VEENA Vs. THE CHAIRMAN

JUDGEMENT

(1.) The petitioner has prayed for to quash and set aside Order No. 657 dated 08052009 passed by the Chairman, Nagpur Improvement Trust, Nagpur (NIT) and order dated 14092009 passed by the NITrespondent no. 1 under Sections 3 and 4 of the Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 as wholly without jurisdiction and contrary to the principles of natural justice and for issuance of the direction to respondent no. 1 to call upon respondent no. 3 restraining the enforcement of the said order.

(2.) Facts stated are that the petitioner came across the advertisement issued by respondent no. 2 in the year 1990 for sale of the plots at Khasra no. 83/1, PH No 44 Ward No. 15 situated at Mauza Somalwada, Nagpur. The petitioner purchased Plot No. 2, area 464.25 Sq. Meters (5000 Sq. Feet) out of total 104 plots layout for the consideration of Rs. 7500/ vide registered Sale Deed dated 26091990 from respondent no. 2. The Government of Maharashtra enacted the Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 (briefly called as the "Gunthewari Act") which came into force from 13082001. Respondent No. 1 NIT being Planning Authority under Section 2 (1) (c), (iv) is required to consider the application of the plot holder for regularisation of the Gunthewari development made within the period of six months or within the extended period if any from the date of the coming into force of the Gunthewari Act. The Planning Authority is required to scrutinise the case for fulfilment of the stipulated requirements under S. 4 (2). Consequences of the regularisation are provided under Section 5 of the Act. Planning Authority is required to exercise the control over the Gunthewari developments. If it is found that the Gunthewari development has not been regularised under Section 4 (1 ) of the Act issuance of the notice is required to the plot holder after giving an opportunity to apply for regularisation of the unauthorised development within one month. It is provided that if the plot holder fails to apply for regularisation under Section 4 (1) and (2) of the Act, Planning Authority shall demolish the unauthorised construction over the plot. According to the petitioner, the applications beyond the stipulated date i. e. 1402 2002 were liable to be rejected as time barred. Petitioner had visited Nagpur on 22102012 and was astonished to see the illegal activity on the plot purchased by her. The petitioner had filed the complaint at Sonegaon Police station and instructed her advocate to issue legal notice. Accordingly, on 25102012 notice was issued to the respondents. The Petitioner refers to suit no. 1576 of 1985 brought by Shri Madhukar Shamrao Menghare (Vendor of respondent no 2 Society in Sale Deed dated 14061985) for partition and separate possession against his father Shamrao which was decreed by learned Civil Judge S.D. Nagpur. The decree was sought to be executed in the execution proceeding being R.D. No. 87 of 1992 by Madhukar Shamrao. The decree was partly executed. First Appeal No 52 of 1992 was preferred by Shri Shamrao Menghare which was dismissed. Second Appeal No. 166 of 1999 filed by Shri Shamrao was also dismissed. Thus, the judgement and decree dated 26111991 passed by the Civil Judge, Senior Division, Nagpur became final. According to the petitioner, she had under the acknowledgement and advise note dated 18072002 deposited the sum of Rs.1000/ with respondent no.1 NIT for seeking regularisation. It is contended that 60 plot holders out of 104 plot owners moved learned CJSD, Nagpur by filing Civil Suit No. 1539 of 2002 praying for declaration and injunction against Madhukar Shamrao that various sale deeds executed by the Society (respondent no 2) during the period 198990 in their favour would remain unaffected by the decree dated 26111991 as there was no prayer to set aside the sale deeds executed by the Society in their favour. Special Civil Suit No. 1000 of 2003 is still pending in the court of CJSD at Nagpur. Respondent no 3 herein was impleaded as defendant no 14 in that suit pursuant to the amendment sought. Madhukar decree holder in Civil Suit No 1576 of 1985 brought Writ Petition No. 5074 of 2006 in this Court. By order dated 12102006 it was allowed to be withdrawn with liberty for Madhukar to make an application for regularisation of the lay out to be considered by the Planning Authority. According to the petitioner, she came to know on inquiry that plot no. 89 of one Mr. Deo was regularised. It is contended that the remedy by way of civil suit is not available to the petitioner as it is barred in view of Sections 16 and 18 of the Gunthewari Act and, therefore, this Petition is filed.

(3.) Contest is between the petitioner on one hand and respondents no.1 and 3 on the other. Absence of legal right of respondent no. 2 Society in connection with the disputed plot of land appeared clear on the basis of the legal proceedings decided.