Bombay High Court
Suresh S/O Raghuvir Prasad And ... vs The State Of Maharashtra, Thr. ... on 11 July, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 56 of 2017
Applicants : 1) Suresh s/o Raghuvir Prasad, aged about
42 years, Labour, r/o 25, Bhimwadi, Behind
Pahune Lawn, Uppalwadi, Kamthi Road, Nagpur
2) Shaikh Shiraj s/o Shaikh Khudabaksh, aged
about 48 years, Occ: Private, r/o 459,
Deshpande Layout, Behind Day-to-day, Wardhman
Nagar, Nagpur
3) Smt Jahdulnisha w/o Nawabkhan, aged about
60 years, Occ: Household, r/o 98, Patel Nagar,
Near A. K. Glass, Pivli Nadi, Kamthi Road,
Uppalwadi, Nagpur
4) Mohammad Shakil Mohd. Yusuf Qureshi,
aged about 65, Occ: Private, r/o 960, Mehbub-
pura, Behind Sharda Company, Pivli Nadi,
Kasmthi Road, Post Uppalwadi, Nagpur
5) Sayyad Irshad Ali s/o Khurshid Ali, aged
about 32 years, Occ: Labour, r/o 135, New
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Bidipeth, Thakur Plots, Mohta Tajbagh,
Post Ayodhya Nagar, Nagpur
6) Imtiyaz Ahmad s/o Mohd. Yasin, aged about
42 years, Occ: Private, r/o Takiya Diwan Shah,
Near Qamar High School, Mominpura, Nagpur
7) Shaikh Sultan s/o Shaikh Rahamtulla @
Nasroo, aged about 48 years, Occ: Private,
r/o Juni Mangalwari, Near Badi Masjid,
Adamshah Chouk, Nagpur
8) Lizi Kaur w/o Rajendra Singh Dhillon, aged
about 60 years, Occ: Household c/o Shri Suresh
Prasad, 25, Bhimwadi, Behind Pahune Lawn,
Post Uppalwadi, Kamthi Road, Nagpur
versus
Respondents : 1) The State of Maharashtra, through Secretary,
Department of Urban Development, Mantralaya,
Mumbai
2) The Nagpur Improvement Trust, Nagpur,
through its Chairman, Station Road, Sadar,
Nagpur
3) The Divisional Officer, Nagpur Improvement
Trust (North-2), Vaishali Nagar, Nagpur
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4) The Nagpur Municipal Corporation, through
Commissioner, Town Planning Department,
Civil Lines, Nagpur
5) The Additional Collector and Competent
Authority (Urban Land Ceiling), Collectorate,
Civil Lines, Nagpur
6) Nasheman Cooperative Housing Society Ltd,
through its President Mohammad Ismail s/o
Mohammad Ibrahim, aged about 65 years,
Occ: Business, r/o Gittikhadan, near Choube
Katiya Bhandar, Borgaon Road, Nagpur
(2nd address: Near Sadar Masjid, Golchha Marg,
Main Road, Sadar, Nagpur)
7) M/s Shree Ganesh Builders, through its
Partner Pahilaraj s/o Jaggumal Sachani, r/o
42, Jaripatka, Nagpur
(2nd address: Block No. 1, Mudliyar Building,
Near Anand Ashram, Dhantoli, Nagpur)
8) M/s Hitesh Builders & Developers, through
its Partner, Mahesh Jaggumal Sahani, r/o J.B.
Wing, Shop No. 18, Mangalwari NMC Complex,
Sadar, Nagpur
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(2nd address: Block No. 1, Mudliyar Building,
Near Anand Ashram, Dhantoli, Nagpur)
(3rd address: 42, Jaripatka, Nagpur)
9) Sandip Developers Private Limited,
through Proprietor Anil Agrawal, Gulmohor
Apartment, Near Hislop College, Civil Lines,
Nagpur
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Civil Revision Application No. 57 of 2017
Applicants : 1) Suresh s/o Raghuvir Prasad, aged about
42 years, Labour, r/o 25, Bhimwadi, Behind
Pahune Lawn, Uppalwadi, Kamthi Road, Nagpur
2) Shaikh Shiraj s/o Shaikh Khudabaksh, aged
about 48 years, Occ: Private, r/o 459,
Deshpande Layout, Behind Day-to-day, Wardhman
Nagar, Nagpur
3) Smt Jahdulnisha w/o Nawabkhan, aged about
60 years, Occ: Household, r/o 98, Patel Nagar,
Near A. K. Glass, Pivli Nadi, Kamthi Road,
Uppalwadi, Nagpur
4) Mohammad Shakil Mohd. Yusuf Qureshi,
aged about 65, Occ: Private, r/o 960, Mehbub-
pura, Behind Sharda Company, Pivli Nadi,
Kasmthi Road, Post Uppalwadi, Nagpur
5) Sayyad Irshad Ali s/o Khurshid Ali, aged
about 32 years, Occ: Labour, r/o 135, New
Bidipeth, Thakur Plots, Mohta Tajbagh,
Post Ayodhya Nagar, Nagpur
6) Imtiyaz Ahmad s/o Mohd. Yasin, aged about
42 years, Occ: Private, r/o Takiya Diwan Shah,
Near Qamar High School, Mominpura, Nagpur
7) Shaikh Sultan s/o Shaikh Rahamtulla @
Nasroo, aged about 48 years, Occ: Private,
r/o Juni Mangalwari, Near Badi Masjid,
Adamshah Chouk, Nagpur
8) Lizi Kaur w/o Rajendra Singh Dhillon, aged
about 60 years, Occ: Household c/o Shri Suresh
Prasad, 25, Bhimwadi, Behind Pahune Lawn,
Post Uppalwadi, Kamthi Road, Nagpur
versus
Respondents : 1) The State of Maharashtra, through Secretary,
Department of Urban Development, Mantralaya,
Mumbai
2) The Nagpur Improvement Trust, Nagpur,
through its Chairman, Station Road, Sadar,
Nagpur
3) The Divisional Officer, Nagpur Improvement
Trust (North-2), Vaishali Nagar, Nagpur
4) The Nagpur Municipal Corporation, through
Commissioner, Town Planning Department,
Civil Lines, Nagpur
5) The Additional Collector and Competent
Authority (Urban Land Ceiling), Collectorate,
Civil Lines, Nagpur
6) Nasheman Cooperative Housing Society Ltd,
through its President Mohammad Ismail s/o
Mohammad Ibrahim, aged about 65 years,
Occ: Business, r/o Gittikhadan, near Choube
Katiya Bhandar, Borgaon Road, Nagpur
(2nd address: Near Sadar Masjid, Golchha Marg,
Main Road, Sadar, Nagpur)
7) M/s Shree Ganesh Builders, through its
Partner Pahilaraj s/o Jaggumal Sachani, r/o
42, Jaripatka, Nagpur
(2nd address: Block No. 1, Mudliyar Building,
Near Anand Ashram, Dhantoli, Nagpur)
8) M/s Hitesh Builders & Developers, through
its Partner, Mahesh Jaggumal Sahani, r/o J.B.
Wing, Shop No. 18, Mangalwari NMC Complex,
Sadar, Nagpur
(2nd address: Block No. 1, Mudliyar Building,
Near Anand Ashram, Dhantoli, Nagpur)
(3rd address: 42, Jaripatka, Nagpur)
9) Sandip Developers Private Limited,
through Proprietor Anil Agrawal, Gulmohor
Apartment, Near Hislop College, Civil Lines,
Nagpur
Appearances in both the CRAs :
Shri D. B. Walthare, Advocate for applicants
Shri S. B. Bissa and Shri Shamal Kadu, Asst. Govt. Pleader for respondents
no. 1 and 5
Shri R. O. Chhabra, Advocate for respondents no. 2 and 3
Shri S. M. Puranik, Advocate for respondent no. 4
Shri A. S. Mehadia, Advocate for respondent no. 9
Coram : S. B. Shukre, J
Dated : 11th July 2017
Oral Judgment
1. Heard. Rule, made returnable forthwith in terms of order
dated 25th April 2017.
2. By the impugned order, an application filed under Order XI,
Rule 7 by the original defendants no. 7 and 8 (respondents no. 7 and 8 in
these applications) has been allowed and the plaint has been rejected as
against them. Their contention that no cause of action is disclosed against
them, has been accepted.
3. Learned counsel for the applicants has taken me through the
pleadings in the plaint. I have heard Shri D. B. Walthare, learned counsel
for the applicants; Shri Shamal Kadu, learned Assistant Government
Pleader for respondents no. 1 & 5; Shri R. O. Chhabra, learned counsel for
respondents no. 2 and 3; Shri S. M. Puranik, learned counsel for
respondent no. 4 and Shri A. S. Mehadia, learned counsel for respondent
no. 9. None appears for respondents no. 7 and 8 though duly served. I
have gone through the impugned order as well.
4. On going through the pleadings in the plaint, I find that there
is great merit in the argument of learned counsel for the applicants. There
is allegation against the respondents no. 7 and 8 made in a specific manner
that they have colluded with the Authority in cancelling the DP Road.
These allegations take within their fold a pleading of malafide action on
the part of the Authority and if the same is to be proved and adjudicated
upon properly, I do not think that it can be done in the absence of these
respondents no. 7 and 8 against whom such allegations are made. Even if
it is done in their absence and a finding is recorded against them, an
objection will arise that this could not have been done so in their absence.
Of course, it is also submitted by learned counsel for respondents no. 2,3,4
and 6 that there are only bald allegations against these respondents no. 7
and 8 and there would be a question as to what weight these allegations
should be attached to. In my view, that would be something to be
considered on merits of the case. At this stage, one has to go by pleadings
in the plaint and the pleadings as they are made in the plaint do not appear
to be not disclosing any cause of action against the respondents no. 7 and
8. All these aspects, it is seen from the impugned order, have not been
considered by the trial Court and the result is of an order passed against
the settled principles of law. Such an order needs to be quashed and set
aside.
5. In the result, revision applications are allowed. The impugned
orders are hereby quashed and set aside. The suit shall proceed against
respondents no. 7 and 8 as well in accordance with law. Interim
applications including an application for interim injunction are said to be
pending before the trial Court. The trial Court shall decide the same within
two months from the next date of appearance of the parties as this seems
to be necessary in view of the controversy involved in the suit. No costs.
S. B. SHUKRE, J
Joshi
