Bombay High Court
Chairman Nagpur Improvement ... vs Ratiram S/O Sitaram Patil on 28 July, 2016
Bench: Ravi K. Deshpande
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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
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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
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