AO17-21.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

APPEAL FROM ORDER NO. 17 OF 2021

WITH

CIVIL APPLICATION NO. 5707 OF 2021

IN

APPEAL FROM ORDER NO. 17 OF 2021.

Balkrishna Padmakar Joshi,

Age 72 Years, Occu: Pujari

R/o Patna Devi Temple, Patna

Tq. Chalasgaon, Dist. Jalgaon

...

Appellant

VERSUS

1.

Superintending Archeologist,

On behalf of Director General,

Archaeological Survey of India,

Aurangabad Circle, Bibi Ka Makbara,

Aurangabad.

2.

The Union of India,

Through its Secretary,

Archaeological Survey of India,

Janapath, New Delhi

...

Respondents

Mr S. P. Brahme and Mr. M.S. Kulkarni, Advocate for the appellant

Mr. S. G. Talhar, A.S.G. for the respondents

CORAM

: SHRIKANT D. KULKARNI, J.

DATE

:

26TH JULY, 2021

ORAL JUDGMENT

1.

With the consent of both sides, this appeal is taken up

for final disposal at admission stage.

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Factual matrix:

2.

Being dissatisfied by the judgment and decree passed in

Regular Civil Appeal No. 143 of 2015 by the learned District

Judge-5, Jalgaon, dated 25.02.2021, thereby remanded Regular

Civil Suit No.377 of 2005 to the trial Court for fresh decision, the

appellant/original plaintiff has preferred this appeal.

3.

The subject matter is a residential block consisting of

two rooms with toilet and bathroom, situated at a distance of 30

feet away from the ancient monument of Chandikadevi Temple

at Patnadevi, Tq. Chalisgaon, District Jalgaon. According to the

appellant, the suit house is in existence since 19th century.

Forefathers of the appellant has received the suit house by way

of Sanad, issued by the Collector, Khandesh in the year 1861.

The appellant is performing Archana and services to the deity

and looking after the management of the suit premises and

getting yearly allowances for the same. Respondent No.1 had

issued notification under section 3 of the Ancient Monument

and Archaeological Sites and Remains Act, 1958 (hereinafter

referred to as 'the Act' for the sake of convenience).

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4.

According to the respondents, the suit property is

situated within the protected zone of the monument. The

respondents issued notice to the appellant dated 27.09.2005

and called upon the appellant to remove the suit house since it

is within the protected and/or prohibited area. The appellant

challenged the notice by filing suit with two fold reliefs

declaration and injunction.

5.

The respondents had contested the suit. Both the

parties have produced oral as well as documentary piece of

evidence in support of their stand. The learned trial judge was

pleased to decree the suit and declared that the notice issued by

the respondents is invalid.

6.

Being aggrieved by the judgment and decree passed by

the trial Court, 3rd Jt. Civil Judge, Senior Division, Jalgaon in

Regular Civil Suit No. 377/2005, the respondents have preferred

an appeal bearing Regular Civil Appeal No.143/2015 before the

District Court, Jalgaon. After considering the arguments

advanced on behalf of both sides, the learned District Judge was

pleased to allow the appeal partly and remanded the suit to the

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trial court for decision afresh with direction to frame one

additional issue regarding validity of the notice.

7.

In the above background, the appellant/original plaintiff

is before this Court.

8.

Heard Mr. S.P. Brahme, the learned counsel for the

appellant and Mr. A. G. Talhar, learned Assistant Solicitor

General for the respondents. Perused the judgment and decree

passed in Regular Civil Appeal No.143/2015 by the learned

District Judge-5, Jalgaon, as well as judgment and decree

passed in Regular Civil Suit No. 377/2005 by the learned 3rd

Jt. Civil Judge, Senior Division, Jalgaon.

Submissions of learned Advocate for the Appellant:-

9.

Mr. S. P. Brahme, the learned Advocate for the appellant

submitted th