Shivsahyagiri Foundation Kini Thr. Its Kolhapur District Head Vishal B. Patil v. Saluddin S/O Habeeb Shah And ORS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2699 OF 2023 Saluddin Habeeb Shah and Ors.
.. Petitioners Digitally signed by TRUSHA TUSHAR MOHITE Date:
2024.10.04 16:32:21 +0530
Versus
TRUSHA TUSHAR MOHITE The State of Maharashtra and Ors.
.. Respondents WITH INTERIM APPILLCATION NO.10885 OF 2024 IN WRIT PETITION NO.2699 OF 2023 Shivsahyagiri Foundation Kini Thr. Its Kolhapur District Head Vishal B. Patil .. Applicant In the matter between Saluddin Habeeb Shah and Ors.
.. Petitioners
Versus
The State of Maharashtra and Ors.
.. Respondents Mr. S.D.Talekar a/w Ms.Madhavi Ayyappan, Advocate i/b M/s.Talekar and Associates for the Petitioners.
Mr. S.Gorwadkar, Sr.Counsel a/w Mr.Amey Mahadik, Mr.Shrirang Katneshwarkar, Ms.Manjiri Parasnis, Mr.Rutvik Joshi and Mr.Akshay Deshmukh, Advocate for the Applicant Dr.Birendra Saraf, Advocate General a/w Mr.P.P.Kakade, G.P., Mr.S.D.Vyas, Addl. G.P. & Mr.Manish Pabale, A.G.P. for Respondent / State.
CORAM:
B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ.
DATE:
P. C.
1.
The above Writ Petition challenges the Order dated 7th December 2022, issued by Respondent No.4 under which Respondent No.3 was directed inter alia to remove the encroachment in the protected area of the Vishalgad Monument. Challenge is laid to the Notice / Order dated 13th December 2022, issued by Respondent No.3 directing the Petitioners to demolish their structures.
2.
When this matter had come up on 28th February, 2023, it was directed that no coercive action or any action of demolition is to be taken against the Petitioners and the impugned Notice of Eviction / Demolition was stayed. It is an admitted fact before us that the structures of the Petitioners which forms the subject matter of the present Petition have not been demolished either before or after the Order dated 28th February 2023. 3.
Dr.Saraf, the learned Advocate General appearing on behalf of the Respondents submitted that though the Notice / Order dated 13th
December 2022 could be construed as an Order to put an end to the controversy, Dr.Saraf submitted that the same should be treated as Show Cause Notices issued to the Petitioners.
4.
On the Show Cause Notices issued to the Petitioners (Page 104 to 109 of the Paper Book), each of the Petitioners in the present Petition will be entitled to file a Reply, if not already filed, and also be given a personal hearing before any final Order of demolition, if any, is passed. 5.
The learned A.G.P. has further stated that a reasoned Order will be passed in case of each of the Petitions. If for any reason, the reasoned Order is adverse to the Petitioners, or any of them, then the same would not be acted upon for a period of four weeks from the date of service of the said Order.
6.
It is also clarified that in the event, if the Orders are adverse to any of the Petitioners, they are also at that time, free to challenge the Notification dated 27th January 1999, issued under Section 4 of the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960.
7.
Having heard Mr.Talekar, the learned Advocate appearing on behalf of the Petitioners and Dr.Saraf, the learned Advocate General appearing on behalf of the Respondents, and in the peculiar facts and circumstances of the present case, we dispose of the above Writ Petition by passing the following Order:
a.
The Notices dated 13th December 2022 (Page 104 to 109) shall be treated as Show Cause Notices issued to the persons mentioned in the said Notice.
b.
These persons shall be entitled to file a Reply / Additional Reply to the Show Cause Notices (if they so desire). This Reply / Additional Reply shall be filed within a period of two weeks from today.
c.
After the Reply is filed, the Respondent No.3 shall give a personal hearing to each of the Show Cause Notices mentioned in their respective Notices dated 13th December 2022. d.
After the hearing is given, the Respondent No.3 shall pass a reasoned Order. If for any reason, the Order passed by
Respondent No.3 is adverse to the Noticees, or any of them, the same shall not be acted upon for a period of four weeks from the date of service of the Order.
e.
The Noticees will be entitled to raise all contentions against the Notices, during filing of their Reply/Additional Reply, as well as Notices served during the personal hearing given to them before Respondent No.3, including their Applications for regularisation of their respective structures, if any, are pending before the Collector / Respondent No.4. f.
It is needless to clarify that unless this entire process is completed, structures of the Petitioners or the structures mentioned in the Notices annexed at Page 104 to 109 of the paper books shall not be demolished.
g.
Writ Petition is disposed of in the aforesaid terms. However, there shall be no Order as to costs. h.
We may hasten to add that we have not opined on the merits of the matter as to whether the structures which form the
subject matter of the present Petition are legal or otherwise. That will be decided by the concerned authority after following the procedure laid down in this Order.
i.
In light of the disposal of the Petition, nothing survives in any of the Interim Applications therein, and the same are disposed of accordingly.
8.
This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax [FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.]