:1: :1: :1: FARAD CONTINUATION SHEET IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1852 OF 2008 -------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s or directions and Registrar’s Orders Orders -------------------------------------------------------------------------- Mr.Atul G.Damle, Adv. for the petitioners. Mr.Sameer Patil, AGP for respondent nos.1 to 3. CORAM: S.C.DHARMADHIKARI, J. DATED: 24TH MARCH, 2008. P.C. P.C. P.C. : : : 1. Heard learned counsel appearing for the petitioner and the Learned AGP appearing for respondent nos.1 to 3. 2. The presence of Respondent nos.4 to 6 is not necessary as my attention is invited by Mr.Damle to the statements made by these persons before the Collector. In any event, the liability, if any, in the impugned order is :2: :2: :2: that of the present petitioner and therefore presence of Respondent nos.4 to 6 is not necessary. Service dispensed with. 3. Mr.Damle makes a serious grievance that the petitioner is proceeded against by the Authorities pursuant to an order of Collector dated 31.3.2001. That order is an ex-parte order. The petitioner was not heard. The order records that the hearing was held on 17.8.2000, 14.9.2000 and on 14.9.2000 written submissions were forwarded. 4. Even in the written submissions, according to Mr.Damle, a specific case was set up that the alleged encroachment and excavation is done by third persons and not by the petitioner. There is enough material to demonstrate that, inasmuch as, complaints have been made to the police and to the Collector. 5. Mr.Damle, states that the petitioner would abide by such conditions as are imposed :3: :3: :3: by this court including deposit of the amount without prejudice to their rights and contentions. 6. After the perusal of the order passed by the Collector and the Additional Commissioner, it is apparent to me that they have failed to apply their mind to the basic fact with regard to the encroachment and unauthorised excavation. The order of the Collector only refers to the rival contentions but does not deal with them. There are several Documents referred to in the impugned order but their contents are also not adverted to. In such circumstances, the order imposing penalty deserves to be quashed and set aside,but on conditions. 7. Accordingly, it is directed that if the petitioner deposits a sum of Rs.4,80,000/- with the Collector, Mumbai Suburban District, the order dated 31.3.2001 and the order dated 31.10.2007 shall stand quashed and set aside. :4: :4: :4: 8. Mr.Damle, states that the amount would be deposited within a period of 6 weeks from today. If the amount is deposited, the Collector to rehear the matter and pass orders afresh without being influenced by the earlier orders. In default, the Writ Petition to stand dismissed and all orders challenged in the Writ Petition are confirmed. Petition disposed off. No costs. *********