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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, MILIND N. JADHAV, JJ.
Balraj D. Jadhav – Petitioner
Versus
Union of India through Ministry of Culture, New Delhi – Respondent
Writ Petition No. 10626 of 2019
Decided On : 12-01-2022
Maharashtra Regional and Town Planning Act, 1966 - Section 53(1), 328 - Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Section 20A, 20©, 38, 241 - Maharashtra Land Revenue (villages, town and city survey numbers) Rules 1969 - Ancient Monuments and Archaeological Sites and Remains Rules (framing of Heritage bye-laws and other functions of Competent Authority), 1959 - Rule 38(1) - Declaration of prohibited area and carrying out public work or other works in prohibited area - Whether construction is on CTS - Notice on its very face is vague and insufficient – Held, Court further note that Respondent No. 11 has issued Notice to Petitioner under provisions of Section 20© of said Act for carrying out construction in a prohibited/protected area and thereby invoked penal action under provisions of Section 38 of said Act - Perusal of said Notice shows that property on which construction is carried out is not mentioned in said Notice - Notice is devoid of specific particulars of property, i.e. whether construction - Notice on its very face is vague and insufficient - Respondent being involved in present case could not have made such an omission whilst issuing impugned Notice - All this goes to show that said Notice has been issued by Respondent merely to protect and/or camouflage ostensible illegality of showing said site - Notice is issued by Respondent No. 12-Municipal Corporation-under provisions of Section 53(1) of MRTP Act, inter-alia, alleging illegal construction carried out by Petitioner - This notice once again is prima facie issued incorrectly because it is case of Respondents that said site is located - Therefore, question of issuing any notice to Petitioner for carrying out illegal construction - If true, goes to prove that Petitioner is in possession of ancient site and not concerned - If Petitioner has violated any of statutory provisions of MRTP Act, it is needless to state that consequences will follow and statutory authorities shall pursue same in accordance with law - However, in so far as present controversy is concerned, it is clear that said site cannot be said to be located/situated - Writ Petition stands disposed of.
ORDER :
1. By the present Writ Petition, the Petitioner has prayed for the following reliefs:
“(a) this Hon'ble Court may be pleased to issue a Writ of Mandamus and/or any other Writ, Order or Direction in the nature of Mandamus thereby directing Respondent Nos. 9 and 10 to forthwith withdraw and/or cancel the impugned Survey Report dated 28.05.2018 being Exhibit-Y and the impugned Survey Map dated 28.05.2018 Exhibit-Z respectively to the Petition.
(b) that this Hon'ble Court may be pleased to issue a Writ of Certiorari and/or any other Writ, Order or Direction in the nature of Certiorari thereby directing Respondent Nos. 9 and 10 to forthwith quash and set aside the impugned Survey Report dated 28.05.2018 being Exhibit-Y and the impugned Survey Map dated 28.05.2018 Exhibit-Z respectively to the Petition.
(c) that this Hon'ble Court may be pleased to hold and declare that the ancient site of Brahmapuri of Kolhapur declared as ancient site under the provisions of Ancient monuments and Archaeological Sites and Remains Act, 1958 is not situated in any part of CTS No. 2357 of Kolhapur.
(d) that this Hon'ble Court may be pleased to issue Writ of Mandamus and/or any other Writ, Order or Direction in the nature of Mandamus thereby directing Respondent Nos. 9 and 10 to conduct Survey of ancient site of Brahmapuri of Kolhapur, situated at CTS No. 2355 of Kolhapur and declare that the ancient site of Brahmapuri of Kolhapur is falling within the CTS No. 2355.
(e) that this Hon'ble Court may be pleased to issue Writ of Mandamus and/or any other Writ, Order or Direction in the nature of Mandamus thereby initiating proper action for fabrication of the Survey Map against the concerned Officer occupying office of Respondent Nos. 8 to 10 on 28.05.2018 and directing further action under Indian Penal Code for fabricating public documents and creating false and bogus record.
(f) that this Hon'ble Court may be pleased to direct Respondent Nos. 9 and 10 to issue a fresh Survey Map to the Petitioner indicating that the ancient site is of Brahmapuri is not situated in any part of CTS No. 2357 of Kolhapur.
(h) that this Hon'ble Court may be pleased to issue a Writ of Certiorari and/or any other Writ, Order or Direction in the nature of Certiorari and be pleased to quash and set aside the notice dated 31.07.2021 issued by Respondent No. 11 i.e. Jr. Conservator, Archaeological Survey of India, being Exhibit-M to this Petition.
(i) that this Hon'ble Court may be pleased to issue a Writ of Certiorari and/or any other Writ, Order or Direction in the nature of Certiorari and be pleased to quash and set aside the notice dated 07.09.2021 issued by Respondent No. 12 i.e. Kolhapur Municipal Corporation, being Exhibit-O to this Petition.”
2. The Petitioner is challenging the legality and validity of the Survey Report and Survey Map, both dated 28.05.2018, prepared by the District Superintendent of Land Records, Kolhapur, and the City Survey Officer, Kolhapur respectively, through which the location of the ancient site of Brahmapuri (for short “the said site”) is shown as situated in CTS No. 2357 and for a declaration that the said site is located in CTS No. 2355, Kolhapur City.
2.1. CTS No. 2357 admeasures 15369.4 sq. mtrs. in total. On 15.12.2007, the Petitioner purchased an area admeasuring 2498.155 sq. mtrs. from the legal heirs of the original owner out of the total area of CTS No. 2357, by three registered conveyances. On the same date, i.e. 15.12.2007, the brother of the Petitioner, Mohan Digambar Jadhav purchased an identical area admeasuring 2498.131 sq. mtrs. from the legal heirs of the owner by three separate registered conveyances. In November 2018, pursuant to a Consent Decree dated 27.10.2016 in Civil Suit No. 172 of 2010, with the consent of the co-owners, CTS No. 2357 was divided into two parts, viz. CTS No. 2357/A (admeasuring 11369.4 sq. mtrs.) and CTS No. 2357/B (admeasuring 4000 sq. mtrs.) and the Petitioner and his brother were declared as owners of 400
SupremeToday
Surveying authorities can conduct surveys of private lands upon request, as long as no specific prohibition exists in the governing legislation.
Actions would be taken to verify that the existing structure is in accordance with the existing Development Permission and only thereafter, Building Usage Permission would be granted.
A court order directing a survey of land is complied with when the relevant authority deals with the application for survey in accordance with the law and orders passed.
A perusal of Circulars relied on by learned Government Pleader for Revenue goes to show that subject to compliance of conditions in Circulars, survey can be undertaken.
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