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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 176 OF 2014
1] Chairman, Nagpur Improvement Trust,
Sadar, Nagpur.
2] Divisional Officer,
Nagpur Improvement Trust,
South Zone, Hanuman Nagar,
Nagpur.
3]
Assistant Engineer (Enforcement),
South East Division, Nagpur Improvement
Turst, Hanuman Nagar, Nagpur.... APPELLANTS
...VERSUS...
Ratiram s/o Sitaram Patil,
aged about 61 years, Occ. Service,
R/o. House No. 6054-B, in Field
No. 37/1, Plot No.2, Ward No. 29,
Near Pragati Nagar, Balaji X,
Nagpur, Tah. And Distt. Nagpur...... RESPONDENT
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Shri R.O.Chhabra, counsel for appellants
Shri P.K.Mishra, counsel for Respondent
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CORAM: R. K. DESHPANDE, J.
th DATE : 28 JULY, 2016 .
ORAL JUDGMENT
1] Heard the learned counsels appearing for the
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parties.
On 29.03.2016, this Court passed an order as under, admitting the matter and framing the substantial question of law.
"Heard learned counsel for both the parties.
Admit, on the following Substantial question of Law :-
Whether the Courts below committed an error in ignoring delegation of authority to the person giving the notice under Section 286(2) of the Nagpur Municipal Corporation Act read with Section 52 of the Nagpur Improvement Trust Act?
Learned Adv. Mr. Mishra waives service.
Call R & P."
2] The challenge in the Regular Civil Suit No. 571 of 2002 was to the notice dated 15.12.2001 issued under Section 286 (2) of the City of Nagpur Corporation Act read with Section 52 of the Nagpur Improvement Trust Act, for demolition of unauthorized construction carried out without obtaining sanction. The specific stand taken in the plaint was that the scheme of sanction of 1900 layouts by the Nagpur Improvement Trust was under progress and the plaintiff was ready and willing to pay the amount, which will be levied by the Nagpur Improvement Trust for sanction of the building plan of the plaintiff.
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3] Shri Chhabra, the learned counsel appearing for
the Nagpur Improvement Trust has invited my attention to the Memo dated 06.09.2008, issued by the Nagpur Improvement Trust, informing the respondent-plaintiff that the building in question is affected by the DP reservation/Owing to the reason of encroachment and no ownership document are produced. The application for regularization of Plot No. 2 and the construction thereon has been rejected.
4] The learned counsel for the respondent/original plaintiff submits that the said Memo has been challenged by the respondent by filing separate suit. In view of this, the suit in question i.e. Regular Civil Suit No. 571 of 2002 filed by the respondent itself has become infructuous and is required to be dismissed as such, leaving it open for the respondent to pursue the remedy which he has already adopted to challenge the Memo dated 06.09.2008.
5] In view of above, the second appeal is disposed of with the observation that none of the findings recorded by the Courts below shall come in the way of the parties. The ::: Uploaded on - 01/08/2016 ::: Downloaded on - 02/08/2016 00:10:51 ::: 4 sa176.14.odt parties shall be at liberty to seek appropriate interim order in the said suit, if so advised. Whether the construction made is legal, with sanction or it is required to be regularised can be gone into.
JUDGE
Rvjalit
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C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
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