Bombay High Court
Shailendra S/O Surendra ... vs State Of Mahrashtra, Thr. ... on 22 September, 2021
Bench: S.B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
PUBLIC INTEREST LITIGATION NO. 50 OF 2018
1. Shailendra s/o Surendra Srivastav,
aged about 32 years, Occ: Business,
R/o Near J.M. Patel College, Swami
Vivekanand Ward, Bhandara.
2. Ajay s/o Gopichand Meshram,
Aged about 34 years, Occ: Business,
R/o Ambedkar Ward, Bhandara.
3. Dr. Nitin s/o Devendra Turaskar,
Aged about 49 years, Occ: Doctor,
R/o Near Patel College, Swami
Vivekanand Ward, Bhandara.
4. Satish Radhesham Sarve,
Aged about 45 years, Occ: Business,
R/o Plot no.59, Madhav Nagar,
Bhandara.
5. Suryakant Tarachand Llame,
Aged about 43, Occ: Business,
R/o MSEB colony, Rajgopal Ward,
Bhandara. PETITIONERS
...Versus...
1. State of Maharashtra, through its
Secretary of Department of Tourism
and Cultural Affairs, Mantralaya, RESPONDENTS
Mumbai-440022.
2. The Archaeological Survey of India,
Through its Director General, Janpath,
New Delhi-110011.
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3. Nagar Parishad Bhandara through its
Chief Officer.
4. District Collector, Bhandara.
5. Abhay Rameshrao Bhagwat,
Aged about 46 years, Occ: Business,
R/o Khat Road Bhandara.
6. Ajay Rameshrao Bhagwat,
Aged about 46 years, Occ: Business,
R/o Khat Road Bhandara.
7. Akshay Ulhasrao Chitnavis,
Aged about 26 years, Occ: Business,
R/o Khat Road Bhandara.
8. Pankaj Rambilas Sarda,
aged about 40 years, Occ: Business,
R/o Shastri Nagar, Bhandara.
9. Budhai Commercial Pvt. Ltd. Through
its Director Pankaj Rambilas Sarda
Shastri Nagar Bhandara.
10. Urmiladevi Rambilas Sarda,
aged about 58 years, Occ: Business,
R/o. Shastri Nagar, Bhandara.
11. Meghshyam Maroti Pandhare,
aged about 62 years, Occ: Business,
R/o. Nandanvan Nagpur.
12. Sanjay Tejram Khotle,
aged about 52 years, Occ: Business,
R/o. Madhavnagar Khat road,
Bhandara.
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13. Khushal Domluji Shivankar,
aged about 54 years, Occ: Business,
R/o. Asagaon, Tah: Paoni and
Dist. Bhandara.
14. Manorama Ashok Pande,
Aged 71 years, Occ. Business,
R/o. 39, Ratan Nagar, Mankapur,
Nagpur.
15. Yogesh Ishwariprasad Pande,
aged about 64 years, Occ. Business,
R/o. Sahjeevan Society, Opp. L.A.D.
college, Gandhingar, Nagpur.
16. Shobha Aditya Mishra,
aged about 72 years, Occ. Business,
R/o. B-8, POratham Tah Green Park,
Extension Hose Khas South West Delhi.
17. Vibha Shirish Tiwari,
aged about 58 years, Occ. Housewife,
R/o. 3709, Milan Vihar, opp. I.P.
Extension, Janakpuri, East Delhi.
18. Avadesh Ishwariprasad Pande,
aged about 57 years, Occ. Business,
R/o. Ganesh Bhawan, Civil Lines,
Nagpur.
19. Umesh Ishwariprasad Pande,
aged about 63 years, Occ. Business,
R/o. Plot no.9, E-Block, Mecosabagh,
Nagpur.
20. Anup Ishwariprasad Pande,
aged about 63 years, Occ. Business,
R/o. Flat no.5, Sharun Apartment, Plot
no.417, E-Sector CIDCO, N/1, CIDCO
Colony, Aurangabad.
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21. Amar Jagdishprasad Awasthi,
aged about 60 years, Occ. Business,
R/o. B-6/33, 1st floor, N.I. Flat of DOA
Domlur, 2nd steet, Bangalore-560071.
22. Divya Alok Saxsena,
aged about 47 years, Occ. Household,
R/o. Dwarka 138, Sector-9, Pocket 2,
New Delhi.
23. Anurag Ashok Pande,
aged about 50 years, Occ. Business,
R/o. 39, Bankhede Kanshal Shrinagar,
Nagpur.
24. Amit Ashok Pande,
aged about 47 years, Occ. Business,
R/o. 39, Ratan Nagar, Mankapur,
Nagpur.
25. Akhil Ashok Pande,
aged about 40 years, Occ. Business,
R/o 39, Ratan Nagar, Mankapur,
Nagpur.
26. Palak Nitin Dubey,
aged about 37 years, Occ. Business,
R/o. Flat No.402, Anusha Apartment,
ChikdiGarden Opp. Shoper Stop Benam
Peth, Sikandrabad, Hyderabad.
27. Nikhil Mukesh Pande,
aged about 37 years. Occ. Business,
R/o. A-3709, Milan Vihar, opp. I.P.
Extension, Janakpuri, East Delhi.
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Shri P.S. Chawhan, Advocate for the petitioners.
Ms. Ketki Joshi, G.P. for respondent Nos. 1 & 4.
Shri U.M. Aurangabadkar, Advocate for the respondent No.2.
Shri M.I. Dhatrak, Advocate for the respondent No.3.
Shri S.V. Manohar, Senior Advocate a/b Shri N.A. Gaikwad,
Advocate for the respondent Nos. 5 to 13.
Shri P.V. Vaidya, Advocate for respondent Nos. 14 to 18, 20, 22
to 27.
Shri A.B. Mirza, Advocate for the intervener.
-----------------------------------------------
CORAM : SUNIL B. SHUKRE &
ANIL S. KILOR, JJ.
DATED : 22nd SEPTEMBER, 2021.
ORAL JUDGMENT :- (Per Sunil B. Shukre, J.)
Heard learned counsel for the parties.
2. Rule, Rule made returnable forthwith. Heard finally by
the consent of learned counsel appearing for the parties.
3. Time has been sought on behalf of the respondent
No. 4/Collector, Bhandara for filing of reply by him. Although, the
learned counsel for the petitioners has no objection for granting
further time to respondent No.4/Collector, Bhandara rather the
petitioners desire that the respondent No.4/Collector, Bhandara must
file reply as they consider his reply to be necessary for resolving the
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dispute involved in this litigation in a reasonable manner, we do not
think that any further time should be granted to the respondent
No.4/Collector, Bhandara for filing a reply, in view of the fact that lot
of opportunities have already been granted to him, and if he has not
availed of those opportunities, there is no reasonable assurance that
he will utilise this time and file his reply. Besides, there is an interim
relief granted by this Court which is in operation and the facts
admitted by parties show that the property in question is a private
property and it does not enjoy the status of protected or ancient
monument, and even the heritage property. Therefore, request for
grant of further time made for respondent No.4 is rejected.
4. This Court has granted interim relief on 04.04.2018 and
the interim relief continues even today and this is on the backdrop of
the fact that the property in question, "Pande Wada Mahal" stated to
be an ancient monument by the petitioners is a private property,
1/3rd of which has been sold out to respondent Nos. 5 to 13 and that
this property has not been declared to be an ancient monument or
protected monument under the The Maharashtra Ancient
Monuments and Archaeological Sites and Remains Act, 1960
(hereinafter to be referred as "the said Act"), as the State of
Maharashtra has found that making of such declaration is not
practicable.
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5. Shri Chawhan, learned counsel for the petitioners
submits that the respondent No.1/State of Maharashtra, is of the
opinion that the property involved in this litigation being part of rich
legacy of Bhandara District deserves preservation and conservation,
it being part of heritage of Bhandara City, and therefore, the
respondent No.1/State of Maharashtra, as seen from its reply filed on
20.09.2019, has left it to the wisdom of the respondent
No.4/Collector, Bhandara to take steps relating to inclusion of Pande
Wada in the Heritage list.
6. As pointed out by Shri S.V. Manohar, learned Senior
counsel appearing for respondent Nos. 5 to 13, the prayers made in
this litigation, however, do not indicate that any declaration has been
sought for inclusion of the property in Heritage list and, therefore,
there is no need for this Court to wait for seeing as to what steps are
taken by Collector Bhandara, in this regard. The prayers only
indicate that the petitioners are desirous of obtaining protection for
the structure as being ancient monument under the said Act. The
question then would arise, as to whether or not this litigation should
be entertained by this Court at all when the State Government has
already rejected the proposal for declaration of the said property as
ancient or protected monument under the said Act. This question
would have to be examined in the light of the steps taken by the
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petitioners themselves at the time when the preliminary notification
was issued by the respondent No.1/State of Maharashtra, which was
published during the period from 19 to 25 th April, 2012 in the State
Gazette.
7. The petitioners, in this litigation, have not specifically
averred that they had raised any objections against or made any
submissions in support of the preliminary notification that was issued
inviting objections etc. regarding declaration of "Pande Mahal" as
State protected monument. Learned counsel for the petitioners
admits, on instructions, that the petitioners did not make any
submissions or objections when the preliminary notification was
issued.
8. It is further seen from the record that after publication
of the preliminary notification, the issue of finalizing the preliminary
notification was considered by the respondent No.1/State of
Maharashtra and it was found that "Pande Wada" could not be
declared as State protected monument under the provisions of the
said Act for some practical reasons, and accordingly, by the
notification issued on 23.06.2015 (Page No.97), the State
Government cancelled the preliminary notification. It is further seen
that after the cancellation of preliminary notification, the sale-deed
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of the subject property was executed. It is only after all these events
had taken place that this litigation came to be filed questioning the
notification dated 23.06.2015 cancelling the preliminary notification
and seeking a direction to the respondents to take necessary steps for
the protection of the monument on the ground that the monument is
an ancient monument.
9. The PIL has been filed on 27.03.2018, almost about
three years after the notification dated 23.06.2015 was issued and
about an year after the sale-deed was executed. Against the
background of the facts referred to earlier, where the parties have
changed their positions relying on notification dated 23.06.2015 and
have acquired rights and also incurred liabilities, it would be highly
unjust for these parties, if they are now called upon to reverse their
position and wait for the authorities to reconsider and review their
decision, which they may or may not. As such, we do not think that
this litigation could any more be entertained by this Court. If the
petitioners have not made any submissions, inspite of giving of an
opportunity to them for supporting the preliminary notification and
if the petitioners have not approached this Court before or
immediately after the final notification cancelling the preliminary
notification was issued, and have approached this Court after a lapse
of about three years from the issuance of the notification dated
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23.06.2015 cancelling the preliminary notification without any
reasonable explanation, the petitioners would have no ground to
stand on for taking up a cause in a Public Interest Litigation, and that
too when the property sought to be declared as protected or ancient
monument is private and petitioners do not propose a specific plan
showing as to how the private owners would be compensated and
from which funds, whether sourced from public exchequer of the
State or from donations made by Bhandara citizenry.
10. There is another aspect of the matter. While the
petitioners state that the monument is an ancient monument, the
respondent No.1/State of Maharashtra is of the opinion that the
monument could be considered to be a part of Heritage of Bhandara
District, and therefore, could be considered to be preserved by taking
necessary steps in the matter. But, for that matter, the issue ought to
have been pursued by the petitioners with respondent
No.4/Collector, Bhandara and Heritage Committee appointed for
District of Bhandara, which appears to have not been done by the
petitioners.
11. As per the format given for filing of Public Interest
Litigation in terms of Rule 4(c) of the Bombay High Court Public
Interest Litigation Rules, 2010, the essential requirement which must
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be fulfilled by the petitioner for filing a Public Interest Litigation is
that the petitioner must conduct thorough research in the subject
matter raised through the litigation and make necessary pleadings in
accordance with the result of the research carried out by the
petitioner. Such thorough research in the present case, which could
be gauged from discussion made earlier, is lacking here.
12. For the reasons stated above, we find that this litigation
cannot be entertained by this Court. It stands dismissed with cost of
Rs.10,000/-, (Rs. Ten Thousand Only) to be deposited in the account
of High Court Bar Association, Nagpur for the purpose of library
within four weeks, failing which same shall be recovered as arrears
of land revenue. We, however, grant liberty to the petitioners to
pursue the independent remedy, if available in law before the
Competent Authority, provided cost of Rs.10,000/-, (Rs. Ten
Thousand Only) is paid, as directed.
13. Intervention Application No. 1050/2019 stands disposed
of in above terms.
JUDGE JUDGE
S.D.Bhimte
