Bombay High Court
Smt. Lata Ramkrishna Falke vs Nagpur Improvement Trust, Thr. Its ... on 18 November, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 151 OF 2019
Smt. Lata Ramkrishna Falke,
aged 45 yrs, Occ. Housewife,
r/o. Plot No. 83, Shivashakti Layout,
SoneyGaon, Nagpur ...PETITIONER
...V E R S U S...
1 Nagpur Improvement Trust,
through its Chairman, Station Road,
Sadar, Nagpur
2 The Building Engineer (West)
Nagpur Improvement Trust, Nagpur
3 The Divisional Officer (West)
Nagpur Improvement Trust, Nagpur
4 The City Survey Officer No. 3,
Administrative Building, Civil Lines,
Nagpur
5 Mahadev Venkati Malpettiwar,
aged Major, Occ. Service,
r/o. Plot No. 597, Ashirwad Nagar,
Post. Ayodhya Nagar, Nagpur ...RESPONDENTS
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Shri A.C. Dharmadhikari, Advocate for petitioner.
Shri R.O. Chhabra, Advocate for respondent No. 1.
Shri S.M. Ukey, Addl. GP for respondent No.4.
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CORAM: SUNIL B. SHUKRE, &
ROHIT B. DEO, JJ.
DATE:18.11.2019.
Oral Judgment :(Per : Sunil B. Shukre, J.)
Heard.
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2 Rule. Rule is made returnable forthwith. Heard
finally with consent of the parties.
3 After purchase of the plot No. 83 by the petitioner
Babanrao Namdeorao Zade on 3.9.1994, the petitioner applied for regularization of the plot and the house constructed thereon by making a suitable application to the respondent No.1. After due verification of the documents and ensuring that all the parameters are met by the petitioner, respondent No. 1 regularized the plot and also the construction existing thereon. This was done by the order passed on 15.3.2008. About nine years later, there was a dispute raised as regards the ownership over the said plot by respondent No. 5. An objection was therefore filed by respondent No. 5 with respondent No. 1. Ordinarily, an objection filed so belatedly would not be taken any cognizance of by Nagpur Improvement Trust, but the present case was an exception. The belated objection was promptly looked into and inspite of the fact that the objection was not really relevant under the provisions of Maharashtra Gunthewari Act, the respondent No. 1 through respondent No. 2 set the machinery in action and ultimately by order passed an 5.2.2017 revoked the regularization granted on 15.3.2008. The reason given in the impugned order is that a ::: Uploaded on - 09/12/2019 ::: Downloaded on - 24/04/2020 06:37:51 ::: 3 wp151o f2019 dispute regarding ownership in respect of plot No. 83 has been raised and till the time the dispute is resolved by competent authority, the revocation must take place.
4 We must say it here that in Gunthewari Act, there is no provision of law which permits the authority like respondent No. 2 - Building Engineer to revoke the regularization once granted, on the ground of some dispute raised over the ownership of the regularized plot subsequently. In fact, the very issue of ownership itself is not relevant for regularization of any Gunthewari development. This is the view taken by this Court way back in the year 2006 which has attained finality now. This Court in the case of Sarojini w/o. Motisao Sarodaya and Ors .vs. State of Maharashtra and Ors reported in 2006(5) Mh.L.J.573 has held that a plot holder may not be owner of the plot but if he is in lawful possession of the plot, he would be eligible to be considered for regularization of Gunthewari development under clause (a) of sub-section (2) of section 4 of the Gunthewari Act. It been further observed that it is not the the purport of the provisions of Section 4 of the Gunthewari Act that owner of the plot alone is eligible for regularization of Gunthewari development and that even the person having lawful possession of the plot is ::: Uploaded on - 09/12/2019 ::: Downloaded on - 24/04/2020 06:37:51 ::: 4 wp151o f2019 equally eligible for regularization of Gunthewari development, subject to fulfillment of other conditions. So, it would be clear that just because there is an issue as regards ownership of the plot, no revocation of the regularization already granted and acted upon could have been done, through it is done in the present case. It has never been the case of the respondent Nos. 1 and 2 that petitioner was not in lawful possession of the said plot. So, we find that the action taken vide impugned order in the present case, is not only illegal but also an abuse of the process of law for which purpose, some cost could have to be imposed upon the authority passing the order by allowing this petition. 5 The petition is allowed. The impugned order is hereby quashed and set aside. The respondent No. 2 is directed to pay the cost of Rs. 5,000/- to be deposited with the office of the Government Pleader, High Court, Nagpur within a period of two weeks from the date of the order for the purpose of development of library. The cost so imposed shall be personally borne by the officer who has passed the impugned order.
JUDGE JUDGE
Belkhede
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