Kishore S/O Baburao Ambilwade vs State Of Mah., Through The ...
2023 Latest Caselaw 2604 Bom

               WP-712-2015(J)                                                                                     1/13




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

                                         WRIT PETITION NO. 712 OF 2015
                                                      and
                                     CIVIL APPLICATION (W) No.3101 of 2018
                      Kishore s/o Baburao Ambilwade,
                      Aged about 75 years, Occupation-Legal Practitioner,
                      R/o. Ramaji Wadi, New Shukrawari,
                      Nagpur.                                   ....... PETITIONER
                                                ...V E R S U S...

              1.      State of Maharashtra,
                      Through the Secretary,
                      Urban Development Department,
                      Mantralaya, Mumbai-400032.
              2.      The City of Nagpur Corporation,
                      Nagpur, through Municipal Commissioner,
                      Civil Lines, Nagpur.
              3.      The Municipal Commissioner,
                      Nagpur Municipal Corporation
                      Civil Lines, Nagpur.
              4.      The Assistant Engineer,
                      Public Works (Gandhibagh Zone),
                      Nagpur Municipal Corporation, Nagpur.
As per Hon'ble 5.      Vishva Prerak Pragati Mandal,
Court's order/
judgment dated
                       A Registered Society vide Registration No. F 8541,
17.03.2023 in          Registered Office at C/o. Wasudeorao Borkar,
CAW No.3101/           New Shukrawari Ramajiwadi, Nagpur.
2018 in W.P.
                       Through its President-
No.712/ 2015.
                       Mr. Haribahu Wasudeorao Borkar.                       .......        RESPONDENTS
              -----------------------------------------------------------------------------------------------------------
              Shri R.L.Khapre, Senior Advocate with Shri P.A.Deshpande, Advocate for
              petitioner.
              Shri Amit Madiwale, Assistant Government Pleader for respondent no. 1.
              Shri J.B.Kasat, Advocate for respondent nos. 2 to 4.
              Shri S.S.Ghate, Advocate for intervener.
              -----------------------------------------------------------------------------------------------------------
 WP-712-2015(J)                                                                 2/13




CORAM :- A.S.CHANDURKAR AND MRS. VRUSHALI V. JOSHI, JJ.
ARGUMENTS WERE HEARD ON    : 31.01.2023
JUDGMENT IS PRONOUNCED ON : 17.03.2023

JUDGMENT (Per A.S.CHANDURKAR, J.)

1. The challenge raised in this writ petition filed under Article 226 of the

Constitution of India is to the order dated 30.01.2016 passed by the Hon'ble

Minister, Urban Development Department, in proceedings under Section 47 of the

Maharashtra Regional and Town Planning Act, 1966 (for short, the Act of 1966) as

well as the notice dated 13.01.2015 issued by the Assistant Engineer, Public Works,

Nagpur Municipal Corporation, Nagpur. The petitioner has further prayed that the

respondents be restrained from dispossessing or interfering with the lawful

possession of the petitioner over the property in question.

2. The facts relevant for considering the prayers made in the writ petition

are that the petitioner claims to be the owner of half portion of Plot No.9 and Plot

No.10 admeasuring about 3618 square feet having Khasra No.441 in the area

known as Ramajichi Wadi, Nagpur. The petitioner claims to have purchased the

aforesaid land from Shri Ramaji Sawarkar by a registered sale deed dated

11.12.1986. The petitioner's name has been accordingly mutated in the City Survey

record and he has been paying property taxes as demanded by the Corporation.

The petitioner had filed R.C.S.No.1443 of 1987 against one Shri Vasant Anwane

seeking a declaration that the said defendant had no right to interfere in the WP-712-2015(J) 3/13

possession of the petitioner. The aforesaid suit was decreed on 30.12.1991.

Thereafter the petitioner filed R.C.S.No.1782 of 1993 on 06.09.1993 against the

Nagpur Improvement Trust (for short, the Trust) challenging the action of the Trust

in affixing its signboard on his property. This suit was decreed on 27.01.1999 and

it was declared that the Trust had no authority to affix its signboard on the

premises in question. A decree of perpetual injunction was also passed. This

decree has since attained finality. The petitioner thereafter sought amalgamation

of both the plots owned by him and such permission was granted by the

Corporation on 26.08.2005 by imposing certain conditions. Thereafter the building

plan submitted by the petitioner was sanctioned on 05.10.2005 by issuing a

demand note in that regard. The petitioner claims to have paid the requisite

amount as demanded. Thereafter on 07.12.2007 commencement certificate/

building permission was granted to the petitioner.

3. It appears that a complaint was made against the sanction of the

building plan and grant of commencement certificate by one Vishva Prerak Pragati

Mandal. Acting on the said complaint, the Corporation in March 2008 proceeded

to cancel the order of amalgamation dated 26.08.2005, building permission

granted on 14.02.2006 and commencement certificate granted on 07.12.2007.

Being aggrieved by the aforesaid decision, the petitioner preferred an appeal under

Section 388 of the City of Nagpur Corporation Act, 1948 read with Section 47 of

the Act of 1966 before the State Government. Since the aforesaid appeal was kept WP-712-2015(J) 4/13

pending without any adjudication, this writ petition was filed on 05.02.2015

praying for a direction to be issued to the State Government to decide the aforesaid

appeal in accordance with law. During pendency of the writ petition, the said

appeal came to be decided by the State Government on 30.01.2016. The

proceedings were remanded to the Corporation to take a decision afresh in the light

of the sanctioned plan of 1965 after considering the aspect of ownership coupled

with the orders passed by the Civil Court. By amending the writ petition this order

dated 30.01.2016 has also been challenged. Since the complainant - Vishwa

Prerak Pragati Mandal was not impleaded as a respondent in the writ petition, it

has filed Civil Application No 3101 of 2018 on 31.01.2018 seeking leave to

intervene in the writ petition. By the order dated 22.03.2019 the aforesaid Civil

Application was ordered to be considered when the writ petition was heard finally.

4. Shri R.L.Khapre, learned Senior Advocate for the petitioner after

referring to various factual aspects submitted that on 25.06.1941 proposed layout

plan came to be sanctioned by the Municipal Committee that was then existing.

The same was partially modified on 22.06.1942. The property in question being

half portion of Plot No.9 and Plot No.10 was initially owned by one Kusum Deshkar

and a building permit was thereafter granted to her on 03.06.1983. Since the

petitioner had title to the aforesaid property, he had approached the Civil Court on

two occasions. In the aforesaid suits filed by the petitioner his title to the aforesaid

land had been recognised and the reliefs had thus been granted to him. That WP-712-2015(J) 5/13

adjudication had attained finality. Referring to the findings recorded in para 10 of

the judgment dated 27.01.1999 in R.C.S.No.1782 of 1993 filed against the Trust, it

was submitted that the plan prepared in the year 1965 was considered in the said

proceedings and the defence raised by the Trust was not accepted. Since the said

decree had attained finality, it was not permissible for the Authorities as well as the

Corporation to seek to re-open the same. In that regard, reference was made to the

decision in Kishor s/o Ramalu @ Rambhau Telang vs. Municipal Commissioner,

Napgur Municipal Corporation and others [2015 (4) Mh.L.J. 836]. Since the

findings recorded by the Civil Court were also binding on the State Government,

the plan of 1965 could not have been again directed to be gone into as per the

impugned order passed under Section 47 of the Act of 1966. The learned Senior

Advocate referred to the memorandum of appeal preferred by the petitioner in the

said proceedings to urge that these grounds had been specifically raised. It was

then submitted that the plan dated 22.06.1942 had not been altered and the same

continued to operate even today. It was binding on the Trust as well as the

Corporation. By directing to re-consideration of the matter the State Government

sought to re-open the aspects that had attained finality. Moreover, since the

Corporation was claiming through the Trust, the earlier adjudication was binding

on it. Under the garb of remand, it would not be permissible for the Corporation to

go into the validity of the petitioner's title ignoring the findings recorded by the

Civil Court. There was no legal justification whatsoever for directing a remand of

the proceedings. It was also urged that on principles analogous to res judicata the WP-712-2015(J) 6/13

issues that had attained finality could not be re-opened, especially the map of

1965. In that context, reference was made to the decisions in Sulochana Amma vs.

Narayanan Nair [(1994) 2 SCC 14], Church of South India Trust Association vs.

Telugu Church Council [(1996) 2 SCC 520], Ramchandra Dagdu Sonavane (Dead)

by LRs and other vs. Vithu Hira Mahar (Dead) by LRs & others [(2009) 10 SCC

273] and Rusoday Securities Limited vs. National Stock Exchange of India Limited

and others [(2021) 3 SCC 401]. Similarly, it was not permissible for the

Corporation to interfere with the petitioner's possession after the matter was

examined by the Civil Court and the suits filed by the petitioner had been decreed.

In that regard, our attention was invited to the order dated 15.02.2016 passed in

Writ Petition No.547 of 2016 [Natthu C. Yadav and others vs. State of Maharashtra

and others]. It was thus submitted that the order dated 30.01.2016 was liable to

be set aside and the earlier permissions that were granted in accordance with law

dated 26.08.2005, 14.02.2006 and 07.12.2007 ought to be restored.

5. Shri J.B.Kasat, learned Advocate appearing for the Corporation as well

as Shri Amit Madiwale, learned Assistant Government Pleader appearing for the

State Government through its Urban Development Department opposed the

aforesaid submissions. It was submitted that what was under challenge was merely

an order of remand which was necessitated to have clarity in the matter. The

aspects of legality of the building plan and entitlement of the petitioner to

undertake construction on the land in question, it was directed to be re-considered WP-712-2015(J) 7/13

and the petitioner could justify his legal rights in those proceedings. The learned

Advocate for the Corporation produced relevant record for perusal and also

referred to the additional affidavit filed on behalf of the Corporation in that regard.

It was submitted that when the layout was sanctioned initially in the year 1941, the

same lapsed subsequently on 22.07.1949 in the light of the communication issued

by the Assistant Engineer of the then Municipal Committee, Nagpur. A fresh

application was made by the petitioner's vendor-Ramaji Sawarkar for having the

layout sanctioned on 07.05.1962. Thereafter on 25.06.1965 a diversion order

came to be passed and subsequently on 28.07.1965 the layout was sanctioned and

an agreement was accordingly entered into between the Chairman, Nagpur

Improvement Trust and the petitioner's vendor. Plot Nos.9 and 10 were agreed to

be kept open. Considering all these aspects, the appellate Authority found it

necessary to direct a re-consideration of the entire matter after considering the

record. During the course of hearing the Corporation had noticed that the layout

sanctioned in 1941 had lapsed and a fresh sanction was granted in the year 1965

where the aforesaid lands were shown as open space. On these counts, it was

urged that there was no reason to interfere with the order of remand.

As regards the adjudication by the Civil Court, it was submitted that in

the initial suit neither the Corporation nor the Trust was a party. In the subsequent

suit filed against the Trust, there was a limited issue with regard to the action of

the Trust of affixing its signboard on the property. The question with regard to the

layout map of 1941 or 1965 was not in issue and therefore the petitioner could not WP-712-2015(J) 8/13

claim that by virtue of the decree passed in the said suit, the matter could not be

re-opened. There was no bar in re-considering the matter with regard to grant of

building permit and commencement certificate since those issues were not decided

by the Civil Court. It was thus submitted that considering the documentary

material on record, no interference with the order of remand was called for.

Shri S.S.Ghate, learned Advocate appearing for the intervener submitted

that initially complaint against the activities of the petitioner had been made by the

office bearers of the Society. The initial order passed by the Corporation revoking

the building permission and commencement certificate was in the light of this

complaint. Though the Society was heard in the appeal filed under Section 47 of

the Act of 1966, it had not been impleaded as a respondent in the writ petition.

The Society was a necessary party since it was affected by the construction

activities on the land in question that was shown as open space in the layout map.

It was thus submitted that the applicant deserves to be heard in the present

proceedings.

6. We have the learned Advocates for the parties and we have gone

through the documents on record. At the outset, we may observe that the

application for intervention preferred by the Society deserves to be granted for the

reason that based on the complaint made by the Society, the Corporation took

cognizance of the matter and revoked the building permissions granted earlier.

The Society was respondent no.1 in the appeal preferred by the petitioner before WP-712-2015(J) 9/13

the State Government under Section 47 of the Act of 1966. It was heard prior to

passing of the impugned order. The Society thus is a necessary party in the present

proceedings and it ought to have been impleaded as respondent. Civil Application

No. 3101 of 2018 is thus allowed and the learned Advocate for the Society has also

been heard on merits.

While considering the rival submissions it would be necessary to keep in

mind the fact that what is under challenge is an order of remand passed in

proceedings under Section 47 of the Act of 1966. If it is found in the facts of the

case that the appellate Authority was justified in directing the Corporation to re-

consider the issue with regard to grant of building permission then the scope for

interference would be limited. If, however, it is found that the appellate Authority

had no jurisdiction to order remand or that in the light of settled issues there was

no reason whatsoever to remand the proceedings, a case for interference would be

made out. We have accordingly examined the material on record keeping this

aspect in mind.

7. The title of the petitioner with regard to half portion of Plot No.9 and

Plot No.10 is not in dispute in the light of the execution of registered sale deed

dated 11.12.1986 in his favour. The adjudication of R.C.S.No.1443/1987 would

bind only the defendant therein - Shri Vasant Anwane since he was restrained from

interfering with the possession of the petitioner over the land in question. The Civil

Court has relied upon the petitioner's sale deed dated 11.12.1986, which was at WP-712-2015(J) 10/13

Exhibit 35 therein. The possession of the petitioner over the said property was

accepted and a decree for perpetual injunction came to be passed. This decree thus

can be relied upon only to indicate the petitioner's better title than the defendant

therein. In R.C.S.No.1782 of 1993 that was filed against the Trust, the petitioner

challenged the action of the Trust of affixing its signboard on 31.01.1993 and

claiming itself to be the owner of the said property. The Civil Court again relied

upon the petitioner's sale deed dated 11.12.1986 which was at Exhibit 25. It was

the defence of the Trust that the said land was given to it free of cost by

Shri Ramaji Sawarkar on 28.07.1965 and thus it was the owner of the said land.

The Trust examined two witnesses but the Civil Court did not accept their version

since no copy of any such agreement was placed on record. It was thus held that

the defence raised by the Trust was untenable. Based on the aforesaid, it was held

that the Trust had no authority to affix its signboard on the land in question. The

suit was thus decreed and the Trust was directed to remove its signboard. From

the judgment of the trial Court that has now attained finality, it becomes clear that

the title of the petitioner based on sale deed dated 11.12.1986 stands proved

against the Trust. The Trust could not prove its defence that it had become the

owner of the said land since it was given to it free of cost by the petitioner's

vendor-Shri Ramaji Sawarkar on 28.07.1965. Except this aspect and the title of the

petitioner being proved, we do not find that this decision of the Civil Court can be

relied upon by the petitioner to urge that the matter pertaining to sanction of the

layout on 28.07.1965 cannot be re-opened. The only issue decided was with WP-712-2015(J) 11/13

regard to the petitioner's title and the defence of the Trust that it had title to the

said land since it was given to it free of cost was not proved. It is thus clear that

the Trust cannot claim any ownership to the land that has been purchased by the

petitioner on 11.12.1986.

8. The record indicates that the amalgamation of half portion of Plot No.9

and Plot No.10 was permitted on 26.08.2005, the building plan was sanctioned on

14.02.2006 and the revised building plan/commencement certificate was granted

on 07.12.2007. On the complaint made by the Society it was noticed by the

Corporation that the aforesaid land was to be shown as open in the layout.

Reference was made to the layout plan dated 28.07.1965 wherein the aforesaid

land was shown as open and reserved for playground. This led to cancellation of

the aforesaid permissions. In appeal the Hon'ble Minister considered the material

placed before him by the petitioner, the Municipal Commissioner and the Director

of Town Planning. He then opined that the matter with regard to grant of building

permit required re-consideration by the Corporation since Plot No.9 and Plot No.10

were shown to be open areas in the sanctioned layout plan of 28.07.1965.

Cognizance of the fact that the petitioner had succeeded in the Civil Court was also

taken and in the light of the sanctioned layout plan of 1965, the Municipal

Commissioner/Corporation was directed to take a fresh decision.

9. We find that there is no reason to interfere with the order of remand in

the light of the documents placed on record. The appellate Authority has merely WP-712-2015(J) 12/13

directed re-consideration of the matter in the light of ownership of the said land

coupled with the adjudication by the Civil Court. This direction cannot mean that

the issue of ownership of the petitioner is to be re-opened since registered sale

deed dated 11.12.1986 stands in his name. The aspect that is required to be gone

into by the Corporation is whether the petitioner is entitled for grant of building

permission on his land in the light of the fact that according to the Corporation in

the sanctioned layout plan dated 28.07.1965 both the plots have been shown as

open plots for garden purposes. The exercise to be undertaken by the Corporation

on remand would thus be limited to this aspect and there would be no question of

the petitioner's title being subjected to scrutiny by the Municipal Corporation

especially since it would have no jurisdiction to do so. It therefore cannot be said

that a direction for remand was not justified in these facts. Having prima facie

found that in the sanctioned layout plan dated 28.07.1965 the aforesaid land was

indicated as open, the appellate Authority in exercise of jurisdiction under Section

47 of the Act of 1966 was justified in directing the Corporation to have a fresh look

at all the documents. It cannot be lost sight of the fact that the Corporation is the

Planning Authority competent to grant building permission and hence the appellate

Authority would be justified in considering whether the applicable Rules and

Regulations in that regard are complied with. We also do not find any reason to

hold that on principles analogous to res judicata the matter cannot be re-examined.

As stated above, the title of the petitioner stands proved on the basis of his sale

deed dated 11.12.1986. The only issue to be considered is whether the building WP-712-2015(J) 13/13

permission is liable to be granted for undertaking activity on half portion of Plot

No.9 and Plot No.10. In this backdrop, the decisions relied upon by the learned

Senior Advocate for the petitioner do not assist his case. We therefore do not find

any scope to interfere with the order of remand in exercise of writ jurisdiction.

10. For aforesaid reasons, the writ petition stands dismissed. It is however

clarified that the Corporation on remand shall only consider the question whether

the petitioner is entitled to grant of building permission on half portion of Plot No.9

and Plot No.10 owned by him. The question of his title cannot be gone into by the

Corporation since it has no jurisdiction to do so. It is further clarified that this

Court has not expressed any opinion on the rival claims of the parties and the

Corporation is free to consider the same in accordance with law after giving due

opportunity to the parties. The entire exercise be completed within a period of

three months from today.

Rule is thus discharged leaving the parties to bear their own costs.

                         (MRS. VRUSHALI V. JOSHI, J.)                     (A.S.CHANDURKAR, J.)



                   Andurkar..




JAYANT S ANDURKAR

17.03.2023 18:52