STATE OF MAHARASHTRA Vs. VITTHAL
HIGH COURT OF BOMBAY (AT: NAGPUR)
STATE OF MAHARASHTRA
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R.K.DESHPANDE, J. -
(1.) The respondents are the original plaintiffs, who filed Special (State) Civil Suit No.14 of 1996 for declaration that any portion or the construction of the plaintiff No.1, particularly shown by Roman numerals V, VI, VII and VIII in the map annexed with the plaint is not an encroachment on the road and for permanent injunction restraining the defendant from demolishing the said structure of the plaintiff No.1 and damages of Rs.60,000/along with interest. The suit was dismissed by the Trial Court on 23102001. In Regular Civil Appeal No.157 of 2001 preferred by the plaintiff No.1, the lower Appellate Court, by its judgment and order dated 612004, has set aside the decision of the Trial Court and a decree has been passed in favour of the plaintiff No.1. Hence, the original defendant is before this Court in this second appeal.
(2.) Two questions were involved before the Courts below
(i) whether the construction made by the plaintiff No.1, which is the subjectmatter of the suit, is an encroachment over the land owned by the State Highway Authorities?, and (ii) whether the procedure prescribed under Section 23 of the Bombay Highways Act, 1955 was followed? The Trial Court holds that the construction was on the property of the State Highway Authorities, which was an encroachment, and a notice issued under Section 23 of the said Act was duly served upon the plaintiffs. The lower Appellate Court has reversed the findings of the Trial Court on both these aspects. The ownership claimed by the State Highway Authorities is based upon the notification dated 1941967 issued by the Government of Maharashtra, published in the official gazette, in exercise of the powers conferred by Sections 3, 4 and 6 of the Bombay Highways Act, 1955. The lower Appellate Court has held that the original notification was not produced, and hence the notification produced was not admissible in evidence.
(3.) The matter was admitted on 2012005 and the substantial questions of law framed, is reproduced below :
" Whether the Appellate Court erred in not taking judicial notice of the Govt. Notification dated 19.4.1967?" ;
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