Allowed

Devram Kathod Suroshe and Ors. v. the Deputy Tahsildar, Kalyan and Ors.

Bombay HC26 Mar 2012WP/968/2012

Case brief

AI extract

What is this about?

Division Bench allowed a writ petition challenging the rejection of a mining permission application. The court held that the lower authority must decide the application on merits as per a prior order, setting aside its refusal based on a misunderstanding regarding status-quo.

What did the court decide?

Impugned order of 9.12.2011 set aside; Sub-Divisional Officer directed to consider and decide application on merits within three months.

Devram Kathod Suroshe and Ors. Vs the Deputy Tahsildar… — Specific Performance | Bombay HC (2012)

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jdk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 968 OF 2012

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Devram Kathod Suroshe and ors.

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..Petitioners

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Vs.

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The Deputy Tahsildar, Kalyan and Ors.

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..Respondents

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Mr. C.G. Gavnekar for Petitioners Mr. V.S. Gokhale AGP for Respondent Nos. 1 to 6 Mr. P.S. Dani i/b D.S. Patil for Respondent No. 8

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CORAM : D.D.SINHA AND

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SMT. V.K.TAHILRAMANI, J J.

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DATE : MARCH 26, 2012.

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P.C.:

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1. Rule, returnable forthwith and finally heard by consent of the parties.

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Heard the learned counsel for the Petitioner, the learned AGP for the Respondent Nos. 1 to 6 and the learned counsel for the Respondent No. 8.

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This Writ Petition is directed against the order dated 9.12.2011 passed by the Sub-Divisional Officer whereby the application of the Petitioner for grant of permission to undertake extraction of minerals from survey no. 52 situated at Khambe Taluka Kalyan, Dist. Thane, came to

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be rejected on the ground that there is an order of statusquo in existence passed by this Court in Writ Petition No. 5450 of 2000. The counsel for the Petitioner has submitted that the Petitioner made the application dated 3.10.2009 before the competent authority for grant of permission, which came to be rejected vide order dated 26.11.2009. Being aggrieved by the same, the petitioner on earlier occasion filed Writ Petition No. 7832 of 2010 which was disposed of by this Court vide order dated 10.10.2011 which reads thus:

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“1. The learned A.G.P. appearing for the SubDivisional Officer, Thane, states that the SubDivisional Officer withdraws the order dated 26.11.2009 which is impugned in the petition, and he further states that the application of the petitioners dated 3.10.2009 shall be considered afresh in accordance with law and the decision shall be communicated to the petitioners as expeditiously as possible in any case within a period of six weeks from the date on which the petitioners appear before the Sub-Divisional Officer. The Statement is accepted. The petitioners to appear before the Sub-Divisional

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Officer on 17.10.2011 along with the copy of his application dated 3.10.2009 and the copy of this order. Parties to act on the authenticated copy of this order.”

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It is contended that in view of the above order passed by the Division Bench of this Court, it was necessary for the Sub-Divisional Officer to decide the application of the Petitioner dated 3.10.2009 on merits, however, the SubDivisional Officer did not decide the application on merits on the ground that there is an order of status-quo in existence and if the application of the Petitioner is decided on merits, it will amount to contempt of Court. The counsel for the Petitioner therefore, contended that in view of the order dated 10.10.2011 passed by the Division Bench of this Court, the impugned order cannot be sustained in law.

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Mr. Gokhale, the learned AGP for the Respondent Nos. 1 to 6 has not disputed the factual aspects of the matter, however, he has submitted that since the objection was raised by Respondent No. 8 before the authority concerned, due to the pendency of the other Writ Petitions where initially the order of status-quo was

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passed by this Court, the Sub-Divisional Officer passed the following order:

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“ In respect of land bearing Survey No. 52 and other lands, Shri. Chandrakant Walchand Shah and others have filed Writ Petition Nos. 5445, 5450, 5451 of 2000 in the Honourable High Court and in the said matters, the High Court has passed order dated 2.2.2007 thereby directing to maintain status-quo. The said fact has been brought to the notice of this office by Advocate Shri. Sudhakar Kale by application dated 20.6.2007 and since in the said matters, the order of status-quo passed by the Honourable High Court is in existence and since the matter is subjudice before the court, unless those writ petitions are decided, granting permission to excavate mining from the said land, would amount to contempt of court.

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Therefore, if by making civil application in the said Writ Petitions Nos. 5455, 5450 and 5451 of 2000 filed against you, permission for excavation is obtained from the Court, your application can be considered. Hence, your said

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application dated 3.10.2009, is filed..”

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The counsel for Respondent No. 8 has submitted that if the Court is directing the authority concerned for consideration of the application of the Petitioner dated 3.10.2009, the Respondent No. 8 should be permitted to place the relevant facts before the authority concerned.

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We have considered the contentions canvassed and perused the order dated 10.10.2011 as well as the impugned order dated 9.12.2011. In view of the order dated 10.10.2011 passed by this Court in Writ Petition No. 7832 of 2010 it was incumbent on the part of the SubDivisional Officer to consider the application of the Petitioner dated 3.10.2009 on its own merits and was also duty bound to pass an appropriate order accordingly. However, the perusal of the impugned order shows that the Sub-Divisional Officer did not consider the application of the Petitioner on merits under the misconception of the fact that there is an order of status-quo in existence. It is in these circumstances, we set aside the impugned order dated 9.12.2011 and direct the Sub-Divisional Officer to consider the application of the Petitioner dated 3.10.2009 and decide the same in accordance with law and

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procedure applicable in this regard on its own merits within a period of three months from the date of communication of the order by following principles of natural justice.

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Writ Petition is allowed in above terms with no order as to costs.

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The Petitioner and Respondent No. 8 undertake to appear before the Sub-Divisional Officer on 2.4.2012 at 11 a.m.

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[ SMT. V.K.TAHILRAMANI,J.] [ D.D.SINHA, J. ]

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kandarkar

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Devram Kathod Suroshe and Ors. v. the Deputy Tahsildar, Kalyan and Ors.

Case brief

What is this about?

What did the court decide?

Devram Kathod Suroshe and Ors. v. the Deputy Tahsildar, Kalyan and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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