Bombay High Court
True Blue Corp Llp vs Tehsildar And Executive Magistrate ... on 28 November, 2022
Bench: R.D. Dhanuka, S.G. Dige
11-wp-8577-2021 with cont. wp..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8577 OF 2021
True Blue Crop LLP ...Petitioner
Versus
Tehsildar & Executive Magistrate
Bhiwandi & Ors. ...Respondents
WITH
WRIT PETITION NO.6022 OF 2021
Digitally signed by
NILAM NILAM SANTOSH
SANTOSH KAMBLE
Date: 2022.12.02
KAMBLE 17:35:55 +0530
Khan Gulam Ahmed Mohammed Hanif ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
----
Mr.Nikhil Sakhardane, Senior Counsel i/b Mr.Siddhesh Bhole,
Ms.Shubra Swami, Mr.Aditya Shende i/b SSB Legal and Advisory
for the Petitioners in WP No.8577 of 2021 and for the
Respondent Nos.9 to 16 in WP No.6022 of 2021.
Ms.Anita Bhaktawani for the Petitioners in WP No.6022 of
2021.
Mr.A.P. Vanarase, AGP, for Respondent Nos.2 to 3-State in WP
No.8577 of 2021 and for Respondent Nos.1 to 6 in WP
No.6022 of 2021.
Ms.Jaya Bagwe a/w Ms.Anchita Nair for Respondent No.18
(MDCB) in WP No.6022 of 2021
Mr.Gorakh B. Phadtare-Resident Naib Tahasildar, Bhiwandi is
present.
----
CORAM : R.D. DHANUKA &
S.G. DIGE, JJ.
N.S. Kamble page 1 of 7
11-wp-8577-2021 with cont. wp..doc
DATE : 28 NOVEMBER 2022
P.C:-
. Leave to amend to implead the Deputy
Superintendent of Land Record, Taluka-Bhiwandi, District- Thane as a Respondent is granted in both these Petitions.
2. The amendment to be carried out within one week. The amended copy to be served upon the other side.
3. The learned AGP waives service for newly added Respondent. Re-verification is dispensed with.
4. By this Petition filed under Article 226 of the Constitution of India, the Petitioner has impugned the notice dated 2 December 2021 issued to the Petitioner under Section 53(1) of the Maharashtra Regional Town Planning Act, 1966.
5. We have heard the learned counsel for the parties and perused the documents and map produced by the parties relating to their respective lands.
6. Our attention is invited to the order dated 6 December 2021 passed by this Court in Writ Petition No.8577 N.S. Kamble page 2 of 7 11-wp-8577-2021 with cont. wp..doc of 2021 in which reference is made to the order dated 1 December 2018 passed by this Court in WP No.6022 of 2021.
7. The Petitioner has applied for regularization of the offending structure. It is the case of the Petitioner that the Application for regularization was not made by the Petitioner in respect of the land bearing Survey No.61/5 which is claimed by the Intervenor (The Petitioner in WP No.6022 of 2021).
8. Mr.Nikhil Sakhardane, the learned Senior Counsel for the Petitioner in WP No.8577 of 2021 invited our attention to the Affidavit-in-reply filed by the Tahasildar, Taluka-Bhiwandi, District-Thane in WP No.6022 of 2021.
9. In paragraph No.3 of the said affidavit-in-reply the Tahashildar has stated that M.R.No.602/2021 shows that no construction is found or in existence on the land bearing Survey No.61/5, 62/14 and 62/12 situated at Post-Devali Tarhe Rahur, Taluka-Bhiwandi, District-Thane. The deponent of the said affidavit-in-reply has also relied on the letter dated 3 November 2021 of the Deputy Superintendent of Land Record, Bhiwandi, Thane alongwith the MR No.602/2021. We are informed that the Petitioner therein has not filed any reply to the affidavit-in- reply filed by the Tahasildar.
N.S. Kamble page 3 of 7 11-wp-8577-2021 with cont. wp..doc
10. Be that as it may, we have considered the arguments of Mr.Sakhardane, learned senior counsel for the Petitioner in WP No.8577 of 2021, who on instructions states before this Court that his client has not constructed any structure on plot bearing Survey No.61/5 and does not intend to carry out any construction on the said plot claimed by the Petitioner in WP No.6022 of 2021.
11. It is vehemently urged by the learned Senior counsel that this Court by an order dated 6 December 2021 had directed the parties to maintain, status-quo in respect of the entire property, including the plots, which are owned by the Petitioner and on which there is no claim made by the Petitioner in WP No.6022 of 2021.
12. It is submitted that, in view of the said status-quo order passed by this Court, the Petitioner is not permitted to carry out any construction on his own land.
13. The learned counsel for the Petitioner in WP No.6022 of 2021 also placed reliance upon the map and the photographs submitted by the Tahsildar and, according to her, the Petitioner has carried out construction on part of the land survey No.61/5 and Survey No.62/12.
N.S. Kamble page 4 of 7 11-wp-8577-2021 with cont. wp..doc
14. In view of the rival contentions made by both the parties, we made a suggestion to the learned AGP if DSLR can carry out demarcation of the plot owned by both these parties and submit a report on whether any construction is carried out by the Petitioner in Writ Petition No.8577 of 2021 on Plot bearing Survey No.61/5 and, if so, to what extent and the status of the construction.
15. The learned AGP has no objection if such directions are issued by this Court as this Court may deem fit. In our view, interest of justice would be met, if we direct the DSLR to visit both these plots, which are the subject matter of this Petition, for the purposes of carrying out demarcation and the DSLR shall draw a sketch of boundary of survey numbers of both the plots and to state the status of the construction, if any, put up by the Petitioner on Plot Survey No.61/5.
16. In our view, the status-quo order passed on 6 December 2021 thus deserves to be vacated, with liberty to both the parties to apply for further orders after submission of the report by the DSLR, if it is found that, the Petitioner had put up any construction on land bearing Survey No.61/5.
17. Both the parties are directed to remain present at site on 5 December 2022 at 10.30 a.m. N.S. Kamble page 5 of 7 11-wp-8577-2021 with cont. wp..doc
18. The learned AGP agrees to communicate this Order to the concerned DSLR with a request for him to remain present on the said date. Both the parties are at liberty to rely upon the documents and the sanctioned plan, if required, at the time of the demarcation of the DSLR.
19. Both the parties shall maintain decorum when the DSLR visit the writ property.
20. It is made clear that the DSLR shall carry out the demarcation and the measurement as per Government Record available with the DSLR. Both the parties, however, are permitted to submit their own records before the DSLR.
21. Both the parties have agreed to pay fees and charges to the DSLR equally, within two days from the date of the DSLR raising the memo in that regard to both the parties.
22. It is made clear that, if according to the Petitioner in WP No.6022 of 2021, any incorrect statement was made by the Petitioner in WP No.8577 of 2021 based on the report submitted by the DSLR or vice-a-versa, both the parties would be at liberty to file appropriate proceedings for such false statement.
N.S. Kamble page 6 of 7 11-wp-8577-2021 with cont. wp..doc
23. The DSLR shall make an endeavor to submit the report before this Court on or before 21 December 2022. The copy of the report shall be made available to both the parties.
24. Both the parties would be at liberty to file their say to the said report, if they so desire, before this Court within two weeks thereafter.
25. Place this matter on board on 9 January 2023 under the caption 'for passing orders'.
(S.G. DIGE, J.) (R.D. DHANUKA, J.) N.S. Kamble page 7 of 7