Bombay High Court
Dinesh Bandu Suryawanshi And Ors vs The State Of Maharashtra And Ors on 8 June, 2016
Bench: S.V. Gangapurwala
1 W.P.No.2670/09
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.2670 OF 2009.
1.Dinesh S/o Bandu Suryawanshi
Age 29 years, Occ.Business,
R/o Plot No.36, Laxmi Narayan
Colony, Shindkheda, Tq.Shindkheda,
Dist.Dhule.
2.Kiran S/o Yeshwant Chaudhari,
Age 28 years, Occ.Service,
R/o Plot No.18-A, Laxmi Narayan
Colony, Tq. Shindkheda,
Dist.Dhule.
3.Gokulsing S/o Pandit Sing Girase,
Age 24 years, Occ.Business,
R/o Plot No.3, Laxmi Narayan
Colony, Shindkheda, Tq.
Shindkheda, Dist.Dhule.
4.Gulab S/o Shyam Badgujar,
Age 41 years, Occ.Business,
R/o Plot No.4, Laxmi Narayan
Colony, Shindkheda, Tq.
Shindkheda, Dist.Dhule. ... Petitioners.
Versus
1.The State of Maharashtra,
through Rural Department and
Revenue Department, Mantralaya,
Mumbai-32.
2. The Collector, Dhule.
3. The Additional Collector,
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2 W.P.No.2670/09
Dhule, .
4. The Sub-Divisional Officer,
Shirpur Dn. Shirpur,
Dist.Dhule.
5. The Tahsildar, Shindkheda,
Dist.Dhule.
6. The Panchayat Samiti,
Sindkheda, through its
Block Development Officer,
7. Zilla Parishad, Dhule,
through its Chief Executive
Officer.
8. The Gram Panchayat Sindhkheda,
through Village Development
Officer.
9. Janata Vidyaprasarak Sanstha,
Shindkheda, through its
Secretary, Shri Manohar Gorakh
Patil, Age 36 years, Occ.Service,
R/o Shindkheda, Dist.Dhule. ... Respondents.
...
Mr.B.R.Waramaa, advocate for the petitioners.
Mr.D.S.Bagul, advocate for Respondent No.6.
Mr.S.S.Deshmukh, advocate for Respondent No.8.
Mr.P.P.Dhorde, advocate for Respondent No.9.
...
CORAM : S.V.GANGAPURWALA AND
K.K.SONAWANE,JJ.
Date : 08.06.2016.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. Mr.Waramaa, learned counsel for the
petitioners submits that the petitioners are the
members of the Cooperative Housing Society in
Laxmi Narayan Colony. Initially one Mr.Agrawal,
was the owner of the land Block No.759 and 760.
He got the said land converted into non-
agricultural use. In the said lay out 2345
Sq.mt. Of the land was shown as open space. The
Respondent No.9 encroached upon the said open
space, made constructions and is exclusively
using it as playground run by Respondent No.9.
According to the learned counsel, even Respondent
No.9 got mutation entry effected in the revenue
record. The same was assailed. The matter was
litigated before the Revenue authorities and
ultimately the name of petitioner was directed to
be deleted. The said order stands even today.
The learned counsel submits that even Panchanama
effectuated also fortifies the contention of the
petitioner regarding encroachment made by
Respondent No.9. The photographs annexed to the
petitioner would also substantiate the said fact.
Even the authorities have imposed penalty of
Rs.44,28,775/- (Rupees forty four lacs twenty
eight thousand seven hundred seventy five) upon
the Respondent for user of the said open space.
The Respondent No.2 to 8 be directed to remove
the said encroachment. The learned counsel relies
on the following judgments :
a) "Bombay Environmental Action Group and
others Vs. State of Maharashtra and others"
reported in 2005 (6) Bom.C.R.574;
b) "Down Mangor Valley, Residents Welfare
Association ig and another Vs. Mormugao Municipal
Council through its Chief Officer and others"
reported in 2002 (3) Bom.C.R.29;
c) "Surendra Ramlal Tiwari and another Vs.
State of Maharashtra and others" reported in
2013(1) Bom.C.R.774;
d) "Vasantrao S/o Vinayakrao Deshmukh and
another Vs. Aurangabad Municipal Corporation and
others" W.P.No.5044/1999 with connected W.Ps.
(Coram : A.V.Nirgude and V.L.Achliya,JJ.) decided
on 5.3.2015.
2. Mr.Dhorde, learned counsel appearing
for Respondent No.9 submits that the open space
can be used as a playground. The Cooperative
Housing Society i.e. Shri Laxmi Narayan
Cooperative Housing Society has given No
Objection to the Respondent No.9 for using the
said open space as playground. The Village
Panchayat has also given No Objection to the
Respondent No.9 to use the said plot as a
playground. According to the learned counsel, it
is only to harass the present Respondent No.9,
the petition is filed. The open space do not
vest with the Village Panchayat.
ig The Respondent
No.9 is also the purchaser of the plot from the
said lay out and is entitled to use the said plot
as a playground. The judgments in the revenue
proceedings are erroneous. Similar Writ Petition
filed by another party has been dismissed bearing
W.P.No.3558/2008. The petition be dismissed.
3. We have also heard learned A.G.P.
4. Considering the arguments canvassed by
the learned counsel for the parties, so also the
pleadings on record, it is manifest that open
space as averred by the petitioner does exist in
the lay out. No debate is required on the
proposition that open space has to be kept open.
No construction is permissible upon the open
space, leave aside any encroachment. The open
space is meant for the use and enjoyment of the
plot holders of the lay out.
5. The judgments relied by Mr.Waramaa,
learned counsel also are on the same lines.
6. Considering the fact that open space as
contended is not disputed. The Respondent No.9
or any other person would not be entitled to
maintain any construction on the said open space
and the construction on the open space will be
required to be removed.
7. As far as penalty is concerned, the
Respondent Nos.2 to 5 are not prevented to take
recourse to law for recovering the same.It is for
the Respondent Nos.2 to 5 to take effective steps
in that regard. In that event, the Respondent
No.9 can agitate all legal grounds.
8. In light of that, we pass the following
order :
a) The Respondent No.9 shall remove the
structures standing in the open space of the lay
out of Block No.759 and 760 of Sindhkheda. In
case the Respondent No.9 fails to remove the said
structures within a period of three (3) months
from today, the Respondent authorities shall take
steps to remove the same expeditiously and the
said open space shall be meant for the use and
enjoyment of all the plot holders of the said lay
out.
b) Rule accordingly made absolute in above
terms. However, with no order as to costs.
Sd/- Sd/-
(K.K.SONAWANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp2670.09
