AJN 14-OS-WP4413.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4413 OF 2010 Sanjay Tukaram Bhujbal & Ors. ... Petitioners Vs. Pune Municipal Corporation & Ors. ... Respondents Mr. R.S. Apte, senior counsel i/b Mr. Mandar Limaye for the petitioners. Mr. A.P. Kulkarni for respondent 1. Mr. V.S. Gokhale, A.G.P. for the State. CORAM: MRS. RANJANA DESAI & RANJIT MORE, JJ. DATED : 14TH OCTOBER, 2010. P.C.:- 1. Rule, returnable forthwith. By consent of the parties taken up for hearing. The main prayer of the petitioners in the petition is as follows : “(a) for a writ of mandamus, for a writ in the nature of mandamus or for any other appropriate writ, direction or order. AJN 14-OS-WP4413.10 2 i. directing the Respondents to withdraw and cancel the new/corrected demarcation Certificate dt.27.01.2006 issued by the TILR. ii. directing the Respondents to restore the earlier demarcation certificate issued vide measurement registered No.1117 to 1123 of 1999 and 112 of 2005.” 2. It is the case of the petitioners that the Taluka Inspector of Land Records (for short, “the TILR”) had carried out measurements of the petitioners' property situated at Village Pashan, Pune and issued demarcation certificate on 25/2/1999. After obtaining the said certificate, the petitioners prepared layout plan of the said land and submitted it to the Pune Municipal Corporation (for short, “the PMC”) and the PMC on the basis of the said demarcation certificate sanctioned the petitioners' layout plan and issued Commencement Certificate dated 17/11/2003. The PMC also sanctioned the building plan. Pursuant to the same, the petitioners carried out construction. On 18/3/2006, the PMC issued stop work AJN 14-OS-WP4413.10 3 notice to the petitioners. The petitioners filed Regular Civil Suit No.524 of 2006 in the Court of Civil Judge, Junior Division, Pune, challenging the stop work notice. The petitioners prayed for temporary injunction which was partly allowed. The petitioners filed appeal in the District Court, Pune. The District Court allowed the appeal and granted injunction in favour of the petitioners. Thereafter, the PMC issued completion of plinth checking certificate to the construction which was carried out by the petitioners according to the sanctioned building plan, inter alia, including the building which were shown affected by nalla in subsequently issued demarcation certificate without any notice to the petitioners. The petitioners approached the TILR and the matter was referred to the Director of Land Records along with the records maintained in the Office of the TILR. The Director of the Land Records sent letter dated 19/4/2007 to the PMC informing that initial demarcation which was given by TILR was legal and valid. 3. On 2/12/2009, the petitioners submitted proposal for AJN 14-OS-WP4413.10 4 loading the TDR procured by the petitioners from the open market on the land belonging to them. The PMC issued notice dated 12/3/2010 to the petitioners calling upon them to demolish the structure alleging that it was unauthorized. The petitioners challenged the said notice by filing a suit being Suit No.312 of 2010 in the Court of Civil Judge, Senior Division, Pune. Letter dated 22/3/2010 was issued by the PMC to the petitioners that due to new demarcation certificate received by the PMC from the TILR, proposal for loading TDR was on the land affected by nalla and the said proposal cannot be considered. 4. It is the case of the petitioners that the petitioners were not aware of the new demarcation certificate received by the PMC. According to the petitioners after receipt of stop work notice dated 18/3/2006 the petitioners had filed Civil Suit No.524 of 2006 challenging the stop work notice. However, the petitioners did not state in the said stop work notice or even during the pendency of Misc. Civil Appeal No.37 of 2007 about the AJN 14-OS-WP4413.10 5 corrected demarcation certificate. The petitioners later on came to know that the corrected demarcation certificate was issued on 27/1/2006 however, the PMC did not bring that on record. At no point of time such corrected demarcation certificate was issued to the petitioners. According to the petitioners, for the first time, a reference of corrected demarcation certificate was reflected in notice dated 22/3/2010 issued under Section 260(2) of the Bombay Provincial Municipal Corporation Act, 1949. According to the petitioners, the new/corrected demarcation certificate is issued by TILR to the PMC without giving any hearing or opportunity to the petitioners to make out their case and it is made by not taking into account the earlier demarcation certificate. The petitioners' case is that new/corrected demarcation certificate could not have been issued without hearing the petitioners. According to the petitioners, it is a settled legal position that as and when demarcation is directed to be carried out again, it has to be carried out in the presence of the parties and owners. However, in this AJN 14-OS-WP4413.10 6 case, at no point of time, the TILR ever issued any notice or informed the petitioners about the fresh measurement. The petitioners have, therefore, made the above prayers. 5. We find substance in the petitioners' contention that the TILR could not have issued new demarcation certificate by cancelling the old demarcation certificate without hearing the petitioners. This is in breach of principles of natural justice. The petitioners have received notice from the respondents informing them that the construction carried out is not in consonance with the new demarcation certificate and the same should be demolished. 6. It is pertinent to note that initially the demarcation map/certificate was granted in the year 1999 and it is cancelled in the year 2006 without giving notice to the petitioners and without disclosing this fact in any of the proceedings. AJN 14-OS-WP4413.10 7 7. Without expressing any opinion on the merits of the petitioners' case, we set aside the cancellation of demarcation map/certificate dated 27/1/2006 and direct respondent 2 to give hearing to the petitioners and consider the matter afresh and pass appropriate orders. We make it clear that we have not expressed any opinion on the merits of the case and the order be passed independently and in accordance with law. 8. Parties shall appear before respondent 2 on 26/10/2010 and the matter may be considered and appropriate orders may be passed by the respondent within four weeks thereafter. Order be communicated to the petitioners. 9. The petition is disposed of. [MRS. RANJANA DESAI, J.] [RANJIT MORE, J.]