Sarojini W/O Motisao Sarodaya And ... vs State Of Maharashtra And Ors.
2006 Latest Caselaw 498 Bom

JUDGMENT

D.D. Sinha, J.

1. Rule returnable forthwith. Heard finally by consent of Shri Kulkarni, learned Counsel for the petitioners in Writ Petition No. 197/2006, Shri Mohta, learned Counsel for the petitioners in Writ Petition No. 783/2006, Shri Mujumdar, learned Assistant Government Pleader for the respondents State of Maharashtra and Competent Authority under the Urban Land (Ceiling and Regulation) Act, Shri Mishra, learned Counsel for the respondent Nagpur Improvement Trust, Shri Choube, learned Counsel for the respondent Nagpur Municipal Corporation, Shri Jaiswal, learned Counsel for the respondent Nos. 5 to 7, and Shri Manohar, learned Counsel for the respondent No. 8.

2. Both these writ petitions are directed against order dated 20-10-2005 passed by the respondent No. 2 Chairman, Nagpur Improvement Trust and since facts, circumstances and law involved in both these writ petitions are similar, both these writ petitions are heard together and disposed of by this common judgment.

3. Shri Kulkarni and Shri Mohta, learned Counsel for the respective petitioners, contended that the petitioners in Writ Petition No. 197/2006 are members of Nelco Co-operative Housing Society, which is a petitioner in Writ Petition No. 783/2006 registered under the Maharashtra Co-operative Societies Act vide Registration No. NGP/HSG/724/70. The issue involved in the present petitions pertains to land bearing Survey Nos. 82, 85, 86, 95 and 97 of Mouza Khamla, Nagpur. The said property originally belonged to Bhosala family and as per compromise decree passed in Civil Suit No. 121/1974, the land in question came to the share of Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale, each having equal share. After compromise decree was passed, Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale became joint owners of the said property.

4. It was contended by the learned Counsel for the petitioners that Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale entered into an agreement of sale dated 15-4-1983 of the said land admeasuring 10.38 acres with Nelco Cooperative Housing Society at the rate of rupees eighty thousand per acre. The Nelco Co-operative Housing Society paid total consideration of rupees eight lacs in full and final settlement of claim under the agreement to Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale during the period from 15-4-1983 to 25-4-1984. After receipt of full and final payment under the agreement, the owners of the land delivered possession of the said land to the Nelco Cooperative Housing Society on 18-11-1983 by executing regular and valid deed of possession. Thereafter Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale executed a General Power of Attorney dated 28-9-1995 in favour of President of the Nelco Co-operative Housing Society, which was duly registered.

5. It was contended by the learned Counsel for the petitioners that the Nelco Co-operative Housing Society prepared a layout of the said land and its members purchased their individual plots in the year 1987-88. It was submitted that apart from other members, the petitioner Nos. 1 to 10 in Writ Petition No. 197/2006 paid the entire consideration of their respective plots to the Nelco Cooperative Housing Society and, therefore, the Society had executed registered Allotment Deeds in favour of each member. The said Allotment Deeds were executed on different dates. The details thereof are given in the chart annexed to Writ Petition No. 197/2006, It was, therefore, contended that every member of the Nelco Co-operative Housing Society including the petitioners in Writ Petition No. 197/2006 have become rightful owners of their respective plots by virtue of registered Allotment Deeds executed by the Nelco Co-operative Housing Society in their favour.

6. The learned Counsel for the petitioners further contended that the land in question, which was under the urban agglomeration, was subject-matter of urban land ceiling proceedings and the Competent Authority (ULC), Nagpur after taking into consideration the claim of the Nelco Co-operative Housing Society in view of the agreement executed by the owners of the land, namely, Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale with the Nelco Co-operative Housing Society was pleased to exclude the land in question while determining the surplus land vide order dated 11-7-2002. It was submitted by the learned Counsel for the petitioners that as per the said order, land admeasuring 42024.30 square metres was deducted towards land development scheme of the Nelco Co-operative Housing Society, which was sanctioned as per order dated 25-6-1996 by the Additional Collector/Competent Authority (ULC), Nagpur, It was submitted that as per order dated 25-6-1996, area admeasuring 42024.30 square metres was exempted under Section 20(1)(a) of the Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of layout of the Nelco Co-operative Housing Society.

7. The learned Counsel for the petitioners also contended that the Nelco Co-operative Housing Society was put in possession of the land in question on 18-11-1983 by the owners, namely, Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale, In the year 1995, the landowners had executed a registered Power of Attorney in favour of the President, Nelco Co-operative Housing Society. The Competent Authority under the Urban Land Ceiling Act had accepted the claim of the Nelco Co-operative Housing Society and, therefore, sanctioned a scheme under Section 20 of the Urban Land (Ceiling and Regulation) Act vide order dated 25-6-1996 and the said fact has been confirmed as per order dated 11-7-2002. It was further submitted that the fact that the Nelco Co-operative Housing Society was put in possession of the land is established from the entries of 7/12 extracts dated 13-2-1985. It was vehemently argued by the learned Counsel for the petitioners that the Nelco Co-operative Housing Society had taken necessary steps for conversion of land for non-agricultural purpose and the Competent Authority, namely, Additional Collector vide order dated 2-7-1996 was pleased to grant permission for conversion of land for non-agricultural purpose.

8. The learned Counsel for the petitioners also contended that the State of Maharashtra evolved a legislation, namely, Maharashtra Gunthewari Developments (Regularisation, Upgradation and Control) Act, 2001, (for short 'Gunthewari Act') which provides that all Gunthewari developments existed as on 1-1-2001, on an application being made in that behalf by the plot-holders to the Planning Authority as provided under Section 4 of the Gunthewari Act would be eligible for regularisation. It was submitted that the Nagpur Improvement Trust is defined as a Planning Authority as per Section 2(c) of the Gunthewari Act. As per Section 4 of the Gunthewari Act, the concerned plot holders were required to apply for regularisation of Gunthewari development within a period of six months from the date of coming into force of the said Act. It was submitted that till 2001, layout prepared by the Nelco Co-operative Housing Society was not sanctioned by the Nagpur Improvement Trust and, therefore, the said aspect fell within the ambit of Gunthewari Act. It was contended by the learned Counsel for the petitioners that the members of the Nelco Co-operative Housing Society were justified in submitting applications under Section 4 of the Gunthewari Act to the Nagpur Improvement Trust being the Planning Authority along with all necessary documentary proofs required under Section 4 of the said Act to show the legal possession. It was contended that the applications of the members of the Nelco Co-operative Housing Society were considered by the Nagpur Improvement Trust and after due consideration, the Nagpur Improvement Trust accepted the claims of the petitioners and, therefore, plots in the layout of the Nelco Co-operative Housing Society were regularised and as per the norms framed by the Nagpur Improvement Trust, individual demand notices were also issued to the members of the Nelco Co-operative Housing Society for payment of development charges. The members of the Nelco Co-operative Housing Society paid the development charges to the Nagpur Improvement Trust.

9. The learned Counsel for the petitioners submitted that Regular Civil Suit No. 52/2004 was filed by the respondent Nos. 5 and 6 through their Power of Attorney Holder, namely, respondent No. 7 against the Nagpur Improvement Trust and Nagpur Municipal Corporation. The suit was for declaration and permanent and mandatory injunction. The prayers made in the suit read thus:

(1) grant and make decision against the defendant No. 1, its agents, representatives, successors, any person or persons that the defendants have no right to create third party interest in the suit property and regularise the plots of the alleged members of the Nelco Co-operative Society or any person or persons claiming over the same;

(2) grant mandatory injunction directing the defendant No. 1 to delete name of Nelco Society or any other person claiming over the suit land;

(3) grant permanent injunction restraining the defendants to regularise the plots of the alleged persons having no title and from creating third party interest in the suit property and from regularizing the plots of the alleged members of the Nelco Society or any person or persons claiming over the same.

(4) saddle costs of the suit on the defendants.

10. It was further contended by the learned Counsel for the petitioners that the suit was filed in the most calculated fashion only against the Nagpur Improvement Trust without joining either Nelco Co-operative Housing Society or its members as party defendants despite the fact that substantive relief claimed in the suit was directly affecting rights of the Nelco Co-operative Housing Society and its members. It was submitted that in the said suit, the Nagpur-Improvement Trust filed reply dated 4-8-2004 to the application of the plaintiffs under Order XXXIX, Rule 2-A of the Code of Civil Procedure wherein Nagpur Improvement Trust has clearly stated that the Nagpur Improvement Trust had floated a single window scheme for regularisation of unauthorized layouts, which have been formed prior to 1-1-2001. The Nelco Co-operative Housing Society had applied through its President for regularisation of layout on the suit land by depositing Rs. 1,65,000/- and submitted relevant documents of ownership, which included registered Deeds of Allotment of plots in the name of the individual plot-holders registered in the year 1988. It was also stated by the Nagpur Improvement Trust that the plaintiffs have never objected to regularisation in the names of individual plot-holders, who have applied for regularisation of their plots till demands are issued by the Nagpur Improvement Trust. It is further stated in the said reply filed by the Nagpur Improvement Trust that the Nagpur Improvement Trust has considered the cases of individual plot-holders and after scrutiny, Nagpur Improvement Trust found them as per provisions of the Gunthewari Act and, therefore, the Nagpur Improvement Trust has sanctioned layout on 1-11-2003 and issued demand notices to individual plot-holders in the month of December 2003, i.e. prior to filing of the suit. The learned Counsel for the petitioners contended that the Nagpur Improvement Trust in the said reply also stated that after passing of the order by the High Court, the Nagpur Improvement Trust has not taken any action of regularisation, issuance of demand notices, issuance of no objection certificates or regularisation letters even though individual owners have deposited the amount as per demand notices issued in December 2003. The learned Counsel for the petitioners contended that the Nelco Co-operative Housing Society and its members were not only eligible under the Gunthewari Act for regularisation of Gunthewari development, but also the stand taken by the Nagpur Improvement Trust before the Civil Court clearly shows that the said claims of the petitioners were accepted by the Nagpur Improvement Trust since they were as per the provisions of the Gunthewari Act and were fulfilling all the requirements under the Gunthewari Act and, therefore, Nagpur Improvement Trust has sanctioned the layout on 1-11-2003. It was contended that the Nagpur Improvement Trust is bound by the stand taken by it before the Civil Court and it is impermissible in law for the Nagpur Improvement Trust to deviate from the said stand, which was taken on affidavit. It was submitted that all the abovereferred facts and circumstances would demonstrate that possession of the Nelco Co-operative Housing Society and its members was a legal possession in respect of land in question and since proposals for regularisation moved by the petitioners were fulfilling the requirements under the Gunthewari Act, the Nagpur Improvement Trust not only accepted the same, but also sanctioned the layout on 1-11-2003.

11. The learned Counsel for the petitioners further contended that perusal of the suit filed by the respondent Nos. 5 and 6 clearly demonstrates that despite the fact that father of the respondent Nos. 5 and 6 had executed agreement and received entire valuable consideration of rupees eight lacs in the year 1983 itself, the respondent Nos. 5 and 6 with a mala fide intention had set up a false claim. It was further contended that though the suit was filed against the Nagpur Improvement Trust and Nagpur Municipal Corporation, the relief, which was sought in the suit, was in fact against the Nelco Co-operative Housing Society without making the said Society as a defendant to the suit. It was contended that whole conduct of the respondent Nos. 5 and 6 in filing suit is not only mischievous, but same is with the oblique motive to deprive the petitioner Society and its members of their legitimate right and to defeat the action of the Nagpur Improvement Trust in sanctioning the layout with effect from 1-11-2003. The Nelco Co-operative Housing Society filed an application in the said suit under Order 1, Rule 10 of Code of Civil Procedure, which was rejected by the trial Court and, therefore, the Nelco Co-operative Housing Society and its members filed Writ Petition Nos. 158/2005, 92/2005 and 85/2005 before this Court. This Court granted interim relief and prohibited the parties from creating third party interest during pendency of the petitions. It was submitted that the respondent Nos. 5 and 6 knowing full well the frivolous nature of the suit, sold the land in question to the respondent No 8 during the pendency of the suit itself and informed this Court that the cause of action in the petitions did not survive. In view of these facts, the learned single Judge vide order dated 2-5-2005 disposed of Writ Petition Nos. 158/2005, 92/2005 and 95/2005 by passing the following order:

Heard Shri Mehta, Shri Kulkarni and Shri Parchure for the petitioners in the respective writ petitions. Shri Chhabra, Advocate for the respondent No. 3 NIT and Shri Deshpande, Advocate for respondent No. 4 NMC. Shri Naik, Advocate holding for Shri Deo, Advocate for respondents No. 1 and 2 states that on 28-4-2005 respondents No. I and 2, who were plaintiffs before the trial Court have withdrawn their suit, i.e. R. C. S. No. 52 of 2004. He, therefore, states that the grievance made by the petitioners in the present writ petitions is rendered infructuous. The advocates for the respective petitioners state that the application for permission to withdraw, as filed, is not a plain and simple application, but it is mentioned therein that the plaintiff has sold the suit property and no cause of action, therefore, survives in his favour. The advocates for the petitioners state that thus their legal rights are being defeated. It is made clear that the petitioners were not the parties before the trial Court and as such, none of their rights are adjudicated upon in the said controversy. The grievance expressed by these petitioners before this Court are also not adjudicated upon and the same are, therefore, open. The petitioners are at liberty to take appropriate steps in the matter. Writ petitions are accordingly disposed of as infructuous.

12. The learned Counsel for the petitioners further contended that after withdrawal of Regular Civil Suit No. 52/2004, the petitioners made a request to the Nagpur Improvement Trust to issue release letters. The Nagpur Improvement Trust accepted the request of the petitioners and prepared release letters in favour of each individual member of Nelco Co-operative Housing Society and same were also forwarded to the Despatch Department for necessary dispatch. However, at that stage, respondent No. 8 had submitted objection dated 18-5-2005 before the Nagpur Improvement Trust against issuance of release letters in respect of Khasra Nos. 82, 84, 85, 86, 95 and 97 of Mouza Khamla, Nagpur (land in question). The petitioners objected to the action of Nagpur Improvement Trust in entertaining the objection dated 18-5-2005 raised by the respondent No. 8. It was contended that though Nagpur Improvement Trust has forwarded release letters to the Despatch Department for necessary despatch to the individual members of the Nelco Co-operative Housing Society, however, because of frivolous objections raised by the respondents No. 8, kept on hold despatch of the release letters to the individual members of the Nelco Co-operative Housing Society. The petitioners approached this Court on earlier occasion by filing Writ Petition No. 4045/2005 seeking direction to the Nagpur Improvement Trust to decide the objection filed by the respondent No. 8 according to law and procedure and after following principles of natural justice within a stipulated period since Chairman, Nagpur Improvement Trust was delaying taking of decision on the said frivolous objections raised by the respondent No. 8. It was contended that this Court vide order dated 25-8-2005 disposed of Writ Petition No. 4045/2005 with direction to Chairman, Nagpur Improvement Trust to grant fresh hearing to the parties to the proceedings and decide the objection dated 18-5-2005 on its own merits according to law and procedure applicable in this regard within a period of eight weeks. Pursuant to the said order, the Chairman, Nagpur Improvement Trust passed the impugned order dated 20-10-2005. Being aggrieved by the same, the Nelco Co-operative Housing Society as well as its members have filed the present writ petitions.

13. The learned Counsel for the petitioners submitted that the impugned order dated 20-10-2005 is wholly erroneous and the Chairman, Nagpur Improvement Trust passed the impugned order by completely ignoring the basic facts as well as stand of the Nagpur Improvement Trust reflected in the reply filed by it in the civil suit and, therefore, the impugned order is completely misconceived. It was further contended that direction given in the impugned order to the petitioners to obtain orders from the competent Civil Court is also totally inconsistent with the provisions of Section 4 of the Gunthewari Act and, therefore, the said direction is also misconceived. It was contended that entire approach of the Chairman, Nagpur Improvement Trust reflected in the impugned order is not only illegal and arbitrary, but same is also totally mala fide and devoid of substance.

14. The learned Counsel for the petitioners submitted that the Nagpur Improvement Trust in the reply filed in Regular Civil Suit No. 52/2004 had justified the action of sanctioning the layout of Nelco Co-operative Housing Society. After withdrawal of the said suit, it was not open for the Nagpur Improvement Trust to entertain false and baseless objections/ claim raised by the respondent No. 8 and withheld issuance of release letters. It was further submitted that the alleged sale deed executed by the respondent Nos. 5 to 7 in favour of respondent No. 8 has no legal sanctity since they had not obtained 'no objection certificate' from the 'Nagpur Improvement Trust' for execution of alleged Sale Deed, which is a mandatory requirement as per Notification dated 7-4-1988 issued by the State of Maharashtra, Department of Urban Development. It was, therefore, contended that objection raised by the respondent No. 8 is not only misconceived, but also unsustainable in law and, therefore, impugned order dated 20-10-2005 is liable to be quashed and set aside.

15. The learned Counsel for the petitioners further contended that till this date, at no point of time, neither original owners of the land in question, namely, Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale nor respondent Nos. 5 to 7 had challenged agreement dated 15-4-1983 or possession deed dated 18-11-1983 executed in favour of the Nelco Co-operative Housing Society by the original owners. Similarly, nobody has challenged the order passed by the Nagpur Improvement Trust in favour of the Nelco Co-operative Housing Society and order dated 25-6-1996 passed by the Competent Authority sanctioning the scheme under Section 20 of the Urban Land (Ceiling and Regulation) Act in favour of the Nelco Co-operative Housing Society. The learned Counsel for the petitioners also contended that Civil Suit bearing No. 52/2004 was withdrawn by the respondent Nos. 5 and 6 on the sole ground that during pendency of the suit, they had sold the land to respondent No. 8 Society. It was submitted that the respondent No. 8 does not have any independent title, right or interest in respect of the suit land and at the most, it could have claimed title, right or interest in the property in question through respondent Nos. 5 and 6. However, once respondent Nos. 5 and 6 had withdrawn Civil Suit No. 52/2004, it was not open for the Nagpur Improvement Trust to entertain the objection raised by the respondent No. 8.

16. The learned Counsel for the petitioners also submitted that the impugned order dated 20-10-2005 passed by the respondent No. 2 withholding release letters in favour of individual members of the Nelco Co-operative Housing Society till the parties get their title proved through Court of law is completely misconceived. Under Section 4 of the Gunthewari Act, documentary proof of ownership or lawful possession of the plot is one of the criteria to consider entitlement for regularisation, if other requirements under the Act are satisfied. Even otherwise, having sanctioned the layout by the Nagpur Improvement Trust with effect from 1-11-2003, it is not open for the respondent Nagpur Improvement Trust to review the said order in the absence of any power of review and, therefore, the impugned order on this count also cannot be sustained in law.

17. It was submitted by the learned Counsel for the petitioners that agreement of sale between Nelco Co-operative Housing Society and original land-owners, possession deed, order passed by the ULC Authorities sanctioning the scheme under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 and order permitting conversion of land to the non-agricultural purpose were the factors evaluated by the Nagpur Improvement Trust and it is only thereafter the claim of the petitioners for regularisation was accepted by the Nagpur Improvement Trust and, therefore, it is not open for the Nagpur Improvement Trust to review its decision in the absence of any power of review. Consequently, the impugned order cannot be sustained in law on this count.

18. The learned Counsel for the petitioners further contended that the Chairman, Nagpur Improvement Trust while passing the impugned order gave undue weight to the Sale Deed executed by the respondent Nos. 5 to 7 in favour of respondent No. 8. The Chairman, Nagpur Improvement Trust ought to have seen that the respondent Nos. 5 to 7 had never challenged the agreement of sale dated 15-4-1983 and possession deed dated 18-11-1983. They had also not challenged the order dated 25-6-1996 and 11-7-2002 passed by the ULC Authorities. They never challenged registered power of attorney dated 28-9-1995 executed by the original owners of the land in favour of Nelco Co-operative Housing Society either before the Civil Court or before any other competent Authority and, therefore, the respondent No. 8 cannot question the genuineness as well as validity of these agreements and various orders passed by the Urban Ceiling Authorities by merely filing objection dated 18-5-2005 before the Nagpur Improvement Trust and that too, after about eighteen years from the date of execution of these documents without challenging the same before the Civil Court. The respondent Nos. 5 and 6 for the first time filed a frivolous suit bearing No. 52/2004, which was also withdrawn by them on the ground that they had sold the land in question in favour of respondent No. 8. It was submitted by the learned Counsel for the petitioners that the alleged Sale Deed admittedly was executed during pendency of the suit and, therefore, it was incumbent upon respondent No. 8 to continue the suit since he could claim interest, title and right of ownership in respect of land in question only through respondent Nos. 5 to 7. The learned Counsel for the petitioners, therefore, contended that Chairman, Nagpur Improvement Trust in view of these facts ought to have rejected the objection dated 18-5-2005 raised by the respondent No. 8.

19. The learned Counsel for the petitioners further contended that in view of the facts of the case, the Power of Attorney dated 28-9-1995 executed by the original land-owners, namely, Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale in favour of the President of Nelco Co-operative Housing Society did not come to an end on account of death of one of the owners in view of provisions of Section 202 of the Indian Contract Act, 1872.

20. The learned Counsel for the petitioners lastly contended that all the petitioners for more than eighteen years are fighting for their legal rights and have invested their earnings in the land in question. The Nagpur Improvement Trust after taking into consideration the eligibility of the petitioner Society and its members as well as requirements under the Gunthewari Act found the petitioners eligible and, therefore, sanctioned the layout with effect from 1-11-2003 and also issued demand notices for payment of development charges, which were paid by the members of the Society and also forwarded the release letters to the Despatch Department of the Nagpur Improvement Trust and, therefore, it was not open for the Nagpur Improvement Trust to entertain bogus and frivolous objection raised by the respondent No. 8. However, action of Chairman, Nagpur Improvement Trust of withholding the release letters till title is proved by the petitioners in the Court of law vide impugned order dated 20-10-2005 is not only misconceived, but also inconsistent with the provisions of the Gunthewari Act and, therefore, cannot be sustained in law. Similarly, same amounts to review of the earlier order and in absence of any power of review under the Nagpur Improvement Trust Act, the impugned order is bad in law on this count also.

21. Shri Jaiswal, learned Counsel for the respondent Nos. 5 to 7, submitted that during pendency of Regular Civil Suit No. 52/2004 filed by the respondent Nos. 5 and 6, the land was sold to the respondent No. 8 and, therefore, suit itself was withdrawn by the respondent Nos. 5 and 6 and hence, the respondent Nos. 5 and 6 are not directly connected with the cause of action involved in the present petitions. It was further submitted that short submissions filed on behalf of respondent Nos. 5 to 7 may be treated as return.

22. Shri Manohar, learned Counsel for the respondent No. 8, supported the impugned order dated 20-10-2005 passed by the Chairman, Nagpur Improvement Trust and contended that after taking into consideration pros and cons as well as claim and counter-claim made by the parties to the proceedings regarding legal possession, ownership of land in question as well as documents submitted by them, the Chairman, Nagpur Improvement Trust has recorded in the impugned order that it is difficult to come to the conclusion as to who is the real owner and in legal possession of the land in question and till the said claim is adjudicated and decided by the competent Court of law, it will not be possible for the Nagpur Improvement Trust to consider request for regularisation of plots in favour of any Society or individual members and the Society is asked to get its title proved through the Court of law and till such time, aspect of regularisation is withheld. It was, therefore, contended that the impugned order is just and proper and sustainable in law.

23. Learned Counsel Shri Manohar contended that the respondent No. 8 had entered into a valid agreement of sale with respondent Nos. 5 to 7 on 7-2-1986 in respect of land in question. There is no dispute between respondent Nos. 5 to 8 and the respondent Nos. 5 to 7 agreed and acknowledged that the land has been validly sold to the respondent No. 8. In the property card (Aakhiv Patrika) of the said property, the respondent No. 8 is shown as owner. It was further contended that the said land is also shown in the "cluster map" of the Nagpur Improvement Trust itself as land held by the respondent No. 8.

24. It was argued by learned Counsel Shri Manohar that the petitioners alleged to have entered into an agreement of sale with Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale on 18-11-1983 and therefore in a deceitful manner, filed an application under the Gunthewari Act, which is purported to be dated 28-8-2002 and the said application refers to agreements dated 18-11-1983 and 28-9-1995 as the documents of ownership. It was contended that agreement dated 18-11-1983 is bogus, fabricated and was never executed by the original owners of the land. Knowing fully well that document dated 18-11-1983 was a fabricated one, the Nelco Co-operative Housing Society gave up its claim based on the said document and produced another forged and fabricated document dated 15-4-1983 and, therefore, the claim of the Nelco Co-operative Housing Society and its members is based on the documents, which are not genuine.

25. It was submitted by the learned Counsel Shri Manohar that the alleged Power of Attorney dated 28-9-1995 does not give any right to the petitioners to transfer the land in question in any manner or deal with the said land in any manner. Even otherwise, Raje Ajitsingh Bhosale expired on 17-9-1996 and after his death, the Power of Attorney executed by him came to an end and, therefore, any act or step taken by the Power of Attorney Holder after death of Raje Ajitsingh Bhosale is invalid.

26. It was further contended by learned Counsel Shri Manohar that the petitioners have filed certain Deeds of Allotment and one of such Deeds of Allotment, which is filed on record, is purported to be dated 15-7-1988. It was submitted that there is no date mentioned in the said Deed of Allotment and, therefore, the Nelco Co-operative Housing Society has played a fraud on its members. Similarly, Power of Attorney did not permit Nelco Co-operative Housing Society to transfer the land. The agreements also do not permit the Nelco Co-operative Housing Society to transfer the land because it is not owner. It was also contended that the Nelco Co-operative Housing Society has executed confirmation deeds. The confirmation deeds were executed in the year 2004. They are executed by someone called Pradhan on behalf of the Nelco Cooperative Housing Society and not by Jichkar. It was submitted that the alleged Power of Attorney is not issued in favour of the Nelco Co-operative Housing Society, but in favour of one Jichkar alone and that Power of Attorney has also come to an end with death of Raje Ajitsingh Bhosale.

27. Learned Counsel Shri Manohar submitted that no certificate has been issued in favour of the petitioner Society or its members as contemplated under Section 4 of the Gunthewari Act and what has been issued to certain persons is a communication dated 13-12-2003. In the said communication, the Nagpur Improvement Trust has stated that if the terms and conditions mentioned in the said communication are fulfilled, then the said plots would be regularised. It was further submitted that contention of the petitioners that on 1-11-2003, the layout was sanctioned by the Nagpur Improvement Trust in the light of these facts is not sustainable in law.

28. It was also argued by learned Counsel Shri Manohar that recitals in the affidavit filed by the Nagpur Improvement Trust in the suit do not improve the case of the petitioners. The said affidavit was in reply to the application by the plaintiffs therein for taking action for wilful disobedience of the order passed in the said proceedings. It was contended that the recitals in the said affidavit can never be construed as admission on the part of the Nagpur Improvement Trust. The recitals in the affidavit were not based on the facts on record and incorrect factual position was reflected in the said affidavit and, therefore, recitals in the said affidavit are not binding either on the Nagpur Improvement Trust or respondents Nos. 5 to 7, Even otherwise, recitals in the affidavit demonstrate that layout was sanctioned and it is nowhere mentioned in the affidavit that the certificate contemplated under Section 4 of the Gunthewari Act was issued. Similarly, affirmation to the affidavit is one by Sandeep Bapat, Building Engineer, The affirmation states that the contents of paragraphs 1 to 10 are true and correct to his personal knowledge, belief and information. It was contended that such affidavit can never be called as affidavit on behalf of the Nagpur Improvement Trust and, therefore, same is not binding on the Nagpur Improvement Trust.

29. Learned Counsel Shri Manohar also argued that cause of action in the suit bearing No. 52/2004 was that the Nagpur Improvement Trust should not release any surplus land in favour of the Nelco Co-operative Housing Society. The suit was withdrawn because land was sold by the respondent Nos. 5 to 7 in favour of respondent No. 8 and, therefore, cause of action of respondent Nos. 5 to 7 did not survive. Similarly, respondent No. 8 is not bound by the same because respondent No. 8 had filed an application for being impleaded as a defendant. However, before the said application could be decided, without notice to the defendant No. 8, the suit was withdrawn by the respondent Nos. 5 to 7 and, therefore, all rights of the respondent No. 8 are intact.

30. Learned Counsel Shri. Manohar contended that perusal of the preamble of the Gunthewari Act read with Sections 3 to 7 thereof shows that the Act is legislated with a view to "regulate" the Gunthewari Development. The Act is, therefore, regulatory in nature. "Gunthewari Development" is defined in Section 2(a). It is defined to; mean "plots formed by unauthorisedly sub-dividing privately owned land with buildings, if any, on such plots, excluding excess vacant land under the Urban Land (Ceiling and Regulation) Act, 1976, not vested with the State Government, but excluding the land under encroachment. It was submitted that the Gunthewari Development is sub-division of privately owned land. It cannot be denied that privately owned land can be divided only by owners and never by a person, who is not the owner of the property. Section 2 (a) further excludes "land under encroachment from the Gunthewari Development". Thus, if the land is not sub-divided by the owner, it is not a Gunthewari Development.

31. Learned Counsel Shri. Manohar also contended that the word "layout" is defined by Section 2(b) of the Gunthewari Act to mean piece of land or contiguous land under common ownership sub-divided into plots. It is, therefore, evident that sub-division into plots is of the land, which is under common ownership and only owner can sub-divide the land and none else. Section 3 provides for regularisation of Gunthewari Development and stipulates that application shall be made before the prescribed date by the "plot-holder". Thus, plot-holder has to be owner of the land and none else. No person except the owner of the land can apply for Gunthewari Development. It was further contended that second proviso to Section 3(a) of the Gunthewari Act provides that the categories of land, which shall be eligible for regularization, include plots formed and transferred after 1-1-2001. The word "transferred" clearly shows that such plots have to be under the ownership and not simply possession, either permissive or by encroachment. Sub-section (2) of Section 3 provides for regularisation of the Gunthewari Development subject to mandatory general conditions. It was submitted that the conditions in Sub-section (2) of Section 3 can only be fulfilled by the owner of the land and since Nelco Co-operative Housing Society or its members at the relevant time were not owners of the land, they had no right even to apply under Section 3 of the Gunthewari Act.

32. Learned Counsel Shri Manohar contended that Section 4 of the Gunthewari Act provides that the "concerned plot-holders" shall apply for regularization before cut off date. The right to apply for regularisation is vested only in the plot owner, i.e. owner, who can take a decision to surrender or not to surrender the land as required under Section 3(2) of the Gunthewari Act. It was further argued by learned Counsel Shri Manohar that the contention of the petitioners that Sub-section (2) of Section 4 contemplates that even a person, who is casually in possession of the land or who is in permissive possession of the land is entitled for regularisation is misconceived, illogical and contrary to the Gunthewari Act. It was submitted that provisions of Clause (a) of Sub-section (2) of Section 4 of the Gunthewari Act require production of documentary proof of ownership and lawful possession of the plot. It was also contended that since petitioner Society or its members failed to produce documentary proof of ownership and title the Authorities were justified in refusing to regularise the layout.

33. Learned Counsel Shri Manohar argued that Section 5 of the Gunthewari Act deals with consequences of regularisation and no one except the owner of the land can take a decision for getting the land exempted either under the Urban Land (Ceiling and Regulation) Act, 1976 or getting it converted into another use under the Maharashtra Land Revenue Code. It is, therefore, apparent that it is only owner or joint owners, who have sub-divided the land into plots, though without permission of the Planning Authority, can apply for regularisation. Thus, right to apply under the Gunthewari Act vests only with the owner and not with anybody else.

34. It was also contended by the learned Counsel Shri Manohar that the contention canvassed by the learned Counsel for the petitioners that the impugned order amounts to review of the decision to regularise the plots already taken by the Nagpur Improvement Trust is untenable in law in view of the provisions of the Gunthewari Act. In the instant case, only communication dated 13-12-2003 is relied on by the petitioners to show that decision was taken by the Nagpur Improvement Trust to regularise the plots. It was further argued that Section 4(3) of the Gunthewari Act does not speak of any layout or sanctioning of the layout. It speaks of issuance of certificate of regularisation. Before the proceedings are complete, it cannot be said that the Authority is precluded from reviewing its order since neither the proceedings are terminated nor any decision has been reached and, therefore, the impugned order cannot amount to reviewing earlier decision taken by the Nagpur Improvement Trust. It was submitted that in view of the facts and circumstances, the petitions are devoid of substance and, therefore, deserve to be dismissed.

35. We have considered the rival contentions canvassed by the respective learned Counsel for the parties and perused the provisions of the relevant Acts, documents produced on record and the order passed by the Chairman, Nagpur Improvement Trust, which is impugned in the present petitions. Before we consider the validity of the impugned order, it will be appropriate to consider the validity of the impugned order, it will be appropriate to consider purport of relevant provisions of the Gunthewari Act.

36. The definition of "Gunthewari Development" is provided in subsection 1(a) of Section 2 of the Gunthewari Act, which reads thus:

Gunthewari development" means plots formed by unauthorisedly subdividing privately owned land, with buildings, if any, on such plots including excess vacant land under the Urban Land (Ceiling and Regulation) Act, 1976, not vested in the State Government, but excluding land under encroachment.

Section 3 of the Gunthewari Act deals with regularisation of Gunthewari developments and relevant portion of Section 3 in respect of controversy in issue reads thus:

3(1) - All Gunthewari developments existing as on the 1st January 2001, shall, on an application being made in this behalf by the plot-holder, to the Planning Authority, as provided in Section 4, be eligible for being considered by the Planning Authority for regularisation.

Proviso to Section 3 is not relevant for the controversy in issue. Sub-section (2) of Section 3 provides for regularisation of any Gunthewari Development subject to certain conditions. Section 4 of the Gunthewari Act deals with procedure for regularisation and reads thus:

4(1) : The concerned plot-holder shall apply for regularisation of Gunthewari development within a period of six months from the date of coming into force of this Act or such extended time as the Planning Authority may permit.

(2) The application shall be accompanied, inter alia by -

(a) documentary proof of ownership or lawful possession of the plot;

(b) existing layout plan;

(c) plan of existing construction on such plot;

(d) rectification plan;

(e) an undertaking by the applicant to rectify uncompoundable infringements;

(f) demand draft, drawn on any scheduled bank to cover the amount due as compounding fee and development charge.

(3) The Planning Authority shall scrutinise the case for fulfilment of the stipulated requirements laid down under Sub-section (2) including proof of actual rectification of uncompoundable infringements and thereafter, issue a certificate of regularisation, if satisfied on all these counts.

Section 5 of the Gunthewari Act provides for consequences of regularisation and reads thus:

5(1) Notwithstanding anything contained in any other law for the time being in force, on being regularised, the Gunthewari development shall be deemed to have been exempted under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 from the provisions of Chapter III of the said Act and converted to non-agricultural use for all purposes of the Maharashtra Land Revenue Code, 1966, subject to the payment of non-agricultural assessment and the other terms and conditions of such conversion, and the provisions of the Development Plan or the Regional Plan, as the case may be, shall, so far as such development is concerned, stand modified or relaxed, as may be required.

(2) On such regularisation of Gunthewari development under Section 3, by the concerned Planning Authority, all Court cases or other proceedings, filed by such Planning Authority, and pending in any Court insofar as they relate to such unauthorized development, shall abate.

37. In order to understand the scheme of regularisation provided under the provisions of the Gunthewari Act, the purport of abovereferred provisions is required to be understood in its right perspective. There are two requirements so far as definition of Gunthewari development is concerned, namely, (a) land must be privately owned land including excess vacant land under the Urban Land (Ceiling and Regulation) Act, 1976, and (b) the said land is unauthorisedly subdivided into plots. Similarly, Section 3 of the Gunthewari Act contemplates that holders of the plots in the Gunthewari development existing as on 1-1-2001 are eligible to apply to the Planning Authority for regularisation as per procedure provided in Section 4 of the Gunthewari Act. Section 4 of the Gunthewari Act stipulates that the concerned plot-holder is required to apply for regularisation of the Gunthewari Development within a period of six months from the date of coming into force of the said Act or within such extended period as the Planning Authority may permit. Sub-section (2) of Section 4 provides for documentary evidence required to be submitted along with application for regularisation. Clause (a) of Sub-section (2) of Section 4 requires the plot-holder to submit documentary proof of ownership of the plot or lawful possession of the plot. The language used in Clause (a) of Sub-section (2) of Section 4 of the Gunthewari Act is totally unambiguous and completely clear and, therefore, word "or" used in the said clause is required to be construed keeping in view the object of the Gunthewari Act as well as purpose to be achieved by the scheme evolved by the provisions of Section 4 of the Gunthewari Act. The word "or" is used to link alternatives and in the context in which it is used would mean that production of either documentary proof of ownership or documentary proof of lawful possession shall fulfil the requirement of Clause (a) of Sub-section (2) of Section 4 of the Gunthewari Act. It is, therefore, implicitly clear that in view of the intention of the Legislature and object of the Gunthewari Act, word "or" cannot be read as "and". Therefore, it is evident that the plot-holder, who has applied for regularisation of Gunthewari development, is required to submit documentary proof either of ownership of plot or lawful possession of the said plot and is not required to submit both. Similarly, plot-holder has to fulfil other requirements stipulated in Clauses (b), (c), (d), (e) and (f) of Sub-section (2) of Section 4 of the Gunthewari Act.

38. In other words, plot-holder may not be owner of the said plot, but if was in lawful possession of the said plot, was eligible to be considered for regularisation of Gunthewari development under Clause (a) of Sub-section (2) of Section 4 of the Gunthewari Act. It is not the purport of the provisions of Section 4 of the Gunthewari Act that owner of the plot alone is eligible for regularisation of Gunthewari development. Even the person having lawful possession of the plot is equally eligible for regularisation of Gunthewari development subject to fulfilment of other conditions. The contention canvassed by Shri Manohar, learned Counsel for the respondent No. 8, that right to apply for regularisation under the Gunthewari Act vests only with the owner and not with anyone else is completely misconceived and devoid of substance and, therefore, same is rejected.

39. Perusal of the impugned order shows that the Chairman, Nagpur Improvement Trust has not given any reasons for rejecting the documentary evidence submitted by the Nelco Co-operative Housing Society and its members, such as agreement of sale, possession deed, general power of attorney, deeds of allotment of plots to the members of the Society issued by the Nelco Cooperative Housing Society, order dated 11-7-2002 passed by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, order dated 25-6-1996 passed by the Additional Collector, order dated 2-7-1996 passed by the Additional Collector whereby permission was granted to convert agricultural land of survey numbers in question, aspect of sanctioning of layout with effect from 1-11-2003, issuance of demand notices dated 13-12-2003 by the Nagpur Improvement Trust, conduct of Nagpur Improvement Trust to forward release letters to the Despatch Department of Nagpur Improvement Trust for dispatching the same to the individual members of the Society, affidavit filed by the Nagpur Improvement Trust in Regular Civil Suit No. 52/2004, effect of withdrawal of suit by the respondent Nos. 5 and 6, etc. and, therefore, in our considered view, the impugned order suffers from the total non-application of mind and passed in a very casual and cursory manner.

40. Similarly, the following observations made by the Chairman, Nagpur Improvement Trust in para (7) of the impugned order, in our view, are inconsistent with the scheme and procedure stipulated in Section 4 of the Gunthewari Act:

Moreover, there is no document of title, which has been produced on record by the respondent No. 4 or by the petitioners regarding ownership of land from the original land-owners."

"From the perusal of the record, it will be very difficult to come to the conclusion as who is the real owner and in legal possession of the property in question till the said claim is not adjudicated and decided from the competent Court of law regarding their respective ownership and having been in legal possession of the property in question.

The final conclusions recorded in the impugned order by the Chairman, Nagpur Improvement Trust read thus:

In the circumstances, I come to the conclusion that the respondent No. 8 is not entitled for release/regularisation in its favour. So also, the Nagpur Improvement Trust should not take any action of regularisation, release in favour of the respondent No. 4, Nelco Griha Nirman Sahakari Sanstha or the petitioners, who claim to be the members of the respondent No. 4/Society. In this view of the matter, the parties should get their title proved through court of law. Till such time, N. I. T. should not regularize the plots in favour of the any society or individual members. The amount, if deposited by any individual member towards development charges, be returned back to them, if they so desire. Accordingly, the objection dated 18-5-2005 is hereby disposed of.

41. The above referred findings recorded in the impugned order by the Chairman, Nagpur Improvement Trust clearly demonstrate that the Chairman, Nagpur Improvement Trust has misconceived the purport of provisions of Section 4 of the Gunthewari Act as well as procedure stipulated therein: As we have already observed hereinabove, as per procedure for regularisation provided under Section 4 of the Gunthewari Act, the concerned holder of the plot is entitled to apply for regularisation of Gunthewari development within a stipulated period and apart from other documentary evidence, is required to submit documentary proof of either ownership of the said plot or lawful possession of the said plot and not both. The Chairman, Nagpur Improvement Trust while considering the objection dated 18-5-2005 of the respondent No. 8 was only required to consider as to whether the documentary evidence submitted by the petitioner. Society/its members is adequate to hold that possession of members of the Nelco Cooperative Housing Society is a legal possession and nothing else. However, from the abovereferred findings recorded in the impugned order, it appears that the Chairman, Nagpur Improvement Trust has wrongly construed the requirement under Clause (a) of Sub-section (2) of Section 4 of the Gunthewari Act by holding that plot-holders are required to submit documentary proof of ownership and lawful possession of plots and, therefore, asked the Nelco Co-operative Housing Society as well as members of the said Society to get their title proved through Court of law and directed the Nagpur Improvement Trust not to take any action of regularisation till such time. The findings recorded in the impugned order are inconsistent with the procedure prescribed under Section 4 of the Gunthewari Act and, therefore, cannot be sustained in law.

42. So far as entitlement of respondent No. 8 Nagpur Beghar Mitra Gruhnirman Sahakari Sanstha Ltd. for regularisation under the Gunthewari Act is concerned, the Chairman, Nagpur Improvement Trust has concluded the issue by holding that the respondent No. 8 is not entitled for regularisation in its favour. The respondent No. 8 has not challenged the impugned order and, therefore, the said finding in the impugned order has reached finality and foreclosed the claim of respondent No. 8, if any, for regularisation under the Gunthewari Act insofar as land in question is concerned.

43. In the instant case, for the reasons stated hereinabove, the impugned order cannot be sustained in law since it suffers from total non-application of mind in respect of documentary evidence placed on record by the petitioners as well as provisions of Section 4 of the Gunthewari Act since no reasons are given as to whether the documentary evidence placed on record was either inadequate or inconsistent/consistent with the provisions of Section 4 of the Gunthewari Act and, therefore, in our considered view, the objection dated 18-5-2005 raised by the respondent No. 8 needs to be re-considered by the Chairman, Nagpur Improvement Trust in the light of interpretation arrived at by us in respect of relevant provisions of the Gunthewari Act particularly Section 4 as well as other observations made in the present judgment on the basis of following aspects and points:

(i) Whether land in question bearing Survey Nos. 82, 85, 86, 95 and 97 admeasuring 10.38 acres of Mouza Khamla came to the share of Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale as per compromise arrived at by Bhosale family in Civil Suit No. 121/1974 ?

(ii) Whether genuineness of documents, i.e. agreement of sale of land in question, dated 15-4-1983 entered into by Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale with the Nelco Co-operative Housing Society as well as possession deed dated 18-11-1983 whereby Nelco Co-operative Housing Society claimed to have been put in lawful possession of the land in question, was challenged by the original owners during their lifetime or by the respondent Nos. 5 and 6 and if they have not challenged genuineness of these documents, in that case, whether respondent No. 8 without questioning genuineness of these documents in the competent Civil Court is entitled to challenge the same merely by filing present objection in this regard before the Nagpur Improvement Trust without approaching the Civil Court ?

(iii) Consider the document, i.e. General Power of Attorney dated 28-9-1995 executed by Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale in favour of President, Nelco Co-operative Housing Society and verify as to whether there is a specific mention in the said document that Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale had entered into an agreement of sale in respect of property in question.

(iv) Whether genuineness or validity of the said Power of Attorney was challenged before the Civil Court either by the original owners or by their successors, i.e. respondent Nos. 5 and 6 at any point of time and in absence thereof, whether respondent No. 8 is entitled to challenge genuineness of the said Power of Attorney before the Nagpur Improvement Trust without approaching the Civil Court?

(v) Whether Nelco Co-operative Housing Society prepared the layout of the land in question and the members of the said Society in the year 1987-88 purchased the plots in their individual names from the said Society and whether the said Society has issued Deeds of Allotment of plots to the individual members of the Society? Verify these facts from the record of the Nagpur Improvement Trust and record finding.

(vi) Whether the order dated 25-6-1996 was passed by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 in the proceedings initiated by the Power of Attorney Holder, namely, President, Nelco Co-operative Housing Society on behalf of Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale for grant of exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976? Similarly, consider revised order dated 11-7-2002 passed by the competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 whereby the competent Authority excluded the land in question admeasuring 42,024. 30 square metres alleged to have been possessed by the Nelco Co-operative Housing Society and its members in view of sanction of L. D Scheme of Nelco Co-operative Housing Society as per order dated 25-6-1996 while determining the surplus land of the original owners and record your finding whether these orders coupled with the agreement of sale dated 15-4-1983, possession deed dated 18-11-1983 and General Power of Attorney demonstrate lawful possession of the petitioners or not in respect of land in question.

(vii) Consider the order dated 2-7-1996 passed by the Additional Collector in the proceedings initiated on behalf of Raje Ajitsingh Bhosale and Raje Laxmansingh Bhosale by their Power of Attorney Holder Shri Nilkanthrao Ganpatrao Jichkar, President of Nelco Co-operative Housing Society for permission to convert use of land bearing Survey Nos. 78, 79, 83, 84, 67/3, 82, 85, 86, 95 and 97 admeasuring 15049.50 square metres of Mouza Khamla whereby the competent Authority granted permission to convert the said land for non-agricultural use under Section 44 of the Maharashtra Land Revenue Code and record finding whether the said order shows lawful possession of the petitioners or not.

(viii) Consider the reply of the Nagpur Improvement Trust filed in Regular Civil Suit No. 52/2004 to the application under Order XXXIX, Rule 2-A of the Code of Civil Procedure and particularly recitals in para (7) of the said reply wherein it is mentioned that the Nelco Co-operative Housing Society has applied through President for regularisation of layout on suit land by depositing Rs. 1,65,000/- and has submitted relevant documents of ownership, which include registered deeds of allotment of the plots in the names of individual plot-holders registered in the year 1988 . It is also mentioned in the said reply that the cases of individual plot-holders, after scrutiny, were found as per the provisions of the Gunthewari Act and hence, Nagpur Improvement Trust has sanctioned the layout on 1-11-2003. It is further mentioned in the reply that the Nagpur Improvement Trust has issued demand notices to the individual plot-holders in the month of December 2003, i.e. prior to filing of the suit. The abovereferred statements are made in the reply filed on behalf of Nagpur Improvement Trust before the competent Civil Court. Record your finding whether or not the Nagpur Improvement Trust is bound by those statements made in the reply/affidavit as well as stand taken before the competent Civil Court.

(ix) Verify and consider as to whether Nagpur Improvement Trust has issued demand notices dated 13-12-2003 to the individual members of the Nelco Co-operative Housing Society whereby they were called upon to pay the amount of development charges and whether 135 members of the Nelco Co-operative Housing Society pursuant to the said demand notices paid the development charges to the Nagpur Improvement Trust and record finding as to whether this conduct of the Nagpur Improvement Trust shows the lawful possession of the petitioners or not.

(x) During the course of hearing of the writ petitions, the learned Counsel for the petitioners placed on record some documents obtained from the office of Nagpur Improvement Trust after giving application under the Right to Information Act in order to demonstrate that after sanction of layout by the Nagpur Improvement Trust with effect from 1-11-2003 and after payment of development charges by the individual members of the Nelco Co-operative Housing Society, a bunch of release letters was forwarded by the Nagpur Improvement Trust to its Despatch section for necessary despatch to the individual members of the Society. Verify this aspect from the records of the concerned Department of the Nagpur Improvement Trust and record finding in this regard.

(xi) Consider the effect of withdrawal of Regular Civil Suit No. 52/2004 by the respondent Nos. 5 and 6 and after withdrawal of the suit, whether respondent No. 8 can question the acts done by the original owners of the land as well as genuineness of the documents executed by them before the Nagpur Improvement Trust without approaching the competent Civil Court,

(xii) Verify from record whether Nagpur Improvement Trust has already granted sanction on 1-11-2003 and whether demand notices were issued by the Nagpur Improvement Trust to the individual members of the Nelco Co-operative Housing Society and whether amount of development charges was paid by the members of the said Society and whether Nagpur Improvement Trust was about to despatch release letters to the individual members of the Nelco Co-operative Housing Society and record finding whether or not decision to regularize/sanction was already taken by the Nagpur Improvement Trust and if answer is yes, then consider whether the said decision can be reviewed by the Nagpur Improvement Trust in the absence of specific power of review provided under the Act and record finding in this regard.

44. We direct the Chairman, Nagpur Improvement Trust to re-consider the objection dated 18-5-2005 filed by the respondent No. 8 in the light of the above referred aspects/points as well as on the basis of documentary evidence placed on record by the petitioners and as per relevant provisions of the Gunthewari Act and after following principles of natural justice, give reasons one way or the other and record finding as to whether documentary evidence placed on record by the petitioners is adequate or inadequate to hold that possession of the plot-holders, i.e. members of the Nelco Co-operative Housing Society is lawful possession and whether Nagpur Improvement Trust has already accepted the claim of the petitioners and granted sanction on 1-11-2003 as reflected in the affidavit filed by the Nagpur Improvement Trust in Regular Civil Suit No. 52/2004.

45. For the reasons stated hereinabove, the impugned order dated 20-10-2005 passed by the respondent No. 2 Chairman, Nagpur Improvement Trust is quashed and set aside. The matter is remanded back to the respondent No. 2 for re-consideration of the objections of the respondent No. 8, dated 18-5-2005 in the light of the observations and aspects referred to hereinabove, on its own merits according to law and after following principles of natural justice. The respondent No. 2 is directed to take a decision as early as possible and in any case not beyond the period of three months from the date of receipt of this judgment. Till decision is taken by the respondent No. 2, the parties are directed to maintain status quo.

46. The petitions are partly allowed in the above terms. No order as to costs.