1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4552 OF 2008 Yohan s/o Gangaram Jadhav R/o Nandgaon, Tq-Nagar Dist-Ahmednagar PETITIONER VERSUS Bira Nana Waghe R/o Nandgaon, Tq-Nagar Dist-Ahmednagar RESPONDENT ....... Mr.V.S.Bedre, Advocate for the petitioner Mr.B.S.Shinde, h/f Mr.V.P.Latange, Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] DATE : 9 th June 2009 PER COURT: 1. By the present writ petition, filed under Article 227 of the Constitution of India, the petitioner, who is the original plaintiff in Regular Civil Suit No.159/2007 on the file of Civil Judge, Junior Division, Ahmednagar, has challenged order dated 19.06.2008 2 passed in Miscellaneous Civil Appeal No.46/2007 by the District Judge, Ahmednagar. 2. Factual matrix, which gave rise to file the present writ petition, can be summarized as under- The present petitioner has filed Regular Civil Suit No. 157/2007 in the court of Civil Judge, Junior Division, Ahmednagar for perpetual injunction against the present respondent not to excavate new well in the suit property, specifically described in the plaint para No.1-B. According to the petitioner, if the respondent constructs a new well within the area of 500 feet not only the water reservoir of his well or the water supply would stop but the excavation is against notification issued by the Geological Department of State of Maharashtra and circulated by the Geological Survey and Development Department, Senior Geological scientist, Ahmednagar vide order dated 24.12.1990. By the said notification, it is notified that there shall not be any construction of a new well within the area of 500 feet from the existing well. In the said suit, the petitioner has filed application for interim injunction, which is contested by the present respondent by filing written statement thereby contending that as the sale deed of the respondent is not challenged by the petitioner before the lower court, the suit as well as the injunction application is not maintainable and same may be dismissed. After hearing both the 3 sides, the learned 5th Joint Civil Judge, Junior Division, Ahmednagar was pleased to allow the said application and passed the order of temporary injunction in favour of the petitioner against the present respondent on 18.05.2007. Being aggrieved by the said order, the respondent preferred a Miscellaneous Civil Appeal No.46/2007 before the District Judge, Ahmednagar, which came to be allowed vide order dated 19.06.2008 and the said order is under challenge in this petition. 3. Heard learned counsel for the parties. 4. It is not disputed, as observed not only by the 5 th Joint Civil Judge, Junior Division in his judgment but also by the District Judge in his order in para 8 that “it is not disputed even at this prima facie stage that the proposed well is within 500 feet from the well of the plaintiff”. Once, it is accepted by both the sides that the proposed well of the respondent is within 500 feet from the well of the plaintiff, which is in existence when the construction of the proposed well was started by the respondent, then the only question arises is whether there is bar for such construction by virtue of the notification issued by the State Government under the seal and signature of Chief Geological Scientist of the Geological survey Department of the State of Maharashtra. Much emphasis was laid or it appears that the 4 District Judge, Ahmednagar is impressed by the provisions of Easement Act and gave by-pass to the notification dated 24.12.1990, which was circulated to all the Block Development Officers in the district of Ahmednagar under the signature of the Senior Geological Scientist from Geological Survey and Development Department for the area of Ahmednagar District. It is not disputed that the suit property as well as suit well is situated within the area / jurisdiction of Ahmednagar district. As the said notification was circulated by the concerned authority through the Block Development Officers in the area of Ahmednagar District, it is binding on all the concerned, whose area is coming under the jurisdiction of the Ahmednagar District. In the premise, once it is established that there is prohibition to construct a new well within the area or 500 feet from the existing well, then such proposed construction of a new well is not permitted under this notification. Whether this notification is good in law or not, cannot be considered while deciding the application for temporary injunction. Considering the fact that the proposed construction of well of the respondent is within 500 feet from the existing well of the petitioner, the order of the District Judge, Ahmednagar in Miscellaneous Civil Appeal No.46/2007 by setting aside the order of 5 th Joint Civil Judge, Junior Division, Ahmednagar is not only perverse, but without application of mind and hence required to be quashed and set aside. In the premise, the order dated 19.06.2008 passed by the District Judge, Ahmednagar in Miscellaneous Civil 5 Appeal No.46/2007 is hereby quashed and set aside and the order passed by the 5th Joint Civil Judge, Junior Division, below Exhibit-5 in RCS No.159/2007 dated 18.05.2007 is restored. Hearing of RCS No.159/2007 is expedited and the same be disposed of as early as possible and in any case or or before 31.12.2009. The writ petition stands disposed of in terms of above order. No order as to costs. [A.V.POTDAR, J.] drp/wp4552-08