Arvind Muralidhar Kulkarni & 4 Ors vs Govt.Of Mah.,Urban Devp.Dept. & 3 ...
2017 Latest Caselaw 3050 Bom

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

                                         Writ Petition No.2997 of 2000



              1]       Arvind Muralidhar Kulkarni,
                       aged 45 years, R/o.- Pande Layout, Nagpur.

              2]       Prakash Bhaiyalal Parate,
                       aged 53 years, R/o.- Pande layout, Nagpur. 

              3]       Vijay Bhaiyalal Parate,
                       aged 43 years, R/o.- Pande layout, Nagpur.

              4]       Smt. Savitridevi wd/o  Khattumal Harchandani,
                       aged 70 years, R/o.- New Colony, Nagpur. 

              5]       Smt. Usha w/o Prakash Dahalyani,
                       aged 36 years,  R/o.-New Colony, Nagpur.        .... Petitioners.



                                                               -Versus-



              1]       Government of Maharashtra
                       through its Secretary,
                       Urban Development Department, 
                       Mantralaya, Mumbai-32.

              2]       The Nagpur Improvement Trust, Nagpur, 
                       through its Chairman having offices 
                       at Sadar, Nagpur.




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              3]       Indraprastha Gruha Nirman Sanstha Maryadit,
                       The Cooperative Housing Society 
                       registered under the Cooperative Societies Act, 1960, 
                       having Registration No.NGP/HSG/790/74 
                       and having office at Poonam Vihar, Bhamati, 
                       Nagpur, through its President,

              4]      Gurudas Shikshan Sanshta,
                      through its Chairman/Secretary, 
                      Savarkar Nagar, Khamla Road, 
                      near Khamla Square, Nagpur.                        .... Respondents.
              -----------------------------------------------------------------------------------
              Shri  R.S. Parsodkar, Advocate for respondent no.4.
              Shri V.P. Maldhure, Assistant Government Pleader for respondent no.1.
               -----------------------------------------------------------------------------------
               Coram : R. K. Deshpande & 
                             Mrs. Swapna Joshi, JJ.

               Dated  : 12    June, 2017
                              th
                                           

              ORAL JUDGMENT (Per R. K. Deshpande, J.)

The land bearing Khasara Nos. 37, 38, 39 and 41 situated at

mouza Khamala admeasuring 16.22 acres was owned by the

members of one Parate family. The respondent no.3- Indraprastha

Gruha Nirman Sanstha Maryadit claims to have purchased

16.22 acres of land consisting of the aforesaid khasra numbers. Out

of it, area admeasuring 15.79 acres under the acquisition of the

Nagpur Improvement Trust for the 'Ajni Street Scheme'. An award

was passed on 09-02-1984 and the land stood vested in the Nagpur

Improvement Trust [for short, "NIT"]. On 07-06-1989 all these four

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khasra numbers were regularized under "572 Layouts Scheme" and

the name of respondent no.3 Society in the list of regularization was

at serial no.166. It is informed that respondent no.3 Society has

already constructed the residential flats on khasra nos.38, 39 and 41.

Khasara no.37 was the public utility land shown as such in the

Development Plan of City of Nagpur. It stood vested in the NIT.

There was a proposal for allotment of this khasra no.37 to respondent

no.4 Society and therefore the petitioners who claim to have be the

residents in the constructed apartment in khasra nos. 38, 39 and 41

have filed this petition raising the issue of competency of the NIT to

dispose of the public utility land for any other purpose.

2] The matter was admitted on 27-01-2003. By way of interim

relief, the respondents were restrained from proceeding with the

construction and development until further orders. Shri Parsodkar,

the learned Counsel appearing for respondent no.4-Gurudas

Shikshan Sanstha has invited our attention to the orders passed in

Writ Petition No.4013 of 2001 passed on 06-07-2001 which is

reproduced below :-

"Mr. Parsodkar, learned counsel for the partitioner, contended that the Government has accorded its approval to the allotment of the land in question admeasuring 693 sq.mtr. out of kh.no.37 on 1.4.1999 and the Rate Fixation Committee on

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20.5.1999 fixed the rate of the land at Rs. 6,350/- per sq.mtr. The learned counsel contended that the petitioner is ready to deposit the entire amount as demanded and fixed by the respondents with Nagpur Improvement Trust within a period of six weeks from today.

On the basis of the statement made by the learned counsel for the petitioner, the counsel for the Nagpur Improvement Trust states that if the petitioner deposits the amount as demanded and fixed by the Rate Fixation Committee within six weeks from today, the allotment will be done in favour of the petitioner in respect of the suit land. In that view of the matter, the writ petition stands disposed of accordingly."

3] Shri Parsodkar, the learned Counsel appearing for respondent

no.4 further submits that the receipt of payment is placed on record

issued by the NIT on 16-08-2001 in respect of deposit of the amount

by the respondent no.4 Society within period stipulated by this Court

in the aforesaid order.

4] The question of competency of the NIT to allot public utility

land reserved in the layout is covered by the decision of the Hon'ble

apex Court in the case of Narayanrao Jagobaji Gawande Public

Trust vs. State of Maharashtra and others, reported at

(2016) 4 SCC 443. Paragraph 10 of the decision is reproduced

below :-

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"10. Feeling aggrieved by the action of allotment of land, comprised in Narayanrao Gawande layout, taken by Respondent 2 NIT, the appellant Trust approached the High Court by filing Writ Petition No.1034 of 1995. Some other writ petitions were also filed by the aggrieved parties. In the said writ petitions, the aforesaid action of Respondent 2 NIT was challenged on the ground of being without jurisdiction and authority of law and also being contrary to the provisions of the NIT Act. The High Court vide its common judgment and order dated 29-8-2008 has dismissed all the writ petitions on the ground that Respondent 2 NIT is free to allot the land by following due procedure of law for public utility purpose. It neither found arbitrariness nor illegality in the aforesaid action of Respondent 2 NIT in allotting the said public utility land as reserved in the sanctioned layout plan. Hence, these appeals have been filed urging various grounds questioning the correctness of the common impugned judgment and order passed by the High Court."

5] This Court had taken a view that the NIT was competent to

allot the public utility land as reserved in the sanctioned layout plan.

This decision has been confirmed by the Hon'ble apex Court by

dismissing an appeal. The point, therefore, remains no longer

res integra.

6] Even otherwise the land was allotted to respondent no.4

Society and as per the order dated 06-07-2001 passed by the Division

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Bench of this Court reproduced above. Therefore, we do not find

any substance in this petition. The same is dismissed. No order as

to costs.

                                 JUDGE                                             JUDGE




              Deshmukh