1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CIVIL APPLICATION NO. 3107 OF 2007 IN WRIT PETITION NO. 594 OF 2007 1. MADHUKAR NAMDEO RAUT ) 2. RAHUL MADHUKAR RAUT ) 3. NARAYAN KISAN RAUT ) 4. NITIN NARAYAN RAUT ) All residing at 10, Panmala ) Colony, Parvati, Pune. ) Respondents 3 to 6 represented ) through Power of Attorney Holder RITESH VIJAYKUMAR MEHTA,residing at H. No.326, M.G. Road, Ashok ) Vijay, Camp, Pune - 411 001. ) .. APPLICANTS Versus 1. PUNE MUNICIPAL CORPORATION ) Shivaji Nagar, Pune 411 005 ) 2. THE MUNICIPAL COMMISSIONER ) PUNE MUNICIPAL CORPORATION ) Shivaji Nagar, Pune 411 005 ) AND 1. THE STATE OF MAHARASHTRA ) 2. SHRI RAJESH TOOPE ) Minister for State, Urban ) Development Department, ) 2 Mantralaya, Mumbai 400 032 ) Mr. P. K. Samdani with Mr. Purohit, Ms. Menon and Mr. Mehta i/b Wadia Ghandy & Co. for applicants Mr. R.G. Ketkar for R-1 (Org. Petitioners) Mrs. M. P. Thakur, AGP CORAM: SMT. RANJANA DESAI SMT. R. S. DALVI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 14TH JANUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 24TH JANUARY,2008 JUDGMENT:-(Per Smt. Ranjana Desai, J.) . The applicants are original respondents 3 to 6. The 1st respondent is the original petitioner i.e. the Pune Municipal Corporation ("the PMC" for short). 2. The applicants had filed a writ petition being Writ Petition No.6426 of 1999 against the PMC and others in respect of the land bearing Survey Nos. 120A, 120B, 124/A corresponding to Final Plot No. 545 and Survey No. 133 all situated at village Parvati, Taluka Haveli, District Pune ("the said property" for short) inter alia praying that action of the PMC in acquiring Survey No. 120A and 120B 3 without compensation and/or in not handing over vacant possession of 11 Acres and 8 Gunthas from S. No. 133 be quashed. The applicant had prayed for an interim relief restraining PMC from handing over possession of S. No. 120A and 120B, Town Planning Scheme No. 3, Final Plot No. 545 to anybody in pursuance of the minor modification carried out under Section 37 of the Maharashtra Regional Town Planning Act, 1966 ("MRTP Act" for short.) 3. Almost simultaneously with the filing of the said writ petition the applicants had also filed an appeal under Section 90 of the MRTP Act, before the Government of Maharashtra. Admittedly the reliefs claimed in the said appeal were similar to the reliefs claimed by the applicants in the writ petition. 4. On 9/8/2000 a Division Bench of this court issued Rule on Writ Petition No. 6426 of 1999. Interim relief was, however, rejected. The PMC was directed to release the amount of compensation within eight weeks as per the Arbitrator’s Award with simple interest at the rate of 9% per annum from 1/1/78. Special Leave Petition filed by the applicants against refusal of interim relief was 4 dismissed by the Supreme Court on 16/10/2001. 5. On 8/4/2004, the appeal filed by the applicants making similar prayer was disposed of by the Government. Order dated 8/4/2004 passed by the Government provided that the Final Plot No. 545 (which pertains to Survey Nos. 120A, 120B and 124/2) was to be included in the Residential Zone and the same was to be returned to the original owner i.e. the applicants. The PMC was directed to complete the action of making the changes as per Section 90 of the MRTP Act and was directed to submit the proposal to the Government of Maharashtra. The order further stated that it would come into effect only after Writ Petition No. 6426 of 1999 is withdrawn by the applicants. 6. In or around May 2004, admittedly 12 allottees preferred writ petitions in this court challenging the abovementioned order dated 8/4/2004. On 14/6/2004 Division Bench of this court admitted the said writ petitions and confirmed the ad-interim order passed by learned Single Judge thereon staying the Government order dated 8/4/04. Thus the Government Order dated 8/4/04 is stayed pending the said petitions. A statement was made by 5 learned counsel appearing for the applicants that they intend to file civil suit to establish their title. This court observed that in case such a suit is filed it will be decided on its own merits. Contentions of the parties were kept open. This court clarified that there is no interim injunction against the construction. It was further clarified that any construction made on the suit property shall be subject to the outcome of the petitions. 7. On 24/1/2007 the applicants withdrew Writ Petition NO. 6426 of 1999. The instant writ petition was filed by the PMC on 16/7/07 challenging order dated 8/4/04 passed by the Government. On 24/1/07 Division Bench of this court has issued Rule on the instant petition and stayed Government order dated 8/4/04 pending the petition. Thus Government order on which the applicants are placing heavy reliance is stayed and the petition filed by the applicants stands withdrawn. 8. We are informed that suit filed by the applicants is pending. 9. In this civil application the applicants 6 contend that the PMC is likely to sell and dispose of the said property. It is submitted that Government order dated 8/4/2004 is subjudice in this court and if the PMC is allowed to sell the said property irreparable harm would be caused to the applicants. If order dated 8/4/04 is held to be valid by this court applicants would be severely prejudiced. 10. We have heard Mr. Samdani, learned counsel for the applicants and Mr. Ketkar learned counsel for the PMC. 11. We notice that similar prayer made by the applicants was rejected by this court on 9/8/2000 Special Leave Petition filed against refusal of interim relief was rejected by the Supreme Court. It is, therefore, not possible for us to entertain the same prayer again. 12. Mr. Samdani submitted that challenge to Government order dated 8/4/04 was entertained by this court in twelve writ petitions because they are filed by allottees who have altered their position on account of allotment. Mr. Samdani submitted that the PMC has challenged order dated 7 8/4/04 belatedly. PMC has yet not created third party interest in some of the plots. Interest of the applicants qua those plots needs to be protected. 13. It is not possible for us to take this view. Order dated 9/8/2000 indicates that it was argued before this court that the brick-kilns standing on Survey No. 133 have not been shifted to Survey No. 120A-B and 124/2 as per the Arbitrator’s Award. It was prayed that till the brick-kilns on Survey No. 133 are not shifted and the applicants are put in possession of the said Survey No. 133. PMC should not allow use of land Survey No. 120A & B and 124/2 for residential purposes. This court observed that therefore, the applicants were praying for interim injunction against the PMC as well as occupants of Survey No. 120A/B and Survey No. 124/2. This interim injunction was not granted. Special Leave Petition filed against refusal of this interim relief was dismissed by the Supreme Court. It is not possible for us to now restrict the said order to some of the plots and grant interim relief in respect of the remaining. In any case, the construction made on the said property will always be subject to the outcome of 8 the present petition. 14. In the circumstances, civil application is dismissed. 15. At this stage, learned counsel for the applicants prays that this order may be stayed. Prayer is rejected. JUDGE JUDGE 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL APPLICATION NO. 3107 OF 2007 IN WRIT PETITION NO. 594 OF 2007 DATE ON WHICH THE JUDGMENT IS RESERVED : 14TH JANUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:___TH JANUARY,2008 Transcription of Judgment / Order. Submitted for approval. THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE (SMT.) JUSTICE : R.S. DALVI: 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or ) not? ) 3. Whether Their Lordships wish to ) 10 see the fair copy of the Judgment? ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )