WRIT PETITION NO. 2130 OF 2008

26th July 2019

Petitioner Counsel: Shri M. G. Bhangde Shri M. P. Khajanchi
Respondent Counsel: Shri S. M. Puranik Shri Anand Parchure
Act Name:

Section :

Cases Cited :

JUDGEMENT

Sunil B. Shukre, J.

Heard Shri M.G. Bhangde, learned Senior Counsel for the petitioner, Shri S.M. Puranik, learned Counsel for respondent No.1 and Shri Anand Parchure, learned Counsel for respondent Nos.2 to 4.

2. In the light of the arguments canvassed before us and also the reply filed by respondent No.1 - Nagpur Improvement Trust ('NIT' for short) on 20/06/2008 and also it's additional reply dated 07/08/2008, we have examined various documents filed on record of the petition.

3. On perusal of these documents, prima facie, what emerges on record is that the contesting parties have been taking a stand at least on some occasions, that the property in question belongs to H.U.F. and also on some other occasions, a reverse stand is taken by respondent No.2 about the property being his own. The documents show that certain benefits on the basis of such stand taken by the contesting parties, have been obtained by respondent No.2 and also by the petitioner as well as respondent No.2 and his one more brother. There is a document available on record which shows that the Nagpur Municipal Corporation ('NMC' for short) has mutated it's record and shown the subject property as in the name of three brothers. Although, as submitted by the learned Counsel for respondent Nos.2, 3, & 4, the NMC, in a later inquiry, found that the mutation so carried out in the record of the NMC was incorrect. It is also the contention of respondent No.2 that the questions which emerge from this petition are disputed once and this is also the opinion of the various authorities and, therefore, the parties be relegated to the competent Civil Court and in fact the parties are already in the arbitration proceedings for resolution of their dispute. However, it is the contention of the learned Senior Counsel appearing for the petitioner that the endeavour of the petitioner in the present proceeding is not of seeking any adjudication from this court on the disputed questions of facts, but only to seek at the instance of this Court, a proper inquiry on the part of the NIT regarding the matter of issuance of 'no objection certificate' to respondent No.2 for transferring the disputed property to his sons, the respondent Nos.3 & 4 by way of a gift-deed. It is his submission that it was necessary on the part of the NIT to make a thorough inquiry and decide upon the question of issuance of 'no objection certificate', which it was not done so.

4. Having considered these submissions and also the documents placed on record, we find that a proper inquiry was necessary in the matter and as it has not been done by the NIT, the matter would have to be remanded back to the NIT for conducting a fresh inquiry and deciding upon the question regarding issuance of 'no objection certificate'. The reply of the NIT dated 20/06/2008 also shows that the objection taken by the petition in this regard is still pending with it. There is one more application which appears to be filed in 1976 regarding mutating in the record of the NIT and that application also appears to be pending with the NIT, as seen from it's additional reply dated 07/08/2008. The objection and this application, we are of the view, need to be decided by the NIT by conducting fresh inquiry in the matter and, therefore, we are of the further opinion that a case has been made out by the petitioner for remand of the matter back to the NIT.

5. About the quashing of 'no objection certificate' already issued by the NIT, we are of the considered opinion that as a registered gift-deed has already been executed and the parties are also in the arbitration, it would not be proper on the part of this Court to quash and set aside the 'no objection certificate' impugned in this petition and this Court would think it appropriate to leave the matter at the door of the NIT. In view of the above, the writ petition deserves to be partly allowed. Hence, the following order :

ORDER
i. The writ petition is partly allowed.
ii. The matter is remanded back to respondent No.1 – Nagpur Improvement Trust for deciding the objection taken by the petitioner and also the other applications, if any, pending with it after making proper inquiry in the matter and hearing the contesting parties within a period of three months from the date of appearance of the parties before it.
iii. The parties to appear before the Executive Officer of the Nagpur Improvement Trust on 7th of August, 2019.
iv. It is made clear that this Court has not decided anything on merits of the matter and the NIT is at liberty to take such decision as it deems fit in the matter, which may include the withdrawal and cancellation of the 'no objection certificate' already given.
v. Interim relief granted by this Court on 29th March, 2010 shall continue till the decision of the NIT.
vi. Rule is made absolute in the above terms with no order as to costs.