WRIT PETITION 216 of 2010 on 17 April 1974

1 cp216.10.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :NAGPUR BENCH : NAGPUR.

CONTEMPT PETITION NO. 216/2010IN

WRIT PETITION NO. 1251/2007

(Old Grain Market Sindhi Shopkeepers Association vrs. State of Mah. and others)

----------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Ordersor directions and Registrar's order Court's or Judes's Order

----------------------------------------------------------------------------------------------- Shri R.L.Khapre, Advocate, for the PetitionerSmt. K.R.Deshpande, AGP, for the respondents 1 to 4.Shri V.P.Panpalia, Advocate, for Respondent no.5

Coram : R.K.Deshpande, JthDate : 19 JULY, 2012.

In Writ Petition No. 1251/2007, decided on 29[th ]September, 2009, by the Division Bench of this Court, it was held that site No. 102 of Akola is reserved for shopping Centre and the then Municipal Council Akola had also passed a resolution for that purpose. It has also been held that the Municipal Council agreed to surrender plot nos. 31, 40 & 41 on Sheet No. 27D to the Government for the purpose of shopping centre. In view of this, this Court directed the respondent nos. 1 and 2, the State Government and the Collector to proceed further to take possession of the site in question if there is no other legal impediment and consider the claim of members of the petitioner for rehabilitation in accordance with 2 cp216.10.odt law. It was directed to take appropriate steps by 31[st ]January, 2010.

It is not in dispute that the Municipal Council has surrendered plot Nos. 31, 40 & 41 of Sheet No. 27D to the respondent nos. 1 and 2 viz. the State Government and the Collector. It is also not in dispute that the possession of the said plots has been taken by the Government. Hence, to that extent, the order is complied with.

The only dispute is regarding the allotment of plots to the members of the petitioner association. The Collector, Akola, has filed an affidavit dated 8[th ]March, 2011, which has been sworn in on 25[th] March, 2011. The stand is taken that the eligibility of 82 persons was required to be examined in the light of Government Circular dated 17.04.1974 for allotment of plots. For that purpose, a press note was issued and individual notices were actually served upon 71 persons, but the representative of only 3 persons chose to remain present. It is also the stand taken in para 9 that if the refugee-claimants come forward individually with supporting documents that fulfill the conditions laid down in the Government Circular dated 17.04.1974, the respondent nos. 3 and 4 are ready to allot land to them as per the order dated 3 cp216.10.odt 29.09.2009 passed by this Court. If the claimants are not coming forward then it is not a case of non- compliance of the order passed by this Court.

Shri Khapre, the learned counsel appearing for the petitioner submits that there was no occasion for the respondent to make an enquiry about the eligibility of the members for allotment of plots in terms of Government Circular dated 17.04.1974 for the reason that a list of 82 persons was already prepared in terms of the said Government Circular. Hence, denial for allotment of plots on the ground that they are required to establish their eligibility is contrary to the order passed by this Court.

This Court has directed the respondents to consider the claim of the members of petitioner association for rehabilitation in accordance with law if there is no other legal impediments. There was neither any occasion for this Court to decide the question of eligibility of all the 82 members for allotment of plots nor this Court has actually decided any such question. Hence, the direction to consider the claim shall include the decision on eligibility also. It cannot, therefore, be said that to judge the eligibility was in breach of order passed by this Court. None of the members of the petitioner Association 4 cp216.10.odt approached the respondents to satisfy the claim on the basis of Government Circular dated 17.04.1974. If the members of the petitioner association approache the Collector, it is stated that the Collector shall consider their claims.

In the affidavit, it is also the stand taken that out of 3 plots, only 1 plot is available i.e. plot no.40 for the shopping complex. In Civil Suit No. 305/2009, the order of status quo has been granted in respect of land admeasuring 290.75 sq.mtrs and the only land available from plot no. 40 is 1920.85 sq.mtrs. The other plots viz. plot nos. 31 and 41 pertains to the existing road and the land from it cannot be allotted. There is no complaint about non-allotment of these two plots to urge contempt. There are 38 plots in the area admeasuring 1920.85 sq.mtrs. of plot no. 40, whereas, the members of the petitioner association are 82. Hence, the scrutiny will have to be done and without that no allotment can be done. It is not the adjudication in writ petition that the members of the petitioner association are eligible for allotment.

Shri Khapre, the learned counsel appearing for the petitioner submits that the petitioners have approached the Collector and the State Government 5 cp216.10.odt for common allotment of land out of plot no.40 in favour of all 82 members of the petitioner association so that comprehensive plan for development of the land for 82 shops complex can be submitted.

It is open for the respondents to consider any such proposal, however, no such direction can be issued in this contempt petition to consider such proposal. For the present suffice it to say that there is no case of violation of the order passed by this Court.

Shri Khapre, the learned counsel for the petitioner further submits that the order of status quo passed by the Civil Court was without jurisdiction and hence, the Collector could have taken steps to evict those persons. In view of the fact that this Court has directed consideration of claims if there is no other legal impediment and the fact that there exists a legal impediment of the status quo order passed in Civil Suit No. 305/2009 in respect of land admeasuring 290.75 sq. mtrs., in Plot No. 40, the Collector cannot proceed to evict those persons.

In view of this, the contempt petition is dismissed.

JUDGE

Rvjalit