1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL APPLICATION NO.858 OF 2010 IN WRIT PETITION NO.50 OF 2010 Ramnagar Sahakari Gruha Rachana Sanstha Maryadit .. Applicant Vs 1.Shri Baburao Kondiba Bhavdhane & Ors .. Respondents Mr S.M.Gorwadkar i/b Mr B.S.Phad, for the applicant. Mr N.R.Bubna, for respondent no.1, i.e.the petitioner in the writ petition. Mr R.M.Patne, AGP for respondent nos 2 to 4, i.e. respondent nos 1 to 3 in the writ petition and nos 2 and 3 in C.A. CORAM : D.B.BHOSALE, J. DATE : 13/04/2010. PC: 1. Heard learned counsel for the parties. 2. By this civil application, the applicant-society, that is respondent no.4 in the writ petition, has prayed for vacating the interim relief granted by this court while admitting the writ petition filed by respondent no.1. The writ petition assails the order dated 27.10.2009 passed by the Collector and the Memorandum dated 7.7.2008 issued by the Revenue and Forest Department, Government of Maharashtra. T 2 3. The writ petition was admitted on 5.1.2010. Admittedly, the applicant-society was not before the court when the petition was admitted and the interim relief was granted. While admitting the writ petition, in paragraph 2 of the order, the following interim order was passed. “2. Respondent nos 1, 2 and 3 represented by the learned AGP shall not create any third party interest of any nature in any society or its members or allow any construction to be put up on any part of the land described in the writ petition pursuant to the possession receipt dated 30.10.2009 until further orders.” 4. Mr Gorwadkar, learned counsel for the applicant, submitted that before the aforesaid order was passed the land was allotted to the applicant-society vide order dated 27.10.2009 by the Collector and they were put in possession thereof immediately thereafter and that the society had commenced construction even before the aforesaid order was communicated to them. He further submitted that respondent no.1, instead of taking appropriate remedy available in law, has filed the present petition and, therefore, it deserves to be dismissed on this ground. 3 5. It appears that some members of the applicant-society had filed Writ Petitions in this court, bearing Writ Petition Nos 4305/1997, 3659/1993 and 1112/1996. The first two writ petitions were disposed of by the order dated 27.9.2000, whereas the third writ petition was disposed of vide order dated 24.4.2003. While disposing of the first two writ petitions, the Division Bench had made the following observations in paragraphs 4 and 5 of the order, which read thus; “4. In the circumstances, we feel it appropriate to direct the District Collector, Pune to forthwith consider the pending applications/representations with regard to the allotment of the said land in favour of the Societies formed by the members belonging to VJ & NT community, namely the petitioners herein. The Collector, Pune shall decide the pending applications/representations and pass appropriate order thereon expeditiously and preferably within a period of two months from the receipt of this order. We make it clear that the Collector Pune shall consider all the aspects of the matter, including the question of eligibility and entitlement of the society as well as of the member of the society, before passing the final order. In case the applications, representations made on behalf of the petitioners are not available on the records in the office of the collector Pune in that case the Collector Pune shall proceed to treat this writ petition as an application made on behalf of the petitioners. The Collector Pune shall also permit the parties to file further documents,if any, in support of their claim. 5. As this stage, it is pointed out by the counsel for the petitioners that third party rights are likely to be created in respect of the suit land for which reason it was essential to direct the parties to maintain status quo. This request is reasonable. We 4 accordingly direct that the parties to maintain status quo with regard to the properties in question till the matter is finally decided by the Collector Pune and for a further period of two weeks from the date of service of the final decision of the Collector on the parties to enable the aggrieved parties to take recourse to appropriate remedy available in law. In the circumstances, both these writ petitions succeed in the above terms with no order as to costs.” (emphasis supplied) The third writ petition was also disposed of in terms of the order passed in the first two writ petitions and more particularly in terms of paragraphs 4 and 5 thereof. The petitioner, instead of taking recourse to appropriate remedy, challenging the order of the Collector dated 27.10.2009, filed the present writ petition. 6. From perusal of the order (dated 27.9.2000) passed by this court, it is clear that the Collector was directed to decide the pending applications/representations made by respondent no.4- society and pass appropriate order thereon expeditiously. The Collector was directed to consider all aspects of the matter including the question of eligibility and entitlement of the society as well as of the members of the society before passing final order. Parties were further directed to maintain status quo with regard to the property in question till the matter was finally 5 decided by the Collector and for a further period of two weeks from the date of service of the final decision of the Collector on the parties to enable the aggrieved parties to take recourse to appropriate remedy available in law. 7. Mr. Bubna, learned counsel for respondent no.1, i.e. the petitioner in the writ petition, sought confirmation of the order passed by this court in terms of paragraph 2 of the order dated 5.1.2010 and in support thereof, made the following submissions. He submitted that the Collector has not obeyed the directions issued by this court in paragraph 4 of the order passed in Writ Petition Nos 4305/1997 and 3659/1993. The Collector was directed to verify eligibility and entitlement of the society and its members before passing the final order. He submitted that the income tax certificates of the members and/or their eligibility was not verified by the concerned authority before passing final order accepting the list of members submitted by the society and allotting the land vide order dated 27.10.2009. He then submitted that this court in the aforementioned writ petitions had directed the parties to maintain status-quo for a period of two weeks with regard to the properties in question. This direction was also not followed by the Collector, and the land was allotted and given in possession 6 of the applicant.-Society within less than two weeks from the date of the order. Lastly, he submitted, that the land allotted to the society is a forest land and, therefore, the order allotting the same for development was wrong and illegal. 8. From the submissions of Mr Bubna, learned counsel for respondent no.1, that is, the petitioner in the writ petition, it is clear that the main objection of the petitioner is to the eligibility of the members which, according to the petitioner, was not verified by the concerned authority as directed by this court. Though such contention was urged, Mr Bubna fairly conceded that the petitioner, in the writ petition, has not named any member, who was not fulfilling the eligibility criteria for admission as a member of the society. . Even across the bar, when I asked Mr Bubna, he could not name a single person in the list of the members, who, according to him, did not comply with the eligibility criteria to become member of the society. The applicant-society, on the other hand, has placed a letter dated 2.8.2008, issued by the social welfare department (Exh.14) stating that they verified all 218 members and they all belong to N.T category. Even in the impugned order (dated 27.10.2009) it is clearly mentioned that it is necessary to get the list of members approved within six months from the date of allotment 7 from the Social Welfare Department. That apart, the main objection of the petitioner is that some undeserving persons were admitted as members of the society. This submission can, very well, be considered at the stage of final hearing of the writ petition. The construction, which the society has already commenced, need not be stayed for this purpose. The society can and should make it clear to the members that the construction and their admission as members of the society would be subject to approval in terms of the impugned order. If the petitioner desires to challenge admission of any particular member/s of the society, it is open for him to make such member/s party to the petition. 9. Insofar as the contention urged by Mr Bubna, learned counsel for respondent no.1, that despite the order of status-quo granted by this court vide order dated 27.9.2000, the land was allotted and possession thereof was given to the society immediately thereafter, is concerned, it is clear that by order dated 27.9.2000 the parties were directed to maintain status- quo with regard to the properties in question till the matter was finally decided by the Collector, Pune and for a further period of two weeks from the date of service of final decision. It is true that possession receipt was issued on 30.10.2009, but 8 admittedly the society did not start development/construction activity on the land till the period of two weeks, as per the order of this court, got over. That apart, even the petitioner did not challenge the impugned order dated 27.9.2000 within two weeks as provided for in the order of this court dated 27.9.2000. 10. Insofar as the last submission regarding the disputed land being forest is concerned, respondent no.4-society in their reply affidavit, have stated that on 23.12.1978, in exercise of the powers conferred under section 27 of the Indian Forests Act, 1927, the Government of Maharashtra had deleted the area admeasuring 2 H 86 R from and out of Survey No.35/2 and 9 H 38 R from survey no.36 of village Warje, being reserved forest and accordingly relevant entries were effected in the revenue records. This has not been disputed by the learned AGP appearing for respondent nos 1 to 3. Even the impugned Memorandum dated 7.7.2008 does not make any reference to the deleted land vide order dated 23.12.1978. Moreover, the petitioner has not challenged the order dated 23.12.1978 in the present petition. In the circumstances, respondent no.4-society cannot be restrained from proceeding with the construction/development on the allotted land. Thus, the interim order passed by this Court dated 5.1.2010 is vacated. 9 The civil application is disposed of in terms of this order. (D. B. Bhosale, J.)