Tarachand Devisahay Gupta vs State Of Maharashtra And Anr
2022 Latest Caselaw 9358 Bom

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO.9259 OF 2022


           Tarachand Devisahay Gupta                             .. Petitioner
                      v/s.
           State of Maharashtra & Anr.                           .. Respondents



           Mr. Harshad Inamdar for the petitioner.
           Ms. Chaitrali A. Deshmukh for the respondent no.2-NMC.
           Mr. A.I. Patel, Addl. G.P. a/w Mrs.A.A. Purav, AGP, for respondent no.1.
           Mr. Rakesh Rathod a/w Ajinkya Udane, Special Counsel, appointed for
           the State of Maharashtra.


                                                      CORAM : R.D. DHANUKA &
                                                               KAMAL KHATA, JJ.

DATED : 16TH SEPTEMBER, 2022.

P.C. :

1. Rule.

2. Heard the learned counsel for the parties. Learned Special

Counsel waives service for respondent no.1. Mr. Deshmukh,

learned counsel waives service for respondent no.2.

3. By this petition filed under Article 226 of the Constitution of

India, the petitioner has impugned the letters dated 15 th June, Digitally signed by SANDHYA SANDHYA BHAGU BHAGU WADHWA

WADHWA Date:

2022.09.19 18:00:15 +0530

910.wp-9259-22(civil).doc wadhwa 2022 and 11th July, 2022 addressed by the Department of Social

Justice and Nasik Municipal Corporation respectively to stay the

construction being carried out by the petitioner without hearing

the petitioner and without assigning any reasons.

4. It is the case of the petitioner that the petitioner had purchased

the property bearing Survey no.31/2, plot no.17 and 18,

admeasuring 1 Hector 50 Ares located at Agartakli Shivar, Nashik,

Nashik Pune Highway, Upnagar Nashik. In the proceedings

arising out of Special Darkhast no.43 of 2005, public auction was

conducted on 2nd March, 2006 and 25th July, 2006. The

petitioner was declared as successful auction purchaser. The sale

was confirmed in favour of the petitioner. The petitioner has been

carrying out construction for last 3 years on the said plot.

5. It is the case of the State Government that the judgment debtor in

the said Civil Suit was not the owner of the writ land and thus,

suit itself was not maintainable against the said judgment debtor

i.e. Sanghmitra Magaswargiya Gruhnirman Sanstha, Nasik.

6. It is the case of the State Government that the property does not

belong to the judgment debtor thus could not have been sold in

910.wp-9259-22(civil).doc wadhwa public auction and thus the petitioner herein does not get any

right, title or interest of any nature whatsoever in the said land.

7. The learned Special Counsel for the State Government does not

dispute that since 2012, an enquiry is going on against the alleged

wrong doers in respect of the land which was sold in public

auction in favour of the petitioner.

8. This Court passed an order on 2nd March, 2021 in Writ Petition

(St) no.93685 of 2020 in the case of Fakira Motiram Jagtap v/s.

Sanghmitra Magaswargiya Gruhnirman Sanstha Maryadit and

Ors. recording the statement made by the learned AGP that an

appropriate action would be taken by the State Government

against the persons whose names are indicated in the enquiry

report dated 21st December, 2012 in accordance with law within

four weeks from the date of the said order.

9. It is the case of the State Government that in pursuance of the said

order passed by this Court, the impugned directions were issued

by the Department of Social Justice on 15 th June, 2022 to the

respondent no.2 to stay the construction over the petitioner's

land. The Nasik Municipal Corporation acted upon the said

directions issued by the Department of Social Justice by issuing

910.wp-9259-22(civil).doc wadhwa notice dated 11th July, 2022.

10. In our prima facie view, the action initiated by the

respondents against the petitioner could not have been initiated in

view of the fact that the petitioner has purchased the writ

property in an auction conducted by the Civil Court. The auction

sale is confirmed in favour of the petitioner.

11. Learned Special Counsel for the State Government states

that the State Government would be advised to file an application

before the Civil Court for setting aside the decree passed by the

Civil Court and confirming the sale of the property in favour of

the petitioner.

12. We are not expressing any view on the merits of the

application that would be made by the State Government in the

said Suit, if any.

13. All contentions of the parties in the proceedings proposes to

be adopted by the State Government are kept open.

14. There shall be interim relief in terms of prayer clause (c).

15. Municipal Corporation have already granted sanction to the

910.wp-9259-22(civil).doc wadhwa plan submitted by the petitioner for carrying out construction on

the writ land as far back as on 31st May, 2020 and has issued

Commencement Certificate simultaneously.

16. It is made clear that the construction if continued by the

petitioner shall be without claiming any equity.

17. The respondent would be at liberty to apply for

modification of the interim stay granted by this Court, in case any

order is passed by the Civil Court setting aside the decree passed

by the Civil Court resulting in public auction of the property in

question.

           (KAMAL KHATA, J.)                          (R.D.DHANUKA, J.)





910.wp-9259-22(civil).doc
wadhwa