Dorabh Peshotan Dubash vs The Talathi Village Bhose And Ors
2022 Latest Caselaw 6979 Bom

MUGDHA
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PARANJAPE
Digitally signed by
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Date: 2022.07.25
14:32:47 +0530



                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                    WRIT PETITION NO.6427 OF 2022

                Dorabh Peshotan Dubash                                  ... Petitioner
                     Vs.
                The Talathi Village Bhose & Ors.                        ... Respondents

                                                AND
                                    WRIT PETITION NO.6428 OF 2022

                Dorabh Peshotan Dubash                                  ... Petitioner
                     Vs.
                The Talathi Village Bhose & Ors.                        ... Respondents
                                                 -----

Ms. Aparna Devkar for the Petitioner in both WPs. Mr. P. V. Nelson Rajan, AGP for Respondents No. 1 to 6-State in both WPs.

-----

CORAM: ABHAY AHUJA J.

DATE : 21ST JULY 2022 ORAL ORDER :

1. Heard.

2. Since the facts and the challenge in both the Writ

Petitions are more or less similar, both these Petitions have been

heard together and are being disposed by this order.

3. By these Petitions, the Petitioner is aggrieved that the

Tahsildar, S.D.O. as well as the Additional Collector, Satara have

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confirmed the issuance of the stop work notice alleging that the

Petitioner has excavated various quantities of soil without

permission and passed orders directing Petitioner to deposit

various amounts. The notices had been issued under Section 48(7)

of the Maharashtra Land Revenue Code, 1966.

4. Ms. Devkar, learned Counsel for Petitioner points out

that despite filing a reply clarifying that the excavation was not for

commercial purpose and was only for use of the excavated soil for

levelling Petitioner's own land, the authorities have failed to

consider the same. Learned Counsel for Petitioner draws the

attention of this Court to various judgments passed by this Court.

She specifically draws this Court's attention to the decision in the

case of Rahul Rasiklal Nahar & Ors. Vs. The State of Maharashtra &

Ors. (writ Petition No.2743 of 2010, dated 13 th January, 2015,

authored by Hon'ble Mr. Justice A. S. Oka, as His Lordship then

was) wherein after considering the decision of the Supreme Court in

the case of Promoters and Builders Association of Pune Vs. State of

Maharashtra & Ors.; (2015 ) 12 SCC 736 , the Division Bench of this

Court, has in Paragraph 9 observed as under :-

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"9. We find from the impugned order that the determination as contemplated by the Apex Court has not been made by the Tahsildar. There is no adjudication on the purpose for which the excavated earth has been put to use. Thus, the impugned order has been passed without making the determination of the issue as contemplated by the paragraph 16 of the judgment and order of the Apex Court. The impugned order dated 4th July, 2009 proceeds on the presumption that by mere excavation of earth by the petitioners, sub-section (7) of section 48 of the said Code has been violated."

5. It is clear from the aforesaid Paragraph that unless

there is an adjudication on the purpose for which the excavated

earth has been put to use, the orders would be treated as passed

without making the determination of the issue as contemplated by

the Apex Court's decision in the case of Promoters and Builders

Association of Pune Vs. State of Maharashtra & Ors. (supra) . After

observing as above, the Division Bench of this Court quashed and

set aside the impugned order therein dated 4th July, 2009 as well as

the show cause notice and directed the Tahsildar to make an

adjudication as contemplated in Paragraph 16 of the Apex Court

decision in the case of Promoters and Builders Association of Pune

Vs. State of Maharashtra & Ors. (supra) after giving an opportunity

of being heard to the Petitioners therein.

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6. A perusal of all the orders ending with the impugned

orders dated 26/11/2021 in the two Petitions indicates that

nowhere the said orders have given a finding/adjudication with

respect to the purpose for which the earth/soil excavated by the

Petitioner has been put to use.

7. Mr. P. V. Nelson Rajan, learned AGP for Respondents No.

1 to 6-State was unable to point out any such adjudication/finding

by the authorities except to say that the Additional Collector while

passing his order has observed that Mahabaleshwar is an Eco-

sensitive Zone and confirmed the penalties levied by the lower

authorities. He further submits that against the decision of the

Additional Commissioner, an Appeal would lie under Section 257 of

the Maharashtra Land Revenue Code, 1966 to the Hon'ble Minister

and these Writ Petitions are not maintainable.

8. I have heard learned Counsel for the Petitioner and

learned AGP for the State. Admittedly, none of the orders of the

authorities ending with the Additional Commissioner have given an

adjudication/finding with respect to the purpose for which the

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excavated soil has been used. As far as, learned AGP's contention

with respect to alternate remedy is concerned, this Court also dealt

with a similar plea in the case of Rahul Rasiklal Nahar & Ors. Vs.

The State of Maharashtra & Ors. (supra) and rejected the same in

the light of the law laid down by the Apex Court in the case of

Promoters and Builders Association of Pune Vs. State of

Maharashtra & Ors. (supra). In my view, when a finding on the

purpose for which the excavated soil has been used is missing, no

purpose would be served in relegating the Petitioner to the remedy

of Appeal.

9. In this view of the matter, the two orders dated, viz.,

order dated 26/11/2021 passed in RTS/Re/76/2021 and order dated

26/11/2021 passed in RTS/Re/77/2021 by Respondent No.5-

Additional Divisional Commissioner, Pune Division are hereby

quashed and set aside.

10. Respondent No.2-Tahsildar to issue fresh show cause

notice(s) to Petitioner within a period of two weeks from today. The

Tahsildar shall grant reasonable time to Petitioner to file Reply. The

Tahsildar is also directed to make an adjudication as contemplated

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in Paragraph 16 of the Apex Court decision in the case of Promoters

and Builders Association of Pune Vs. State of Maharashtra & Ors.

(supra) after giving an opportunity of being heard preferably within

a period of four weeks.

11. The order(s) passed by Respondent No.2-Tahsildar shall

be communicated to the Petitioner within one week of passing of the

said order(s).

12. In the event, the order(s) passed by the Tahsildar be

adverse to the Petitioner, to enable the Petitioner to adopt a

statutory remedy, no further steps shall be taken on the basis of the

said order(s) for a period of one month from the date of service of

the order.

13. All other issues raised by the Petitioner are expressly

kept open.

14. The Writ Petitions are disposed of in the above terms.

                                                   (ABHAY AHUJA, J.)




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