Writ Petition No.5357 of 2012

14th October, 2014.

Petitioner Counsel: Mr A.P. WACHASUNDER
Respondent Counsel: Mr R.O. CHABRA, Mr S.Y. DEOPUJARI, Mr P.P. KOTHARI

Cases Cited:
Friends Colony Development Committee Vs. State of Orissa, AIR 2005 SC 1 : (2004) 8 SCC 733 [Para 10]

JUDGMENT

JUDGMENT :- The petitioner has prayed for to quash and set aside Order No. 657 dated 08-05-2009 passed by the Chairman, Nagpur Improvement Trust, Nagpur (NIT) and order dated 14-09-2009 passed by the NITrespondent no. 1 under Sections 3 and 4 of the Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 as wholly without jurisdiction and contrary to the principles of natural justice and for issuance of the direction to respondent no. 1 to call upon respondent no. 3 restraining the enforcement of the said order.

2. Facts stated are that the petitioner came across the advertisement issued by respondent no. 2 in the year 1990 for sale of the plots at Khasra no. 83/1, PH No 44 Ward No. 15 situated at Mauza Somalwada, Nagpur. The petitioner purchased Plot No. 2, area 464.25 Sq. Meters (5000 Sq. Feet) out of total 104 plots layout for the consideration of Rs. 7500/- vide registered Sale Deed dated 26-09-1990 from respondent no. 2. The Government of Maharashtra enacted the Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 (briefly called as the "Gunthewari Act") which came into force from 13-08-2001. Respondent No. 1 NIT being Planning Authority under Section 2 (1) (c), (iv) is required to consider the application of the plot holder for regularisation of the Gunthewari development made within the period of six months or within the extended period if any from the date of the coming into force of the Gunthewari Act. The Planning Authority is required to scrutinise the case for fulfilment of the stipulated requirements under S. 4 (2). Consequences of the regularisation are provided under Section 5 of the Act. Planning Authority is required to exercise the control over the Gunthewari developments. If it is found that the Gunthewari development has not been regularised under Section 4 (1 ) of the Act issuance of the notice is required to the plot holder after giving an opportunity to apply for regularisation of the unauthorised development within one month. It is provided that if the plot holder fails to apply for regularisation under Section 4 (1) and (2) of the Act, Planning Authority shall demolish the unauthorised construction over the plot. According to the petitioner, the applications beyond the stipulated date i. e. 1402- 2002 were liable to be rejected as time barred. Petitioner had visited Nagpur on 22-10-2012 and was astonished to see the illegal activity on the plot purchased by her. The petitioner had filed the complaint at Sonegaon Police station and instructed her advocate to issue legal notice. Accordingly, on 25-10-2012 notice was issued to the respondents. The Petitioner refers to suit no. 1576 of 1985 brought by Shri Madhukar Shamrao Menghare (Vendor of respondent no 2 Society in Sale Deed dated 14-06-1985) for partition and separate possession against his father Shamrao which was decreed by learned Civil Judge S.D. Nagpur. The decree was sought to be executed in the execution proceeding being R.D. No. 87 of 1992 by Madhukar Shamrao. The decree was partly executed. First Appeal No 52 of 1992 was preferred by Shri Shamrao Menghare which was dismissed. Second Appeal No. 166 of 1999 filed by Shri Shamrao was also dismissed. Thus, the judgement and decree dated 26-11-1991 passed by the Civil Judge, Senior Division, Nagpur became final. According to the petitioner, she had under the acknowledgement and advise note dated 18-07-2002 deposited the sum of Rs.1000/- with respondent no.1 NIT for seeking regularisation. It is contended that 60 plot holders out of 104 plot owners moved learned CJSD, Nagpur by filing Civil Suit No. 1539 of 2002 praying for declaration and injunction against Madhukar Shamrao that various sale deeds executed by the Society (respondent no 2) during the period 1989-90 in their favour would remain unaffected by the decree dated 26-11-1991 as there was no prayer to set aside the sale deeds executed by the Society in their favour. Special Civil Suit No. 1000 of 2003 is still pending in the court of CJSD at Nagpur. Respondent no 3 herein was impleaded as defendant no 14 in that suit pursuant to the amendment sought. Madhukar-decree holder in Civil Suit No 1576 of 1985 brought Writ Petition No. 5074 of 2006 in this Court. By order dated 12-10-2006 it was allowed to be withdrawn with liberty for Madhukar to make an application for regularisation of the lay out to be considered by the Planning Authority. According to the petitioner, she came to know on inquiry that plot no. 89 of one Mr. Deo was regularised. It is contended that the remedy by way of civil suit is not available to the petitioner as it is barred in view of Sections 16 and 18 of the Gunthewari Act and, therefore, this Petition is filed.

3. Contest is between the petitioner on one hand and respondents no.1 and 3 on the other. Absence of legal right of respondent no. 2 Society in connection with the disputed plot of land appeared clear on the basis of the legal proceedings decided.

4. Petitioner contended that impugned order dated 14-09-2009 is contrary to the scheme and objects of the Gunthewari Act and respondent no. 3 has no right to act upon the impugned order. Petitioner contended that on application by respondent no.2, respondent no 1 has already regularised 104 plots on 24-06-2005. Therefore, question of considering the application by respondent no 3 by the impugned order did not arise. The petitioner contended that respondent no 1 as Planning Authority ought to act by issuing notice under Section 7(1) of the Gunthewari Act to take action of demolishing the unauthorised construction on the plot of petitioner commenced by respondent no. 3. The contention of the petitioner is that she was not given any opportunity of hearing before the impugned order granting permission to respondent no. 3 was passed. It is contended that the action on the part of respondent no 1 is void ab initio and respondent no 3 has no right to enter upon the land belonging to the petitioner and to construct thereupon, according to law.

5. It is contended on behalf of respondent no. 1 that the disputed questions of fact as to the title etc. are not to be decided in exercise of the extraordinary writ jurisdiction. The petitioner has no right to pray for the regularisation of the plot allegedly purchased by her as Madhukar Mendhare had preferred Writ Petition No. 5014 of 2006 against NIT and respondent no. 2 Society which was disposed of when NIT made a statement to consider the objection in the form of representation from Shri Madhukar Mendhare, if made within six weeks. Name of respondent no 2 was deleted and earlier regularisations in favour of the respondent no. 2 were cancelled. Writ Petition No. 4399 of 2010 preferred by the plot holders was dismissed. When Gunthewari Act came into force, the petitioner was neither legal owner nor in the actual physical possession of the plot concerned allegedly purchased by her. In Regular Civil Suit No. 1576 of 1985 decided on 26-11-1991 in favour of Shri Madhukar Shamrao Menghare it was declared that he was having onefourth share as owner of the lay out in question. The challenge to the decree was by Regular Civil Appeal No. 52 of 1992 filed on behalf of the father of the petitioner which was dismissed by the District Judge, Nagpur on 07-01-1999. Second Appeal filed by respondent no 2 Society through Secretary Shri Gopal Sathavane bearing no 166 of 1999 was also dismissed. Petitioner, it is alleged, has suppressed the material fact that Secretary of respondent no 2 Society was party to the all the above proceedings. The decree passed in the trial court was confirmed and became final. Petitioner has no locus standi to raise question again about the regularisation of the suit plot and, therefore, the petition deserve to be dismissed.

6. According to the petitioner, there was delay due to the fact that the Secretary of respondent no 2 Society had assured her that they would keep her informed of any development taking place but he did not kept his promise. Hence, delay for about three years was caused from 2009 to 2012 .

7. On behalf of respondent no 3 it is argued that the petitioner allegedly purchased the plot in question under the registered Sale deed from respondent no. 2Society unlawfully during the lis pendence and while interim injunction order was operating in the suit filed by Shri Madhukar Menghare against his father Shamrao in the year 1985. Therefore, sale deed of the petitioner has no sanctity in the eye of law. Decree for partition was already executed and the name of Madhukar Menghare was mutated in property records to the extent of his share. The said land was duly developed and transferred by Madhukar during his lifetime including handing over the possession. The respondent alleged that the petitioner had approached in 2002 through Shri Narain Dawda and asked for some compensation on the ground that petitioner lost money as she was cheated by the Society. Petitioner had also approached through Shri Ramesbhai Mehta in the year 2006 and through Advocate Shri Anirudhha Choube in the year 2008. But when petitioner was told that she was not entitled to claim any amount as she has no right, title or interest in the suit plot and that she may claim compensation from the Society from whom she allegedly purchased the suit plot and which Society, according to the petitioner, deceived her. Regular Civil Suit No. 1000 of 2003 was filed by 59 alleged plot holders, having claimed that they have purchased plots from the same society i. e. Amarsingh Grihanirman Sahakari Sanstha which was dismissed by the court on 22-10-2012. Within two days thereof the petitioner chose to issue notice to respondent no. 3.

8. We have considered the facts stated on affidavits and submissions advanced before us. The principle underlying Section 52 of the Transfer of Property Act is certain and well defined. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right to an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld as valid in regard to the transferred property, the transferee's title will not be affected. But if the title of the pendente lite transferor is recognized or accepted valid only in regard to a part of the transferred property, then the transferee's title will be protected only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted entirely to some other party or parties to the suit or if the transferor is held to have no right or title to convey that property, the transferee will not have any title to the property. Petitioner admitted that her sale deed was executed during the pendency of the partition suit and the suit was decided. Her sale deed was subject to the final decision in the partition suit and she is not entitled to claim otherwise on the basis of that sale deed subjected to the doctrine of lis pendense as mentioned above.

9. When the civil dispute as to identity and situation of the plot appears pending, the NIT as planning authority was justified not to consider the plea for regularisation made by the plotholder when it found that the land khasra no 83/1 situated at mouza Somalwada having the area of 3.32 HR was partitioned in which H0.83 R was allotted to the share of Madhukar Shamrao Mendhare. Respondent no. 2 Society had no answer to this fact during hearing before the NIT. Before passing the impugned orders, the NIT appears to have examined the facts as brought to its notice on the basis of the measurements carried out, mutation entries in revenue record, disputes pending and decided between the parties concerned. NIT took precaution and made it clear that the regularisation of plots no. 1 to 5 under the Gunthewari Act in respect of the limited area of H .083 R (Mendhare Layout) was subject to the undertaking as required by the Planning Authority to be filed by the parties concerned that they will settle their pending dispute in the court or by themselves amicably out of the court. Thus we do not find any serious infirmity in the impugned orders of the Planning Authority.

10. In Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733= AIR 2005 SC 1, the Supreme Court emphasised the need of planned development of the cities in the following words:

"In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."

11. For the petitionertransferee whose title got clouded or defeated as a result of absence of valid title of her vendor to the plot in question due to earlier decisions by the various courts in respect of the suit lay out, has alternate remedy to claim compensation, damages etc. or such other remedy as may be available in law. Disputed facts can not be decided in writ petition particularly when fullfledged trial in a civil suit is required to record entire evidence that may be led by the parties so as to enable the parties to invite decision of the competent civil court on merits. The suit heard on merits would result in a decree which is binding between the parties on attaining finality. We are not impressed by the submission that there is no such alternative remedy available for the petitioner in respect of the plot allegedly purchased by her from respondent no 2 Society. In the facts and circumstances pleaded therefore, we do not find any compelling ground to exercise extraordinary writ jurisdiction so as to interfere with impugned orders passed by the NIT as Planning Authority. Writ Petition therefore lacks merits and is dismissed with costs.

Petition dismissed.