1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 953 0F 2010 *** Vidyasagar S/o Pratapsing Surana, Age: 62 years, Occu.: Agril. & Business,R/o Jeur (Baijabaiche), Tq. Ahmednagar,District Ahmednagar, Through General Power of Attorney Holder Shri Anil Vidyasagar Surana, Age: 35 years, Occu.: Agril. & Business, R/o Jeur (Baijabaiche), Tq. And District Ahmednagar. ... PETITIONER VERSYS Suresh S/o Rangnath Kale, Age: 37 years, Occu.: Agriculture, R/o Bahirwadi, Post Jeur (Bajabaiche), Tq. and District Ahmednagar. ... RESPONDENT. *** Mr. D. R. Adhav, Advocate for the Petitioner. *** 1. Heard learned counsel for the Petitioner. This writ petition is filed by original plaintiff in Regular Civil Suit NO.129 of 2007. Copy of the plaint is on record Annexure-A. Description of the suit property is given in para 1 of the suit. This suit is amongst two private individual citizens. Para 16 of the plaint seeks the decree for perpetual injunction against the Respondent/ defendant, restraining him from carrying out any construction for any purpose i.e. either for residential, commercial, industrial etc. This suit 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. appears to have been filed by the petitioner/ plaintiff on 3rd March, 2007. The suit has been followed by an application for temporary injunction. Copy of the said application is on record, page 62. Prayer made therein is, seeking temporary injunction against the Respondent/ defendant that the defendant shall not carry out any construction either for residential, commercial or industrial purpose. This suit and application was taken up before the trial Court on 2nd April, 2007. The trial Court directed notice to defendant, returnable on 12th April, 2007. 2. The trial Court, after hearing the parties on Application Exhibit-5, in Regular Civil Suit No.129 of 2007, allowed the application and restrained the defendant, his agents, servants temporarily from carrying out any construction either for residential, commercial, or industrial purpose in the suit property i.e. 80 Ares of land out of Gat No.154 of village Bahirwadi. This order is passed on 7th August, 2007. Counsel for the Petitioner took me through the order passed by the trial Court. In para 4, the trial Court has observed that for the last several severs the plaintiff is running business of storing and selling explosive and magazines. According to the counsel for the Petitioner, somewhere on 23rd March, 1987, plaintiff has purchased land Gat No.230/2 (Old Gat 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. No.2250) from its owner Mr. Bhagwat Kale. Since then the plaintiff is owner and possessor of the suit land Gat No.230/2. The suit property is used for storing explosive and magazines. Plaintiff has constructed three godowns with permission of the Gram Panchayat concerned. On 28th November, 1987 measurements have been carried out. Suit property is fenced. Suit property, according to the plaintiff, is being used for non-agricultural purpose. Permission from the Collector, Ahemdnagar was obtained on 15th September, 1989. Plaintiff also did apply to the department concerned that is the department of explosive, Government of India, Nagpur and after following the procedure no objection certificate was granted by the Collector and permission of the explosive department was also granted. It is further contended by the plaintiff that subsequent to the transaction of the plaintiff, defendant purchased 80 Ares of land out of Gat No.154 from one Mr. Ananda Kale, by registered sale deed dated 7th February, 2007. In para 6 of the order, trial Court observed that prima facie land of the plaintiff seems to be situated at village Jeur and the land of the defendant is at village Bahirwadi. Trial Court observed that two Gram Panchayats are different. Trial Court was of the opinion that resolution of Gram Sabha produced on record by the defendant did 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. not carry weightage. Trial Court opined that fare question is raised to be tried or considered by the Court and, therefore, there is prima facie case in favour of the plaintiff. The trial Court has also considered the contention of defendant for construction of cattle shed. Ultimately, trial Court allowed the application filed by the plaintiff. 3. Order passed by the trial Court was challenged by filing Misc. Civil Appeal before the first Appellate Court. It was Misc. Civil Appeal No.87 of 2007. The first Appellate Court allowed the appeal by the judgment and order dated 2nd December, 2009. Needless to mention that, the order passed by the trial Court below Exhibit-5 is upset by the first Appellate Court. In para 12, the first Appellate Court did refer the description of property Block No.2250 at village Bahirwadi. The first Appellate Court found that in the plaint property described is Block No.2250/2 situated at village Jeur and not at village Bahirwadi. The first Appellate Court observed that the description of the property given in the plaint para 1-A and the licence to possess explosive does not tally. Lincence was valid up till 1977. First Appellate Court also observed that it has been renewed up to 31st March, 2007. The first Appellate Court recorded the date of filing of the suit as 31st March, 2007. According 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. to the first Appellate Court period of licence was over on the date of filing of the suit i.e. on 31st March, 2007 and there is no evidence to show that licence has been extended. Counsel for the Petitioner points out copy of the licence, page 21 Annexure-A. I have perused this document, copy of the licence. Date appears to be 5th April, 1995. This was valid for two years or up till 31st March, 1997. Another extension produced on record, page 29, is pointed out by the counsel. It is dated 9th April, 1997, again for the time of two years i.e. 31st April, 1999. Thereafter, page 31, is the document dated 1st May, 2001 i.e. renewal of licence for two years. Copy of the last renewal pointed out by the counsel for the petitioner is page 36 dated 5th February, 2009. This is up till 31st March, 2011. Though it appears that these documents have not been referred to by the first Appellate Court, but, then, the first Appellate Court, in para 13, has referred two resolutions passed by the Gram Panchayat Bahirwadi. Earlier was resolution 1985 giving consent by said Gram Panchayat for constructing godown for storing explosives. The first Appellate Court has observed, in para 13, now the said Gram Panchayat has raised objection and the copy of that resolution has been produced in the Court below. It is resolution No.6 dated 1st May, 2007. On 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. these two grounds, the first Appellate Court quashed and set aside the order passed by the trial Court. 4. Issue i.e. storing explosive in village, either at Bahirwadi or Jeur, is significant, sensitive and serious. Gram Panchayat concerned has raised objection. This seems to be the dispute regarding location of such godown. All these disputes can be resolved by the civil Court, on evidence. Prima facie, I do not feel that case for invocation of extraordinary jurisdiction for quashing and setting aside the first Appellate Court's order is established. 5. Writ petition stands dismissed in limine. No order as to costs. 6. Counsel for the petitioner, at this stage, seeks early hearing of the suit. Suit is of 2007. The trial Court shall decide the suit expeditiously on its own merits and in accordance with the provisions of law. [S.B.DESHMUKH, J.] Dated:08/02/2010. ans/953