inbuilt  in that article and when a person is deprived of  his  

property, the State has to justify both the grounds which may  

depend on the  scheme and object  of  the statute,  legislative  

policy  and other related factors.

58. Judicial  solicitude,  in  the  context  of  the  constitutional  

guarantee of equality and right to life, in the wake of removal

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of unauthorized encroachments from a public place and the  

consequential  forcible  eviction  of  the  occupants,  presidingly  

pervades the sentient and profound fabric of  Olga Tellis &  

Others  vs.  Bombay  Municipal  Corporation  and  Others  

(1985)3 SCC 545.  Though upholding the contemplated action  

under the statute involved for the removal of the petitioners  

the pavements and basti  slum dwellers of  the Bombay city,  

this  Court defined  the right to livelihood to be  an integral  

part  of  the  right  to  life.   It  was  acknowledged  that  the  

petitioners therein on their eviction would be deprived of their  

livelihood, albeit, their existence by way of encroachments on  

footpaths and pavements, was strongly discountenanced.  It  

was  empahsised  that  footpaths  and  pavements  are  public  

properties, intended to serve the convenience of general public  

and are  not  laid  for  private  use  which,  if  permitted,  would  

frustrate the very object of  carving out the same.  That the  

main reason for laying down footpaths and pavements was to  

enable  the  pedestrians  go  about  their  daily  affairs  with  a  

reasonable  measure of  safety and security was emphasized.  

Holding that such a facility which had matured into a right of

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the  pedestrians,  cannot  be  set  at  naught  by  allowing  

encroachments to be made on the pavements, the plea that  

the claim of the pavement dwellers to put up construction on  

such  pavements  ought  to  be  preferred,  was  assertively  

negated.   All  these  notwithstanding,  it  was  ruled  that  the  

forcible  eviction  of  such squatters  therein,  even if  they  are  

resettled in other sites, would totally disrupt the economic life  

of  their  households.   In  the  textual  facts,  however,  having  

noted  the  proposed  re-habilitation  schemes/programmes  of  

the State Government, appropriate directions were issued.

59. Apropos  the scenario, where the petitioners therein had  

been denied compensation for their land, taken over by the  

respondents and that  too without initiating any process for  

acquiring  the  same  in  accordance  with  law,  this  Court  in  

Tukaram  Kana  Joshi  and  Others  vs.  Maharashtra  

Industrial Development Corporation and Others  (2013)1  

SCC 353,  proclaimed in  the  context  of  Article  300A of  the  

Constitution of  India,  that  right  to property was not  only a  

constitutional or statutory right but also a human right to be

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construed in the realm of individual rights, such as right to  

health, livelihood, shelter, employment etc.   It was reminisced  

that  in a welfare  state,  statutory authorities  are  bound not  

only  to pay adequate compensation but are also under a legal  

obligation to rehabilitate the persons displaced.  The spectre of  

the uprooted persons becoming vagabonds with anti-national  

propensities in case of non-fulfillment of such obligations by  

the State, was portended with concern.  The observation in K.  

Krishna Reddy vs. Special Deputy Collector (1988) 4 SCC  

163  qua  the  relevance  and  significance  of  monetory  

compensation, was quoted with approval:

“12. … After all money is what money buys.  What  the  claimants  could  have  bought  with  the compensation in 1977 cannot do in 1988.  Perhaps,  not  even  one-half  of  it.  It  is  a  common experience that the purchasing power  of rupee is dwindling. With rising inflation, the  delayed  payment  may  lose  all  charms  and  utility of the compensation. In some cases, the  delay  may  be  detrimental  to  the  interests  of  claimants. The Indian agriculturists generally  have no avocation. They totally depend upon  land.  If  uprooted,  they  will  find  themselves  nowhere. They are left high and dry. They have  no savings to draw. They have nothing to fall  back  upon.  They  know no other  work.  They  may even face starvation unless rehabilitated.

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In all such cases, it  is of utmost importance  that the award should be made without delay.  The  enhanced  compensation  must  be  determined without loss of time.”

60. As referred to hereinabove,  inspite  of  the orders dated  

18.10.2010 and 26.11.2015, requiring the State in particular to  

ascertain  the  availability  of  alternative  sites  of  land  to  

accommodate the appellants, no affirmative response has been  

laid before this Court.  To the contrary, as would be discernible  

from the affidavit filed by the State dated March 21, 2014, no  

vacant parcel of land is said to be available for the purpose in  

the  immediate  vicinity  of  the  land  in  occupation  of  the  

appellants.  Though the appellants in their affidavit filed prior  

thereto had indicated five sites, in the face of the obdurate and  

rigid  denial  of  the  State  about  the  feasibility  thereof,  any  

direction to adjust them thereat is uncalled for.

61. The consequence of the appellants being uprooted from  

their  present  sites  of  business,  to  reiterate  would  spell  an  

overall dislocation in their lives.  That many or all of them have  

buildings elsewhere in the locality, assessed to municipal tax, in  

our  comprehension,  cannot  fully  neutralize  this  fallout.   The

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appellants have been conducting their business at the present  

sites for over 45 years and understandably over the time, have  

built up the same with accompanying goodwill and reputation.  

Their  eviction  would  assuredly  eventuate  a  human problem.  

Nevertheless for the cause of paramount public interest, their  

eviction is unavoidable.   

62. In this precipitable eventuality, a realistic balance of the  

attendant exigencies is the clarion call  of justice.  As adverted  

to  hereinabove,  even  on  the  date  of  the  conclusion  of  the  

arguments, this Court had desired to be informed by the State  

about  the  availability  of  alternative  sites  of  land    to  

accommodate  the appellants.  Inspite of assurances given, by  

its learned counsel, no information has been provided.  In this  

premise, having regard to the ensuing consequences qua the  

appellants, we consider it appropriate to direct, to start with,  

the  State  and its  functionaries   to  undertake  an exercise  to  

identify  a  suitable  site  to  accommodate  the  appellants.   We  

make it  clear that even if  such a site is  not available in the  

immediate proximity of the land presently in their occupation, a

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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 the pursuit and would not  delay the completion  

thereof.

63. 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 as quantified herein.   

64. It  is a matter of  record and as has been noted by the  

High Court, the  appellants 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  

of all attendant factors may not be an exact substitute of the  

benefits presently enjoyed with the future prospects, we are of  

the view  that,  having regard to the permissible ponderables  

and also the passage of time in between, a lump sum of Rs. 20  

lakhs  and Rs.  15 lakhs  each respectively  for  the  bigger  and

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smaller  shops/stalls,  as  noted  hereinabove  would  be  a  

reasonable palliative to the appellants.  We order accordingly.  It  

is reiterated that the compensation, as indicated hereinabove,  

would be payable to the appellants only if an alternative site is  

not  feasible.   The  entire  process  on  both  counts,  however  

should  be completed within a period of six weeks herefrom.  

The  State  Government  and  the  Sansthan  would  bear  the  

amount of compensation, payable in equal shares  and would  

deposit the same in the Bombay High Court within the period of  

six weeks aforementioned.   The amount already deposited by  

the  Sansthan  in  terms  of  the  High  Court’s  order,  if  not  

withdrawn,  shall  be  adjusted  against  this  amount.   The  

allotment  of  the  new  site/deposit,  as  directed,  would  be  a  

condition precedent for further action in terms of the impugned  

notice.  It is also ordered that on the deposit being made with  

the High Court, the Registrar General of the High Court would  

make  suitable  arrangements  for  disbursement  thereof  to  the  

appellants  as  due  to  them,  as  expeditiously  as  possible,  

however on proper identification.

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65.  The appeals are dismissed, however subject to the above  

terms.  No costs.  

…....................................J.  (V. GOPALA GOWDA)

        …............................................J.   (AMITAVA ROY)

NEW DELHI; FEBRUARY 22, 2016.