judgment relating to land encrochment and evidence value

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VERY USEFUL
JUDGEMENTS
ON
ENCROACHMENT
&
EVIDENTARY VALUE

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CODE OF CIVIL PROCEDURE,1908
Section 75 to 77 of Part­ III, deal with Incidental proceedings. Section 75
gives power to the Court to issue Commissions. As per Clause (b) of
Section 75, the Court can make a local investigation. As per Clause (e)
the Court can have a power to hold a scientific, technical or
expert investigation. The Court has a power to appoint a Court
Commissioner under the provisions of Order XXVI, Rule 9 for
elucidating the matter in dispute. But such Commission cannot
be ordered for collection of evidence in a proceeding.
Laxman Wamanrao Nagapure Vs Shankar Haribhau Adhau
Second Appeal No. 123 of 2013. Date :­ 9/4/ 2014 Bombay High
Court Para 14 when the suit is filed for removal of encroachment from
and for the possession immovable property, the plaintiff is required to
take care to comply with Order VII Rule 3 of the Code of Civil Procedure
so as to describe the suit property which is subject­matter of the suit
sufficiently so as to identify appropriately with boundaries thereof. The
plaintiff must be careful to describe the property by its boundaries,
Survey Number/Gat Number with area mentioning the boundaries on
North, East, West and South of the suit property. Without such
description, the trial Court may not be assisted properly by the plaintiff
to pass an effective decree if it is passed for the removal of encroachment
from the suit land/property in such cases.
Para 16, the substantial question of law is already settled as it is
necessary in such cases for the trial Court to insist upon sufficient

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description of the immovable property by its boundaries and further to
insist upon the measurement plan/map drawn by the competent Official
from the office of the Government concerned,
LANDMARK JUDGMENT
Jagpal Singh v.State of Punjab 2011 (11) SCC 396 to the effect that
if land is not available for allotment and construction is made thereon,
then that construction must be demolished.
Coming down harshly on the land grabbing prevalent in the various
parts of the country, especially the areas relating to village, the Supreme
Court in a decision pronounced rise in such unscrupulous tendencies in
Independent India to hold that it was high time that stern action was
required to be undertaken in this regard.
The Court inter alia observed as under;
3. Since time immemorial there have been common lands inhering in
the village communities in India, variously called gram sabha land,
gram panchayat land, (in many North Indian States), shamlat deh
(in Punjab etc.), mandaveli and poramboke land (in South India),
Kalam, Maidan, etc., depending on the nature of user. These public
utility lands in the villages were for centuries used for the common
benefit of the villagers of the village such as ponds for various
purposes e.g. for their cattle to drink and bathe, for storing their
harvested grain, as grazing ground for the cattle, threshing floor,
maidan for playing by children, carnivals, circuses, ramlila, cart

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stands, water bodies, passages, cremation ground or graveyards, etc.
These lands stood vested through local laws in the State, which
handed over their management to Gram Sabhas/Gram Panchayats.
They were generally treated as inalienable in order that their status
as community land be preserved. There were no doubt some
exceptions to this rule which permitted the Gram Sabha/Gram
Panchayat to lease out some of this land to landless labourers and
members of the scheduled castes/tribes, but this was only to be done
in exceptional cases.
4. The protection of commons rights of the villagers were so
zealously protected that some legislation expressly
mentioned that even the vesting of the property with the
State did not mean that the common rights of villagers were
lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs.
Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed:
“It is true that the suit lands in view of Section 3 of the Estates
Abolition Act did vest in the Government. That by itself does not
mean that the rights of the community over it were taken away.
Our attention has not been invited to any provision of law under
which the rights of the community over those lands can be said
to have been taken away. The rights of the community over the
suit lands were not created by the landholder. Hence those
rights cannot be said to have been abrogated by Section 3© of
the Estates Abolition Act.”

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5. What we have witnessed since Independence, however, is
that in large parts of the country this common village land
has been grabbed by unscrupulous persons using muscle
power, money power or political clout, and in many States
now there is not an inch of such land left for the common use
of the people of the village, though it may exist on paper.
People with power and pelf operating in villages all over
India systematically encroached upon communal lands and
put them to uses totally inconsistent with its original
character, for personal aggrandizement at the cost of the
village community. This was done with active connivance of
the State authoritiesand local powerful vested interests and
goondas. This appeal is a glaring example of this lamentable
state of affairs .
6. This appeal has been filed against the impugned judgment of a
Division Bench of the Punjab and Haryana High Court dated
21.5.2010. By that judgment the Division Bench upheld the
judgment of the learned Single Judge of the High Court dated
10.2.2010.
7. It is undisputed that the appellants herein are neither the owner
nor the tenants of the land in question which is recorded as a pond
situated in village Rohar Jagir, Tehsil and District Patiala. They are
in fact trespassers and unauthorized occupants of the land relating
Khewat Khatuni No. 115/310, Khasra No. 369 (84­4) in the said

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village. They appear to have filled in the village pond and made
constructions thereon.
xxx
13. We find no merit in this appeal. The appellants herein were
trespassers who illegally encroached on to the Gram
Panchayat land by using muscle power/money power and in
collusion with the officials and even with the Gram
Panchayat. We are of the opinion that such kind of blatant
illegalities must not be condoned. Even if the appellants have
built houses on the land in question they must be ordered to
remove their constructions, and possession of the land in
question must be handed back to the Gram Panchayat.
Regularizing such illegalities must not be permitted because
it is Gram Sabha land which must be kept for the common
use of villagers of the village. The letter dated 26.9.2007 of the
Government of Punjab permitting regularization of possession of
these unauthorized occupants is not valid. We are of the opinion
that such letters are wholly illegal and without jurisdiction.
In our opinion such illegalities cannot be regularized. We
cannot allow the common interest of the villagers to suffer
merely because the unauthorized occupation has subsisted
for many years.
14. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6)

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SCC 464 the Supreme Court ordered restoration of a park after
demolition of a shopping complex constructed at the cost of over
Rs.100 crores. In Friends Colony Development Committee vs.
State of Orissa, 2004 (8) SCC 733 this Court held that even where
the law permits compounding of unsanctioned constructions, such
compounding should only be by way of an exception. In our opinion
this decision will apply with even greater force in cases of
encroachment of village common land. Ordinarily, compounding
in such cases should only be allowed where the land has been
leased to landless labourers or members of Scheduled
Castes/Scheduled Tribes, or the land is actually being used
for a public purpose of the village e.g. running a school for
the villagers, or a dispensary for them.
15. In many states Government orders have been issued by the State
Government permitting allotment of Gram Sabha land to private
persons and commercial enterprises on payment of some money. In
our opinion all such Government orders are illegal, and should be
ignored.
16. The present is a case of land recorded as a village pond. This
Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215
(followed by the Madras High Court in L. Krishnan vs. State
of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded
as a pond must not be allowed to be allotted to anybody for
construction of a house or any allied purpose. The Court

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ordered the respondents to vacate the land they had illegally
occupied, after taking away the material of the house. We pass a
similar order in this case.
17. In this connection we wish to say that our ancestors were
not fools. They knew that in certain years there may be
droughts or water shortages for some other reason, and
water was also required for cattle to drink and bathe in etc.
Hence they built a pond attached to every village, a tank
attached to every temple, etc. These were their traditional
rain water harvesting methods, which served them for
thousands of years.
18. Over the last few decades, however, most of these ponds
in our country have been filled with earth and built upon by
greedy people, thus destroying their original character. This
has contributed to the water shortages in the country.
19. Also, many ponds are auctioned off at throw away prices to
businessmen for fisheries in collusion with authorities/Gram
Panchayat officials, and even this money collected from these so
called auctions are not used for the common benefit of the villagers
but misappropriated by certain individuals. The time has come when
these malpractices must stop.
20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954
was widely misused to usurp Gram Sabha lands either with

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connivance of the Consolidation Authorities, or by forging orders
purported to have been passed by Consolidation Officers in the long
past so that they may not be compared with the original revenue
record showing the land as Gram Sabha land, as these revenue
records had been weeded out. Similar may have been the practice in
other States. The time has now come to review all these orders by
which the common village land has been grabbed by such fraudulent
practices.
21. For the reasons given above there is no merit in this appeal and
it is dismissed.
22. Before parting with this case we give directions to all the
State Governments in the country that they should prepare
schemes for eviction of illegal/unauthorized occupants of
Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and
these must be restored to the Gram Sabha/Gram Panchayat
for the common use of villagers of the village. For this
purpose the Chief Secretaries of all State
Governments/Union Territories in India are directed to do
the needful, taking the help of other senior officers of the
Governments. The said scheme should provide for the speedy
eviction of such illegal occupant, after giving him a show
cause notice and a brief hearing. Long duration of such
illegal occupation or huge expenditure in making
constructions thereon or political connections must not be

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treated as a justification for condoning this illegal act or for
regularizing the illegal possession. Regularization should
only be permitted in exceptional cases e.g. where lease has
been granted under some Government notification to
landless labourers or members of Scheduled
Castes/Scheduled Tribes, or where there is already a school,
dispensary or other public utility on the land.
The case of Luvkuch v. State of Uttar Pradesh [Misc. Bench No.
13474/2016, decision dated 03.06.2016][AIR 2016 All 220] came up before
the High Court on account of the complaint of local residents of the State
against those "encroaching upon a public pathway by raising
construction of a religious structure (Temple) and attempting to encroach
upon the public land". They submitted that "people of this Country are
basically simple and have faith in one or the other religion" and they are
"normally soft whenever any religious activity is undertaken, even if it
causes inconvenience of any kind to them". It was on account of this
tendency of theirs, it was argued, that others took "advantage of such
religious sentiments normally shown by majority of people" and such
"scrupulous people do not hesitate in gross misuse by proceeding to
encroach upon public land causing obstruction in smooth movement of
public." Their argument was noted by the High Court in the following
terms;
"3. ... Many a times, we have seen that in the garb of
constructing religious structures, like Temple, Mazar, Samadhi,
Mosque, Gurudwara, Church etc., public roads (including

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highways), streets, pathways etc. are encroached upon,
obstructing or creating hindrance in smooth movement of public
including vehicular traffic and once such structure is raised, due
to fear of adverse consequences, people normally avoid to
complain, and used to adjust such misuse. It is submitted by
learned counsel for petitioners that authorities in power, who
under the statute, are responsible to prevent such encroachment
and illegal constructions also play soft and do not take or
hesitate in taking action for preventing such activities and this
is causing mushroom growth of such structures by encroaching
upon public roads (including highways), streets, pathways
etc. ..."
The Government lawyer accepted that "such encroachment and illegal
constructions, neither in law nor otherwise can be allowed" but also
submitted that it was "looking to religious sentiments of people" that
"authorities find it difficult to take actual action." Taking note of the
position, the High Court passed the following order;
"6. There is no fundamental or legal right to encroach
upon a public road (including highway), street etc. and
raise construction of any kind thereon. These unauthorised
and illegal activities cause hindrance and interruption in free
flow and movement of traffic including foot walkers. Every
citizen has a fundamental right of movement and this
cannot be allowed to be infringed by a few violators in

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public and apathy of State authorities. In our view, those
who create such obstructions as also those who perpetuate it by
taking care/ managing such structures and also those who fail to
take any action in law, all deserve to be taken to task and make
responsible and accountable for their respective misdeeds.
7. Looking to the wider perspective of the issue and widespread
tendency of such encroachment in the name of religion, faith,
sect etc., we find that the State Government and Officials must
be asked to act and show response in an effective manner."
In this background the High Court passed the following directions to all
State authorities;
(i) State of U.P. through Chief Secretary, U.P. is directed to
issue a general direction to all Collectors and Senior
Superintendent of Police/Superintendent of Police including the
Officers responsible for maintenance of roads including
highways) in State of U.P. to ensure that no religious structure
in any form, whatsoever, shall be allowed / permitted to be
raised on public road (including highways), street, pathway,
lane etc. including sideways which is part and parcel of road
(including highways) etc. and belong to State.
(ii) If any such structure is existing and has been raised in the
last five years, to be more precise on and after 01.01.2011, the
same shall be removed forthwith and a compliance report shall
be submitted by Collectors etc. of concerned Districts to

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Principal Secretary/Secretary of concerned department, who
shall submit a comprehensive report to the Chief Secretary
within next two months.
(iii) If any such religious structure has been raised encroaching
upon public road (including highways), street, lane etc., as
stated above, before 01.01.2011, a Scheme shall be worked out
and executed to shift the same to a private land offered by
beneficiaries of such religious structures or persons responsible
for its management or to remove it, within six months and a
compliance report shall be submitted in the manner as said
above in Direction No. (ii).
(iv) On and after 10.06.2016, it shall be the responsibility of all
Deputy Collectors/ Collectors in respective Sub­divisions and
District as also Circle Officers and Superintendent of
Police/Senior Superintendent of Police of concerned District
including the Officers responsible for maintenance of roads
(including highways) that no encroachment is made, by raising
religious structures, by whatever name it is called, belong to any
religion, creed, caste, sect, section etc., on public roads
(including highways), streets, pathways, sideways, lanes etc.
and if any deviation or disobedience is found, these Officers
shall be personally responsible. This disobedience shall also be
treated a deliberate and intentional disobedience to lower down
authority of Court and would amount to criminal contempt.

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(v) State Government is also directed to make out a plan so as to
ensure that public roads (including highways), streets,
pathways, sideways, lanes etc. are not obstructed creating
hindrance in the smooth flow of traffic/movement of public on
such roads (including highways) due to observance of religious
activities and such activities are performed strictly at the places
identified for the same or belong to concerned religious sections
or at private place.
(vi) In the present case, District Magistrate is directed to take
immediate steps and take appropriate action within two weeks.
While indeed the High Court has passed the directions calling upon the
authorities to take action, one cannot rule out with certainty that such
actions will not be repeated again. Land grabbing, albeit in the name of
religion, is a common affair in the country and it will definitely take
more than a mandamus to the authorities to act. The common folks must
realise the importance of the issue and then only some improvement can
be expected.
the right of an individual versus the concern for or impact on the
society.
Andhra Pradesh High Court in a recently reported decision [Karanam
Manjunath v. The District Collector, Kurnool, AIR 2010 NOC 948]
was required to decide whether it is permissible for a citizen to carry out
a trade on the margin of the road where the local authority has

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permitted them to carry on the trade for some period in the past and now
is desirous to removing the shops. Holding that there was no such right
to carry on the business on road­margin, the High Court declared in this
respect as under;
The question involved in this writ petition is a right to carry on
trade and business guaranteed under Article 19(1)(g) of
Constitution of India. The right of a citizen to carry on trade on
the street in tune with Article 19(1)(g) read with Article 19 (6) is
recognised. The Supreme Court in Sodan Singh (supra),
Ahmedabad Municipal Corporation v Nawab Khan and various
other Judgments of Supreme Court, considered various aspects
of the rights and restrictions subject to which such right can be
enjoyed. Following the Judgments in Secunderabad Bunks
(Kiosks) Owners Association v Commissioner, Municipal
Corporation, Hyderabad, and Slum Dwellers Welfare
Association v District Collector, Ranga Reddy District, this
Court in an unreported Judgment, dated 30.04.2004, in
W.P.No.15413 of 1994 (Venkatesh v M.C.H., Hyderabad),
reiterated the law as under.
Insofar as the submission that a citizen has right to
carry on business on the street is concerned, there
cannot be any dispute with the principle of law in view
of the decision of the Supreme Court in Sodan Singh
(supra). However, the right to carry on business on
the street either by moving from one place to

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another, squatting at one particular place is
concerned, it is also well settled that no citizen
can cause obstruction to the traffic or pedestrians
because the roads and pathways are essentially
meant for to pass and re­pass and use for
conveyance. A reference may be made to judgment of a
Division Bench of this Court, to which I was a member,
in Slum Dwellers Welfare Association (supra).
After referring to important case law on the point in Manglaur
Municipality v Mahadeoji, Pyare Lal v Delhi Municipality,
Himat Lal v Police Commissioner, Ahmedabad, K.Sudarsan v
Commissioner, Corporation of Madras, M.A.Pal Mohammed v
R.K.Sadarangani Bombay Hawkers’ Union v Bombay Municipal
Corporation, Olga Tellis v Bombay Municipal Corporation,
Sodan Singh (supra), Delhi Municipal Corporation v
Gurnamkaur, P.K.Wariyar v State of Kerala, Sodan Singh (II) v
New Delhi Municipal Committee, Gainda Ram (I) v M.C.D.Town
Hall, Gainda Ram (II) v M.C.D. Secunderabad Bunks (Kiosks)
(supra), Ahmedabad Municipal Corporation (supra),
N.Jagadeesan v District Collector, North Arcot, Bapujinagar
Khudra Byabasai Association v State of Orissa, Sodan Singh
(III) v New Delhi Municipal Committee, Sodan Singh (IV) v New
Delhi Municipal Committee, Gainda Ram (III) v M.C.D. and
State of Maharashtra v Alka B.Hindge the Division Bench laid
down as under.

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The law of the streets is well­settled. The road is
primarily meant for citizens to pass and repass
and use for conveyance….The right to carry on
business, trade or profession being a fundamental
right under Article 19(1)(g) of the Constitution of
India any total prohibition of carrying on
business on the road is unconstitutional.
However, no citizen can claim absolute right to
squat on the road either for the purpose of
business or for the purpose of residence. Roads
are not meant for building houses and residential
huts. Roads are basically meant for citizens for
passing and repassing. As long as the citizens’
activity in relation to road does not offend or
effect the rights of other citizens, in that the use of
the road does not obstruct the other citizens, no
objection can be taken. But, when structure or
permanent structure for business or residence, the
law does not recognise such right.
The right of petitioners to occupy Gram Panchayat road
margin – even if it is with permission of the Panchayat –
is subject to the right of users of the road. The roads are
meant for passing and re­passing by the users and they
are not meant for squatters to carry on business. Sections

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98 and 99 of Andhra Pradesh Panchayat Raj Act, 1994 (the Act,
for brevity) empower, nay, cast a duty on the Gram Panchayat
to remove all the encroachments and keep the roads vested in
Gram Panchayat under Section 53 of the Act free from
encroachments. Section 98(2) of the Act speaks of prescriptive
right of a person in occupation of Gram Panchayat land/road
and even in such cases, the person squatting on the road margin
does not get a right of occupation and if such prescriptive right
is proved, he is only entitled for compensation.
Therefore, the petitioners have no right to enforce by filing a
writ petition.It is well settled that a writ of Mandamus can be
issued only when the petitioner shows enforceable right (see
Director of Settlements, A.P., v M.R.Appa Rao[23]). The
petitioners have no right to continue to occupy the margin of
Gram Panchayat road, especially when the same is causing
obstruction for the users
LAW RELATING OT MASTER PLANS
Municipal agencies ofter prepare 'Master Plans' stating out the vision
statement for the development of the city. These master plans serve as a
reminder to those entrusted with the task of urban development as to the
parameters required to be followed while granting sanction for use of
various properties in the city. The Master Plan, however, can also serve
as a legal instrument to test the validity of land usage. The law to this
regard seems to the fairly settled in as much as off late the courts in the

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country have been emphasising the use of land strictly in terms of the
notified Master Plans.
In this post we bring to you a not too long back pronounced decision of
the Delhi High Court wherein a Division Bench headed by the then Chief
Justice himself discussed the various legal aspects of a notified Master
Plan, in that case the Master Plan 2021 for Delhi. The High Court was
examining the correctness of the actual land usage at Ajmal Khan Park
in Karol Bagh of Delhi in a public interest litigation which alleged
violation of various norms and in particular the Master Plan of 2021 in
respect of the usage of the park. In this respect the Bench discussed the
legal position of a Master Plan in the following terms;
37. The settled law as regards the sanctity of master plan norms
as explained in several decisions of the Supreme Court and the
High Courts may be noticed. In Dr. G.N. Khajuria v. Delhi
Development Authority, AIR 1996 SC 253 the Supreme Court
disapproved of the conversion of an area meant for a park for
the use of a school. The Court on that occasion observed as
under:
“the land which was allotted to respondent No. 2 was
part of a Park. We further hold that it was not open to
the DDA to carve out any space meant for park of a
nursery school. We are of the considered view that the
allotment in favour of respondent No. 2 was misuse of

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power, for reasons which need not be adverted. It is,
therefore, a fit case, according to us, where the
allotment in favour of respondent No. 2 should be
cancelled and we order accordingly. The fact that
respondent No. 2 has put up some structure stated to
be permanent by his counsel is not relevant, as the
same has been done of a plot of land allotted to it in
contravention of law. As to the submission that
dislocation from the present site would cause difficulty
to the tiny tots, we would observe that the same has
been advanced only to get sympathy from the Court
inasmuch as children, for whom the nursery school is
meant, would travel to any other nearby place where
such a school would be set up either by respondent No.
2 or by any other body.”
38. The inviolability of the provisions of a statutory Master Plan
was explained by the Supreme Court in Bangalore Medical
Trust v. B.S. Muddappa (1991) 4 SCC 54. It explained the
legal position thus (SCC, p. 69):
”The scheme is a statutory instrument which is
administrative legislation involving a great deal of
general law­making of universal application, and it is
not, therefore, addressed to individual cases of persons
and places. Alteration of the scheme must be for the

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purpose of improvement and better development of the
City of Bangalore and adjoining areas and for general
application for the benefit of the public at large. Any
alteration of the scheme with a view to conferring a
benefit on a particular person, and without regard to
the general good of the public at large, is not an
improvement contemplated by the section.”
In the same decision it was further emphasized that a space
earmarked for a particular purpose under the Master Plan
cannot be used for any other. It was observed (SCC, p. 70, 75):
“………once appropriated or applied or earmarked by
formation of 'open spaces' or for building purposes or
other development in accordance with a duly
sanctioned scheme should not be used for any other
purpose unless the scheme itself, which is statutory in
character, is formally altered in the manner that the
BDA as a body corporate is competent to alter. This
section, of course, empowers the BDA to lease or sell or
otherwise transfer any property. But that power has to
be exercised consistently with the appropriation or
application of land for formation of 'open spaces' or for
building purposes or any other development scheme
sanctioned by the Government. Property reserved for
open space in a duly sanctioned scheme cannot be
leased or sold away unless the scheme itself is duly

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altered. Any unauthorised deviation from the duly
sanctioned scheme by sacrificing the public interest in
the preservation and protection of the environment by
means of open space for parks and play grounds and
'ventilation' will be contrary to the legislative intent,
and an abuse of the statutory power vested in the
authorities…..”
“Protection of the environment, open spaces for
recreation and fresh air, play grounds for children,
promenade for the residents, and other conveniences or
amenities are matters of great public concern and of
vital interest to be taken care of in a development
scheme. It is that public interest which is sought to be
promoted by the Act by establishing the BDA. The
public interest in the reservation and preservation of
open spaces for parks and play grounds cannot be
sacrificed by leasing or selling such sites to private
persons for conversion to some other user. Any such act
would be contrary to the legislative intent and
inconsistent with the statutory requirements.
Furthermore, it would be in direct conflict with the
constitutional mandate to ensure that any State action
is inspired by the basic values of individual freedom
and dignity and addressed to the attainment of a
quality of life which makes the guaranteed rights a

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reality for all the citizens."
39. In Panchsheel Enclave Residents v. UOI, 2002 (6) AD
(Delhi) 641 (DB) the court prohibited the carrying on of
construction in the vicinity of ancient monuments Blocks A and
A1 of Panchsheel Enclave which fell in an area declared as a
green belt. In EC Pocket Maya Enclave Residents Welfare
Association v. Delhi Development Authority (decision dated
28.8.2006 in WP (C) Nos. 10546­51/2006) the residents of EA,
EB and EC Blocks of Maya Enclave complained that part of an
area meant for a park had been allotted to the third respondent,
IGL, for the purpose of constructing a "CNG mega bus filling
station". This Court held:
“The DDA seems to have proceeded on the assumption
that the Zonal Plans having been changed, there was
no need to inquire further, and the area could be
allotted for use of a mega gas filling station. While the
need to have such a station cannot be doubted, the
balancing of relevant considerations, such as the
developed nature of the park, the substantial amounts
expended to maintain it, every year, its use by
residents all these years, security and safety concerns
on account of the populace and structures, including
residences and educational institution in its vicinity,
and the likely impact of such a gas station on the

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persons living or using the area, had to be necessarily
balanced, particularly in the light of the Central
Government's directive not to use any developed park
for setting up a petrol pump.” “The decision to allot the
land for use by IGL as petrol pump, cannot be
sustained.”
40. In Vivek Srivastava v.Union of India, 2005 (3) AWC
2897 the petitioners contended that the respondents were
planning to construct residential buildings in the "Polo Ground"
which had remained an open land for the last hundred years.
The petitioner alleged that the polo ground acted as the lungs
for the citizens of Allahabad and if the residential buildings
were allowed to be constructed thereon, the “lungs” would get
choked. Further, the constructions would disturb the ecology
and create a serious imbalance in the environment of the city.
Accepting these contentions, the Allahabad High Court held:
“the land in question known as 'Old Polo Ground' measuring
approximately 22.77 acres of land, should not be used for the
residential construction for the married accommodation project
for the married officers of the Army.” Consequently, a writ of
mandamus was issued to the respondents, restraining them
from making any construction on the Polo ground and maintain
it as an open piece of land. In D.D. Vyas v. Ghaziabad
Development Authority, Ghaziabad, AIR 1993 All 57 the
grievance of the petitioners, who belonged to a locality where

25. A P Randhir
the Adu Park was situated, was that though the said area was
earmarked for being developed as a public park, the G.D.A. had
taken no steps to develop it as a public park. Further the
respondents were seeking to carve out plots in such open space
in the plan and sell them for huge profits. The attempt by the
G.D.A. to alter the plan for that purpose was challenged.
Accepting the petition, the High Court held: “Neither the
Authority nor can the State Government amend the plan in
such a way so as to destroy its basic feature allowing the
conversion of open spaces meant for public parks.”
41. The Andhra Pradesh High Court has consistently held that
attempts at changing the use of green areas to commercial and
other purposes in the layout plans would be impermissible in
law. In Sri Ramakrishna Educational Society v.
Chairman, Nandyal Municipality, 2006 (3) ALD 242, it was
held by the High Court of Andhra Pradesh that an area
earmarked as playground in the layout plan could be used by
the residents of Nandyal Town for the purpose of children's
games and sports, for a walking track, growing tree clusters or
as a common meeting place. It was held that “once the layout
was approved considering the playground is part of the common
area, the same cannot be converted into a business/commercial
area by allowing a Rythu Bazar. Such conversion is
impermissible in law.” In Bhagya Nagar Colony Welfare
Association v. Government of A.P., 2003 (4) ALD 74 multi­

26. A P Randhir
storeyed residential complexes/group housing were constructed
and houses were allotted in a portion of the land admeasuring
2,897 sq. yards which had been earmarked as a park/open space.
It was held by the High Court of Andhra Pradesh that the
“Municipality shall immediately take action for demolishing and
dismantling all structures, which have come up in the open area
admeasuring 2897 sq. yards in the layout approved by the
Hyderabad Urban Development Authority, whatever be the
amount spent on such structures, forthwith.” The court however
made an exception for a temple. It said: “The actual area
occupied by Shirdi Sai Baba Temple shall be excluded and other
structures, be it, temporary or permanent, shall also be
dismantled and removed forthwith. The area of about 2,597 sq,
yards after excluding 300 sq. yards occupied by the temple shall
be developed as a park.” In Co­operative Housing Society,
Saleemnagar Limited v. Municipal Corporation of
Hyderabad and others, 2001 (5) ALD 663 the first
respondent had, instead of developing the area as a park, leased
out about 1800 square yards of the park site to the second
respondent for construction of school. Some other
encroachments were also made in the said area. The first
respondent was directed to take appropriate steps for removal of
the encroachments in accordance with law and restore the park
to its original position.
42. In Mittakola Venkata Rama Rao v. Sarpanch,

27. A P Randhir
Grampanchayath, 1998 (6) ALD 343 it was held: “The Gram
Panchayat cannot convert a part of the public park into a
commercial complex and such construction would definitely
have the effect of polluting the environment and ecology of the
park and the town.” The park had been in existence for more
than 70 years and also had a historical importance, which had
“to be preserved not only by the Gram Panchayat, but by every
citizen of Mahaboobabad and in fact they should be proud of
such a park and if necessary it is their duty to develop the park
into a beautiful park, so that the people of the area, including
the children may go and relax during their off time.” In P.
Venkateswarlu v. Govt. of Andhra Pradesh, 2001 (6) ALD
533 the action of respondents 1 to 4 in permitting respondents 5
to 8 to construct a multi­storeyed commercial complex in an
open space reserved for park, according to sanctioned layout,
was held to be illegal. It was observed:
“The Court while considering such a matter is not
concerned with the consequences particularly where it
concerns ecology. A park provides for some lung space.
It is well settled that the community requires certain
lung space and may also use open space for sports and
other recreational activities. Parks or wetlands are also
necessary for the purpose of maintaining ecological
balance. The doctrine of public trust applies in relation
to park wherefor the open space is earmarked for the

28. A P Randhir
purpose of park, and it becomes the statutory duty of
the local authorities and other statutory bodies to
maintain the same. The authorities of the Board have
no right to do away therewith unless the Master Plan is
modified in terms of the provisions of Section 12 of the
1975 Act read with Rules 13 and 13­A of the 1977
Rules. The Development Act, as noticed hereinbefore,
envisages preparation of a Master Plan, which consists
of various zones­the user of such zone is specified
therein. Stages of development are also specified. A
planned development is contemplated under the Master
Plan and Zonal Development Plans. While doing so,
larger public interest must be kept in view. A creature
of a statute therefore cannot be permitted to violate the
provisions of the Act whereunder it was created."
43. In Harijan Layout Sudhar Samiti v. The State of
Maharashtra (1997) 99 Bom LR 434 the Bombay High Court
held that the action of the respondents in Nagpur converting
areas earmarked for green belt/open space for housing purposes
and allotting it to the respondent No. 8was not permissible. It
was observed that: “neither the Development Authority nor the
State Government can amend the plan, in such a way, so as to
destroy its basic feature, allowing the conversion of open space
meant for public parks.” It was further observed: “Undisputedly,
the City of Nagpur is one of the crowded city where the resident

29. A P Randhir
do not get anything but atmosphere polluted by smoke and
fumes emitted by endless vehicle traffics. Besides this, the
pollution is being caused by 'Koradi Thermal Powers house'.
Hence, the importance of public parks, plantations and creation
places cannot be under estimated. The Public Park is a gift of
modern civilisation and is a significant factor, in the
improvement of quality of life. It is, thus, clear that the action of
the respondents.1 to 7, being inconsistent with and contrary to
the legislative intent to safeguard the health, safety and general
welfare of the people of the locality, the orders smack colourable
exercise of powers and are opposed to the statutory scheme.
Thus, it is a fit case, to issue writ of mandamus as prayed by the
petitioners.”
44. In Modern Educational and Cultural Society v. Nizam,
RLW 2007 (4) Raj 3214 the allotment of an open space
reserved as per approved scheme under Rajasthan Urban Areas
(Sub­Division, Reconstruction and Improvement of Plots) Rules,
1975 by the Jaipur Development Authority to a private
person/body for a school was held by the Single Judge to be
illegal. The Division Bench in Nizam v. Jaipur Development
Authority, AIR 1994 Raj 87 affirmed this and held: “The
action of JDA in making allotment of the site in question in
favour of Modern School to establish a school is invalid and
without jurisdiction, being contrary to the legislative intent to
safeguard healthy, safety and general welfare the people of the

30. A P Randhir
locality. It was also opposed to the statutory Scheme/ Plan.” In
Rajasthan Housing Board Shopping Centre Vikas Samiti
v. State of Rajasthan, RLW 2006 (1) Raj 588 the grievance
was that the respondents were permitting vegetable vendors to
construct shops in Park­A in Shastri Nagar, Jaipur. The Court
held: “There is no dispute the park­A was a facility area and
further the Housing Board has not revised the scheme under
Sections 29, 30 and 32 of the Housing Board provisions which
was published in Gazette. The alleged allotment/permission is
also contrary to the scheme as well as the provisions of the
Housing Board and later on transfer of maintenance to the
Municipal Corporation will also not give any right to the
Municipal Corporation to issue the allotment order or grant
permission to construct the platform.“ The action of the
respondents was held to be illegal.
45. In President, Kanan Vihar Development Societyv.
State of Orissa, 2008 (II) OLR 677 the Orissa High Court
observed: “In case a particular area has been earmarked to be
left as open space for public park in order to achieve the
environmental equilibrium, it should not be altered by any
means by any authority unless there were compelling
circumstances and the procedure prescribed by law has to be
followed for the same.”
46. For an instance of courts not permitting an underground

31. A P Randhir
water treatment plant in a park, reference may be made to the
decision of the Court of Appeals of New York in Friends of Van
Cortlandt Park v. City of New York 95 N.Y.2D 623, 630. The
court was informed that the public would be deprived of the use
of the park for five years during which the water treatment
plant would be constructed and thereafter the park would be
restored. That court held that prior legislative approval of the
change in user was mandatory even if the proposal was that the
park would ultimately be restored. Referring to the decision in
Williams v. Gallatin 229 NY 248 the Court of appeals invoked
the “public trust” and said: “Though the water treatment plant
plainly serves an important public purpose – indeed eve the
State Attorney General believes it should be built at the site
selected – our law is well settled: dedicated parks in New York
are impressed with a public trust for the benefit of the people of
the State. Their „use for other than park purposes, either for a
period of years or permanently, requires the direct and specific
approval of the State legislature, plainly conferred .” Our‟
Supreme Court too has reiterated the public trust doctrine as
forming part of the environmental jurisprudence in this country
(See generally M.C.Mehta v. Kamal Nath (1997) 1 SCC 388).
1. Laxman Wamanrao Nagapure Vs. Shankar Haribhau
Adhau, (2014 (3) MH.L.J.791)].When the suit is filed for
removal of an encroachment and for possession of immovable property,

32. A P Randhir
the plaintiff is required to take care to comply with Order VII Rule 3 of
the Code of Civil Procedure, so as to describe the suit property, which is
subject matter of the suit sufficiently, so as to identify appropriately with
boundaries thereof. The plaintiff must be careful to describe the
property by its boundaries, Survey Number/Gat Number with
area mentioning the boundaries on North, East, West and South of the
suit property. Without such description, the trial Court may not be
assisted properly by the plaintiff to pass an effective decree, if
it is passed for the removal of encroachment from the suit
land/property in such cases.
2. SUITS OF ENCROACHMENT AND APPOINTMENT OF
COURT COMMISSIONER
(Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade, 2004
(2) Mh. L.J. 722). (Atmaram Ananda Jagrut Vs. Rajaram and Others,
2014 (3) Mh. L.J. 463).
When the plaintiff sues for removal of an encroachment, it
is expected that he shall annex a map with the plaint. Where there is a
dispute about an encroachment or dimension of a site, the first essential
is to get an agreed map and if the parties cannot agree on one,
the Commissioner must be appointed to prepare the same. Subsequent
reference in the pleadings or judgment to place the mark on a map
should be referred to this map which must be attached to the decree and
signed by the Judge. In absence of such a map, the decree is
probably meaningless and execution means virtually starting the case
overall again. Dispute about encroachment or dimension of site.

33. A P Randhir
Suit involving boundary dispute between the parties –
Court must ascertain that a map is drawn to the appropriate scale by
competent Government official from the office of T.I.L.R. or
D.I.L.R.Commissioner must be appointed by Court to take joint
measurement.
3.EVIDENTIARY VALUE
(Ram Kishore Sen and Ors. Vs. Union of India, AIR 1966 SC
644). (Ushabai w/o Sharadchandra Bannore Vs. Wasudeo s/o
Baliramji Mehare and others, 2004 (2) Mh. L.J.594).
Section 83 of the Evidence Act, 1872 lays down that the Court
shall presume that the maps or plans purporting to be made
by the authority of the Central Government or any State
Government were so made and are accurate. But maps or plans made for
purpose of any cause must be proved to be accurate by the
person who has prepared them. They are post litem motesa and
lack necessary trustworthiness. Hence, there is no presumption of
accuracy in respect of the map or plan which is made for a particular
cause and it goes without saying that a map prepared for the
purpose of a particular suit must, therefore, be duly proved and it
is not admissible in evidence in absence of proof of its
accuracy.
(Kirpashankar Mukundlal Sahu Vs. Tilakraj Khushalchandra
Wadhawan 2010 (6) Mh.L.J. 940) (Reliance : Bishawanath
Rai Vs. Sachhidanand Singh, AIR 1971 SC 1949).
As per Order XXVI Rule 10 of CPC, Mere production of

34. A P Randhir
commissioner's report and it being admitted in evidence by itself does not
prove contents of documents or as to what investigations were
carried out by the Court Commissioner.
4.WHETHER COURT SHOULD APPOINT COMMISSIONER
IN CASE OF ENCROACHMENT
When it is a case of an encroachment, it is always open
to the court, in exercise of powers under Order XXVI Rule 9 of the
Code of Civil Procedure, to appoint Commissioner to examine the
alleged claim of the parties, based on document of title of both the
parties. (Mrs. Fatima Gomes Furtado Vs. Smt. Indirabai Vinayak
Lotikar, 2016(2) Mh.L.J 905).
5.WHETHER EXECUTING COURT HAS POWER TO
APPOINT COMMISSIONER
(Gurram Anantha Reddy Vs. Katla Sayanna C.R.P. No. 2982
of 2014).
In execution proceeding, commissioner cannot be appointed
and in execution proceeding Court has no power to appoint
commissioner under Order XXVI Rule 9 of the CPC, has absolutely no
merit in view of the reason, that as per Order XXVI Rule 18A of the CPC,
the provision of Order XXVI are applicable to the proceeding in execution
of decree or order also.
6.PROOF OF FACT OF ENCROACHMENT
(Krishnarao Vs. Mahadeorao, 1953 N.L.J. Note 230 at page

35. A P Randhir
72).
(i) The cases of boundary disputes and disputes about the identity of
lands are instances, when a Court should order a local investigation
under Order XXVI, Rule 9 of C.P.C.
(ii) Fact of encroachment is a matter of three aspects together,
namely which can be.
(1)seen,
(2)perceived by sense by taking aid of measurement devices,
and
(3) an information based thereon.
(iii) If there be undisputed boundaries, encroachment can be a question
or a matter of fact, which can be seen by a person where encroachment
was witnessed. Fact of encroachment could be a matter of oral
evidence, if the admitted boundaries are destroyable, and have
been destroyed in presence of witness by party making the
encroachment. Such fact of encroachment may be proved partly
by oral evidence.
(iv) Proof of extent of encroachment – Extent of encroachment,
i.e., area, is not a matter to be adjudicated upon oral evidence of any
number of witnesses, who have witnessed the act of encroachment.
(v) Witnesses who may be the persons who have measured the
land allegedly encroached with reference to public records in relation to
the survey numbers or Pot Hissa survey numbers on application by
parties or under order of Courts, can certainly prove the fact of
encroachment in terms of length, breadth, area etc.
(vi) Extent of encroachment cannot be proved in absence 13 of public

36. A P Randhir
records and procedure emerging from Section 36 and Section 60 of
the Evidence Act. (Vijay S/o Shrawan Shende and others Vs.
State of Maharashtra and others, 2009 (5) Mh. L.J.279).
7.WHETHER IT IS MANDATORY ON THE PART OF
CADASTRAL SURVEYOR TO ISSUE NOTICE TO ALL
CONCERNED AND ONLY AFTER THAT, MEASUREMENT
WILL BE BINDING ON THE CONCERNED
(Sahebrao Vs. Sarjerao, 2014 (6) Mh.L.J.553)
Measurement by cadastral surveyor, notice to all concern is necessary. It
is mandatory provision. If the Rules regarding Revenue Survey and
Sub Division of Survey Numbers (1969) framed under Maharashtra
Land Revenue Code, 1966 are seen, it can be said that at the time of
fixing of boundaries as per Rule 16, when there is a dispute, both the
sides need to be heard while fixing boundaries. It is
mandatory provision. Rule 4 of Maharashtra Land Revenue (Boundary
and Boundary Marks) Rules 1969, shows that the boundary marks as
mentioned in these Rules need to be mentioned. Though as per
Rule 13 of Boundary Marks Rules, owner of survey number can apply for
fixing, demarketing the boundary marks, at the time of fixing
boundary mark when there is dispute, notice to other side is
must.
8. IDENTIFICATION OF PROPERTY IN PRESENCE OF
PARTIES
(Subhaga Vs. Shobha, 2006(6) Mh.L.J.545 (SC)).
Suit property identified by the Court Commissioner in presence

37. A P Randhir
of the party with reference to the plots lying as boundary, it is not
necessary to survey all the adjacent lands to find out, whether an
encroachment was made in the suit land belonging to the
plaintiff.
9.ADVOCATE COMMISSIONER CANNOT BE APPOINTED
FOR MAKING AN ENQUIRY ABOUT FACTUM OF
POSSESSION
(K. M. A. Wahab & others Vs. Eswaran & another,
reported in 2008 (3) CTC 597).
Appointment of Advocate Commissioner for making enquiry
about the factum of possession of the property in dispute is
improper since the same has to be adjudicated upon framing
issues and on appreciation of evidence.
(M/s. Benz Automobiles Private Limited Vs. Mohanasundaram,
reported in 2003 (3) Mh.L.J. 391)
AdvocateCommissioner cannot be appointed to find out the
factum, as to who is in possession of the property. Even if
an AdvocateCommissioner is appointed and his report is filed, it can
be questioned by the other side by filing objections, as the dispute
in the suit could be resolved only on the basis of oral and
documentary evidence led by the parties.
10.WHETHER THE COURT IS BOUND BY THE OPINION GIVEN
BY AN EXPERT ON A PARTICULAR FACT IN A CASE
(Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee)
The Court is not bound by the evidence of the experts which is to a

38. A P Randhir
large extent advisory in nature. The Courts have full powers to derive its
own conclusion upon considering the opinion of the experts which
may be adduced by both sides, cautiously, and upon taking
into consideration the authorities on the point on which he
deposes. The opinion could be admitted or denied. Whether such
evidence could be admitted or how much weightage should be given
thereto, lies within the domain and discretion of the Court. The
evidence of an expert should, however, be interpreted like any
other evidence.
11. COMMISSIONER'S REPORT, EVEN THOUGH IT IS
NOT CHALLENGED BY ANY OF THE PARTIES, IS NOT
BINDING ON THE COURT
(Kantaru Sahu And Ors. Vs. Dharma Sahu And Anr., AIR 1983 Ori
259).
Law is equally well settled that the Commissioner's report,
even though it is not challenged by any of the parties, is not binding on
the Court. When parties file no objection to the Commissioner's
report, the Court rightly accepts the report; but such acceptance by
itself does not preclude the parties from challenging the same by cross
examining the Commissioner at the trial or by examining
witnesses and proving documents to nullify the effect of the
Commissioner's report or to place materials from the report itself to
prove that the same cannot be relied upon.
(Hindustan Copper Ltd Vs. New India Assurance Co. Ltd decided

39. A P Randhir
on 10 August, 2010).
Mere proving signature of the surveyor on the survey report by a witness
who knows the signature of the surveyor, does not prove the
contents of the report.
(Chandrarao S/o Hanumantrao Wable Vs. Dhondu Fula Patil,
2012 (2) AIR Bom R. 60).
At the same time, if land is already measured, about which the plaintiff
did not make any grievance, the Court should not opt for allowing
application for re measurement, that too when the evidence
was almost completed.
Hon'ble Bombay High Court in the case of Kashinath
Ramkrishna Chopade Vs.Purshottam Tulshiram Tekade &
Ors., (2005 (4) Mh.L.J.471), wherein it is held that, “Map
prepared by a person who is neither City surveyor nor an expert is not
reliable. From the cited case it can be said that even if a person is expert
in the field, can not be appointed as a Commissioner for the said purpose.
12.Whether measurement of adjoining lands is necessary in
all cases to prove encroachment?
Vijay S/o Shrawan Shende & Ors. Vs. State of Maharashtra & Ors.
(2009 (5) MLJ 279)
Witnesses who may be the persons who have measured
the land allegedly encroached with reference to public records
in relation to the survey numbers or Pot Hissa survey numbers on
application by parties or under order of Courts, can certainly prove the
fact of encroachment in terms of length, breadth, area etc.

40. A P Randhir
(1)Fact of encroachment is a matter of three aspects together, namely
which can be (1) seen, (2) perceived by sense by taking aid of
measurement devices, and (3) an information based thereon.(4) If there
are undisputed boundaries, encroachment can be a question or a
matter of fact, which can be seen by a person where
encroachment was witnessed. Fact of encroachment could be a
matter of oral evidence, if the admitted boundaries are destroyable, and
have been destroyed in presence of witness by party making
the encroachment. Such fact of encroachment may be proved
partly by oral evidence.
(5) Proof of extent of encroachment – Extent of encroachment, i.e.,
area, is not a matter
to be adjudicated upon oral evidence of any number of witnesses,
who have witnessed the act of encroachment.
(6) Witnesses who may be the persons who have measured the
land allegedly encroached with reference to public records in
relation to the survey numbers or Pot Hissa survey numbers
on application by parties or under order of Courts, can
certainly prove the fact of encroachment in terms of length, breadth,
area etc.
(7) Extent of encroachment cannot be proved in absence of
public records and procedure emerging from Section 36 and Section 60
of the Evidence Act. Vijay S/o Shrawan Shende & Ors. Vs. State of
Maharashtra & Ors. (2009 (5) MLJ 279)

41. A P Randhir
Sulemankhan s/o Mumtajkhan and others V/s. Smt.
Bhagirathibai wd/o Digambar Asalmol, cited (supra) Second
Appeal No.45 of 2013, decided on 2.4.2014 also this Court considered
that it is desirable that the learned Trial Judge shall endeavour to get an
agreed map on record and in the absence of such agreed map/plan, can
depend upon evidence obtained through the Court Commissioner who
may be competent Official from the Taluka Inspector of Land Records or
the District Inspector of Land Records who can secure copies of the
necessary public records relating to Gat/Survey Number concerned to
settle the boundaries of the suit properties by carrying out the
measurement after due notice to the parties to the suit as also adjacent
owners/possessors of the suit properties so as to report to the trial Court
with a detailed map to meaningfully assist the trial Court to decide the
suit and pass an effective executable decree in such case.