Krishna Kumar S/O Beni Prasad vs The Chairman Nagpur Improvement ...
2016 Latest Caselaw 4401 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.




                                                                    
                          WRIT PETITION NO.  3502   OF    2016


     PETITIONER:-                         Krishna Kumar s/o Beni Prasad, 




                                                                   
     (Senior Citizen)                     Aged about 78 years, Occu.: Retired, R/o 2 nd
                                          Floor,   Mount   Castle   Apartments,   Amravati
                                          Road, Hindustan Colony, Nagpur-440033. 




                                                   
                                             ...VERSUS... 

     RESPONDENTS :-            ig    1. The Chairman, Nagpur Improvement Trust,
                                        Near Liberty Cinema, Sadar, Nagpur. 

                                     2. The   Commissioner,   Nagpur   Municipal
                             
                                        Corporation, Nagpur. 

     ---------------------------------------------------------------------------------------------------
                      Mrs. Madhavi Khare, counsel for the petitioner.
                     Mr. J. B. Kasat, counsel for the respondent No.1. 
      


                   Mrs. S. S. Jachak, counsel for the respondent Nos.2.
     ---------------------------------------------------------------------------------------------------
   



                                             CORAM : SMT. VASANTI    A    NAIK &
                                                        MRS.SWAPNA JOSHI,  JJ.

DATED : 03.08.2016

O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)

Rule. Rule made returnable forthwith. The writ petition is

heard finally with the consent of the learned counsel for the parties.

2. By this writ petition, the petitioner seeks a direction against

the respondent-Nagpur Improvement Trust to issue the no objection

certificate to the petitioner for sale of apartment/flat.

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3. It is the case of the petitioner that though the petitioner is in

need of money and desires to sell the apartment, the respondent-

Nagpur Improvement Trust is not granting permission to the petitioner

to sell the flat on the ground that the encroachment in the parking area

of the apartments is not removed by the apartment owners. It is stated

that it would not be possible for only one apartment owner to remove

the encroachment in the parking area and, therefore, this cannot be a

ground for rejection of the prayer for permission to sell the apartment.

4.

Shri J. B. Kasat, the learned counsel for the respondent-

Nagpur Improvement Trust, has tendered an affidavit-in-reply in the

Court, today. The same is accepted on record. It is stated in the

affidavit-in-reply that this Court had directed the removal of

unauthorised constructions from all the parking areas and in view of

those directions, the Nagpur Improvement Trust has decided not to

issue the no objection certificate for construction or sale of the

apartments, till the encroachment is removed. It is stated that the

petitioner being one of the apartment holders, the petitioner would not

be entitled to sell the property, till the unauthorised construction in the

parking area is removed.

5. On hearing the learned counsel for the parties, we do not find

any justification for the action on the part of the Nagpur Improvement

Trust in not permitting the petitioner to sell the apartment. If there was

any other valid or bona fide reason for refusal of permission to sell the

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apartment, it could be justified. However, the Nagpur Improvement

Trust, has refused permission to the petitioner to sell the apartment

solely because there is some encroachment in the parking area of the

apartment. Only one apartment holder cannot be held liable for an

encroachment in the parking area and it would be necessary for all the

apartment holders in unified manner to remove the encroachment from

the parking area. If one of the apartment holders tries to remove the

encroachment from the parking area and the other apartment holders

oppose that move, there could be a serious problem. Before granting

the no objection certificate, the Nagpur Improvement Trust is asking

the petitioner to do or perform an act, which the petitioner cannot do

or perform on its own. We find that the action on the part of the

Nagpur Improvement Trust in denying the no objection certificate to

the petitioner on the aforesaid ground, is clearly arbitrary.

6. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned communication is quashed and set aside. We direct the

Nagpur Improvement Trust to grant the no objection certificate to the

petitioner to sell the apartment, if there is no other impediment in

doing so. The steps to grant the no objection certificate to the petitioner

should be taken within two weeks. Rule is made absolute in the

aforesaid terms with no order as to costs.

                                   JUDGE                                             JUDGE 

     KHUNTE





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                                   C E R T I F I C A T E




                                                           

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