Bombay High Court

Poposed Nalanda Housing Society ... vs The State Of Maharashtra And ... on 20 December, 2021

Bench: Ravindra V. Ghuge, S. G. Mehare

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                                    (1)

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   11 WRIT PETITION NO.13455 OF 2021

 POPOSED NALANDA HOUSING SOCIETY, AURANGABAD,
  THROUGH IT'S PROMOTER MAHENDRA VITTHALRAO
                           THOMBRE
                             VERSUS
       THE STATE OF MAHARASHTRA AND OTHERS
                                ...
 Mr A. P. Bhandari, Advocate for petitioner;
 Mr S. R. Yadav, A.G.P. for respondent Nos.1 to 4;
 Mr S. S. Thombre, Advocate for respondent No.5;
 Mr S. S. Deve, Advocate for respondent No.6

                                CORAM : RAVINDRA V. GHUGE
                                              AND
                                        S. G. MEHARE, JJ.

DATE : 20th December, 2021

PER COURT:

1. The petitioner has put forth prayer clauses (B), (C), (D) and

(E), which read as under :-

"B) By a Writ of Mandamus or any other suitable writ, order or direction, the respondents no. 2 to 6 may kindly be directed to acquired the land Survey no. 34/2 (Admeasuring 6 Acres) of Village Bhavsingpura, Tal. & Dist. Aurangabad owned by the Petitioner by following due process of law.

C) By a Writ of Mandamus or any other suitable writ, order or direction, the respondents no. 2 to 6 may kindly be directed to take steps as per communication dated 20.04.2018 issued by Respondent no. 1 (Exhibit O),

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12.07.2019 (Exhibit R) and Directions dated 11.01.2021 (Exhibit S) and handover possession of land Survey no. 34/2 (Admeasuring 6 Acres) of Village Bhavsingpura, Tal. & Dist. Aurangabad to the Petitioner.

D) By a Writ of Mandamus or any other suitable writ, order or direction, Respondent No. 4 be directed to measure the land Survey no. 34/2 (Admeasuring 6 Acres) situated at Bhavsingpura, Aurangabad (writ property).

E) This Hon'ble court may be pleased to issue writ of mandamus or any other appropriate writ, order or directions in the nature of writ thereby restrain the Respondent No. 5 and 6 from objecting and interfering in the measurement the land Survey no. 34/2 (Admeasuring 6 Acres) situated at Bhavsingpura, Aurangabad (writ property) to be carried out by Respondent No.4 and further direct to provide necessary assistance for the said measurement."

2. On 14/12/2021, we had passed the following order :-

"1. Issue notice to the respondents returnable on 20.12.2021. The learned AGP waives service of notice on behalf of respondent Nos. 1 to 4. Shri. Thombre, the learned advocate, waives service of notice on behalf of respondent No.5. The learned ASGI waives service of notice on behalf of respondent No.6.

2. Since a short issue is involved pertaining to the measurement of the land, we re listing this matter in the urgent admissions category on 20.12.2021."

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3. We have heard the learned Counsel for the respective sides.

Shri. Thombre, the learned Advocate representing respondent

No.5 and Shri. Deve, the learned Advocate representing

respondent No.6 seek time to file an affidavit-in-reply.

4. Having realized that this matter hardly impinges the rights

of respondent Nos.5 and 6, we feel that this petition need not be

kept pending for the reasons recorded hereinafter.

5. The petitioner-Society claims to be the owner and possessor

of six acres of the land in Survey No.34, specifically identified as

Survey No.34/2. There are four sub-divisions in Survey No.34,

which are now allotted different sub-survey numbers. However,

the change in the number would not cause any alteration or

change in the land at issue. The petitioner has deposited

Rs.16,500/- as fees with the TILR and seeks measurement of

Survey No.34/2. To avoid any confusion, the petitioner is willing

to deposit additional fees so as to get the entire Survey, inclusive

of four sub-divisions measured.

6. Shri. Thombre and Shri. Deve together have opposed this

petition vehemently contending that the entire land of 724 acres in

the possession of respondent No.5 - University, out of which

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some portion is leased out to respondent No.6 - Sports Authority

of India (SAI), in all admeasuring about 724 acres, should be

measured at the cost and expenses of the petitioner.

7. The petitioner had initially preferred Regular Civil Suit

No.82/2010 putting forth the following prayers :-

"(a) The perpetual injunction to restrain the defendant No.1;

(I) From interfering and obstructing the lawful and peaceful possession of the plaintiffs over the suit properties;

(II) From making obstacles in the development of the suit property by the plaintiffs.

(III) From closing the entry gate fixed at the west side of the suit properties.

(b) Mandatory injunction directing defendant No. 1 to remove the compound wall."

8. The said suit, along with the counter claim of respondent

No.6 - SAI, has been dismissed. A Regular Civil Appeal was

filed by the petitioner, which was unconditionally withdrawn. In

these circumstances, Shri. Thombre submits that this petition

should be dismissed as the petitioner has no cause to approach

this Court.

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9. We called upon the learned A.G.P. to state, as to what would

be the steps to be taken by the Revenue Authorities if the land

owner deposits the requisite fees for seeking measurement. He

submits that, in the normal course of business and as per the

procedure, the authorities would measure the said land and would

submit a report. This is subject to the boundary marks to be

shown by the applicant so as to enable the TILR to focus on the

portion of the land, ownership of which is claimed by the

petitioner and proceed to measure the land. If certain deficiencies

come to the notice of the TILR, his report and sketch would speak

louder than words.

10. We find that respondent Nos.5 and 6 are mixing up the issue

as regards Regular Civil Suit No.182/2010 with reference to

prayer Clause (B) and (D) put forth by the petitioner. In fact, the

Trial Court has recorded in paragraph 10 of it's judgment dated

02/04/2012 that, "In fact title of the plaintiffs over the suit

properties is not in serious dispute, indirectly the defendants

admit that the plaintiffs Nos. 1 and 2 own certain land out of Gat

Nos.34/2 and 34/4." Subsequently, the Trial Court proceeded to

dismiss the suit for the following reasons :

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"The Plaint as well as the counter claim of defendant No.1 suffers by the provisions of order VII Rule 3 of the CPC. In such fact situation, the plaint and counter claim are required to be dismissed. As there is no mention of property in the counter claim finding as to issue No.3 which pertains to the title of the defendant No.1 is required to be answered as does not survive and all other issues in the negative."

11. Even in paragraph 12, the Trial Court has recorded that

sufficient evidence was not placed before it to identify the

property and there was an absence of measurement record and

evidence of Surveyor of the map.

12. The learned Advocate for the petitioner submits that he has

virtually been made remediless. His suit is dismissed as there was

no measurement. When he seeks measurement, the University

insists that 724 acres should be measured which is their land

excluding the six acres of the petitioner.

13. In view of the above, we find that neither the University -

respondent No.5 nor SAI - respondent No.6, would have any role

to play insofar as measurement of Survey No.34 is concerned.