Pradeep S/O Champalal Jaiswal vs The Chairman, Nagpur Improvement ...
2022 Latest Caselaw 9304 Bom

                                     1              wp5262.2022

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


                  WRIT PETITION NO.5262/2022



Pradeep S/o Champalal Jaiswal,
aged 63 Yrs., Occ. Business,
R/o 1/5, H.I.G. Indora, Dayanand Nagar,
Nagpur and Permanent R/o Near Bahuli,
Tah. Tumsar, Dist. Nagpur.                  ...    Petitioner


     - Versus -


1.   The Chairman,
     Nagpur Improvement Trust,
     L.I.C. Square, Sadar, Nagpur.

2.   The Section Officer (North),
     Nagpur Improvement Trust,
     Nagpur.                                ...   Respondent

            -----------------
Mr. P.P. Kotwal, Advocate for the Petitioner.
Mr. G.A. Kunte, Advocate for Respondent Nos.1 and 2.
            ----------------


            CORAM : SUNIL B. SHUKRE AND
                    G.A. SANAP, JJ.

DATE : 15.9.2022 2 wp5262.2022

ORAL JUDGMENT (Per Sunil B. Shukre, J.)

Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of learned counsel for the parties.

2. It is the contention of learned counsel for the

petitioner that the impugned notice affixed on the subject

property was issued without granting opportunity to the

petitioner. It is further submitted that if such opportunity of

hearing was granted, the petitioner would have been able to

convince the authority that he was not an encroacher on the

property but a lawful occupier of the property which is evident

from the allotment letter dated 3.12.1987 (page 17 of the

petition), the conditions of which including the payment of

ground rent are already fulfilled by the petitioner. Learned

counsel also submits that the entire lease amount up to 2017 has

also been paid by the petitioner and, therefore, it does not lie in 3 wp5262.2022

the mouth of Nagpur Improvement Trust to say that the

petitioner is an encroacher on the subject property.

3. Learned counsel for the respondents submits that a

civil suit was filed by the petitioner in respect of the same issue

and it was withdrawn by the petitioner and, therefore, now, the

petitioner cannot agitate the same issue before this Court. He also

submits that possession has already been taken over by the

respondents way back on 10.12.2021 and, therefore, the

petitioner continues in the property as illegal occupier and in the

nature of an encroacher.

4. By way of clarification, learned counsel for the

petitioner submits that in pursuance of the liberty granted by the

Civil Court, a fresh civil suit has been filed by the petitioner.

5. Whatever be the contentions of the rival parties,

one thing which comes to the fore is that the petitioner appears to 4 wp5262.2022

have not been granted any opportunity of hearing before the

impugned notice was issued to him. Grant of such an

opportunity to the petitioner was necessary in the present case as

there is something for the petitioner to say in his defence. From

the document of allotment of subject property to the petitioner

and the submissions that not only the ground rent but entire lease

amount up to 2017 has been paid by the petitioner, it cannot be

prima facie said that the petitioner could be straight-way

considered to be a rank encroacher on the subject property. In

such circumstances, it was necessary for the Nagpur Improvement

Trust to have granted reasonable opportunity of hearing to the

petitioner and not to have acted in haste. Unfortunately, we

gather from the submissions made by the learned counsel for the

respondents that the subject property has also been reallotted to

some other person thereby introducing third party interest in

property leading to creation of more complications in the matter.

In such a case, the Nagpur Improvement Trust ought to have

acted with caution and circumspection especially when there is an 5 wp5262.2022

allotment order dated 3.12.1987 issued in favour of father of the

petitioner.

6. In view of the above, we partly allow the petition and

quash and set aside the impugned notice. The matter is remanded

back to respondent No.1 for taking a fresh decision in the matter

after granting reasonable opportunity of hearing. The decision

shall be taken as early as possible preferably within two months

from the date of appearance of the petitioner before respondent

No.1. The petitioner shall appear before respondent No.1 on

28.9.2022. We grant liberty to respondent No.1 to make enquiry

into the aspect of existence of the legal heirs and their giving no

objection in the matter. All contentions raised by the parties are

kept open.

7. Rule is made absolute in the above terms. No costs.

                               (G.A. SANAP, J.)                    ( SUNIL B. SHUKRE, J.)
                        Tambaskar.
Signed By:NILESH VILASRAO
TAMBASKAR
Private Secretary
Date:16.09.2022 10:34