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2018 DIGILAW 751 (BOM)

Yashodeep Gruha Nirman Sanstha Ltd, Nagpur v. Nagpur Improvement Trust, Nagpur

2018-03-14

ARUN D.UPADHYE, B.P.DHARMADHIKARI

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JUDGMENT B.P. Dharmadhikari, J -Heard Shri S.D. Chopde, learned counsel for the petitioner, Shri S.M. Puranik, learned counsel for respondent No. 1 and Shri P.P. Kothari, learned counsel for respondent No.2. 2. The petitioner - society seeks compliance with the Resolution passed by the Board of Trustees of Respondent No. 1 - Trust in its 479th Ordinary Meeting coupled with the letter dated 15.12.1972. Their case is, the land bearing Khasra No. 8/1, 8/2, 8/3 and 9, ad measuring 8.96 Acres of Mouza - Binakhi should be handed over to it for distributing plots laid in it to the members. The submission is, at present about 76 plots already laid in 4.48 Acres have been handed over to the society. The remaining plots are still with respondent No. 1. 3. This Court has on 26.04.2004, while issuing notice before admission, granted interim orders, thereby restraining respondent No. 1 - Nagpur Improvement Trust (NIT) from putting to auction, plot Nos. 115, 116, 117 and 118 in terms of public notice dated 27.04.2004. The petition has been amended thereafter to incorporate challenge to allotment of plot No. 114 to respondent No. 2 and execution of lease deed dated 04.06.2007 in her favour. The contention is, though said plot is shown in Khasra No. 176 of Mouza - Nari, it is in fact in the subject land i.e. land of the petitioner - society at Mouza - Binakhi. 4. Respondent No. 1 - NIT had submitted that plots comprised only in 5.96 Acres are to be made over to the petitioner society and, therefore, there is no question of handing over the entire land. Our attention is also invited to resolution of Board of Trustees dated 19.05.1981 in which after applying C.M. formula as modified, entitlement of the petitioner is restricted to only 4.48 Acres. It is submitted that the relationship between the parties is regulated by Resolution dated 19.05.1981. 5. Shri Kothari, learned counsel has submitted that though respondent No. 2 has not filed any reply, auction conducted is not of plot in Mouza - Binakhi but of Mouza - Nari. Lease deed is of Mouza - Nari. Respondent No. 2 is, therefore, not concerned with the controversy involved in present petition. 5. Shri Kothari, learned counsel has submitted that though respondent No. 2 has not filed any reply, auction conducted is not of plot in Mouza - Binakhi but of Mouza - Nari. Lease deed is of Mouza - Nari. Respondent No. 2 is, therefore, not concerned with the controversy involved in present petition. But without prejudice, he submits that at the most a disputed question about exact location or identity of plot purchased by respondent No. 2 may arise and it cannot be adjudicated upon in this petition. 6. The first document available on record is, the Resolution dated 22.01.1971. There, Board of Trustees referred to an informal meeting with the Chief Minister and then resolved that the societies should be alloted residential plots available in lands. This resolution thereafter is transformed into a letter dated 15.12.1972. This letter is written by the Executive Officer of Respondent No. 1 to the petitioner - society. After mentioning Khasra Nos. and total area of land, it also in subject records that this 8.96 Acres at Mouza - Binakhi was to be acquired for Wanjari Housing Accommodation Scheme. In opening para, it is mentioned that NIT has decided to allot residential plots available in the above mentioned land to the petitioner - society. In para (b) it is mentioned that the Trust would develop above mentioned land as per sanctioned scheme and allot "all the residential plots" comprised only in 5.96 Acres of land out of 8.96 Acres, to the petitioner - society in lease hold rights. This is qualified with clause which reads "keeping with the Trust all other remaining land meant for roads etc.". In paragraph (c), the petitioner - society is obliged to receive compensation from the Land Acquisition Officer and refund the same immediately to the Trust. This arrangement is seen as conferring upon Nagpur Improvement Trust the ownership to land. The expenditure of actual development of "entire area" comprised in this land is to be borne by the petitioner. Again while describing "entire area", the agreement stipulates that "entire area comprised in this land which includes the land, land for roads and residential area which comes to 8.96 Acres". 7. As against this letter and Resolution, Respondent No. 1 - NIT has come up with a later resolution dated 19.05.1981, passed by the Board of Trustees. Again while describing "entire area", the agreement stipulates that "entire area comprised in this land which includes the land, land for roads and residential area which comes to 8.96 Acres". 7. As against this letter and Resolution, Respondent No. 1 - NIT has come up with a later resolution dated 19.05.1981, passed by the Board of Trustees. It appears that in said meeting, some representation by the petitioner was under consideration. It stipulates that Khasra No. 8/1 and 8/3, area 4.48 Acres of Mouza - Binakhi was under Wanjari Housing Accommodation Scheme and as per modified C.M. formula, plots are to be distributed to the members of the petitioner - society. It then states that rate per square feet would be Rs.4/-only. 8. We do not see any inconsistency in this Resolution dated 19.05.1981 or earlier Resolution dated 22.01.1971 and letter dated 15.12.1972. The earlier Resolution or letter speak of two more khasra numbers viz., 8/2 and khasra No. 9. The Resolution dated 19.05.1981 looks into only two khasra numbers and its area, therefore, is less than total area of four khasra numbers. Hence, on the basis of this Resolution dated 19.05.1981, entitlement of the petitioner - society to allotment of plots in khasra No. 8/2 and khasra No. 9, is not wiped out. On the contrary, when the facts emerging from above three documents are marshalled, it becomes clear that residential plots on 8.96 Acres of Mouza - Binakhi are to be distributed to the members of the petitioner - society only. It appears that after making allowance for lands open to sky, public utility or public roads, plotable area may be 5.96 Acres only. Hence, in letter dated 15.12.1972, there is reference to 5.96 Acres of land. We have highlighted the relevant portion in paragraphs (b) and (c) of this letter. 9. During arguments, the learned counsel for the petitioner has submitted that even certain plots in other khasra numbers have been made available to members of petitioner - society. It is apparent that after lands became available for development under Wanjari Housing Accommodation Scheme, adjacent lands from other khasra numbers may have been clubbed along with four khasra numbers mentionedand then a joint development scheme and a lay out may have been planned. The petitioners have not placed before this Court any such plan. It is apparent that after lands became available for development under Wanjari Housing Accommodation Scheme, adjacent lands from other khasra numbers may have been clubbed along with four khasra numbers mentionedand then a joint development scheme and a lay out may have been planned. The petitioners have not placed before this Court any such plan. Similarly, respondent No. 1 - NIT has also not produced any such sanctioned lay out plan. From the various communications placed on record, it appears that total 76 plots have been made available to the petitioner - society. 10. Cause of action for filing this petition appears to be the decision by the Nagpur Improvement Trust to put to public auction, plot Nos. 115, 116, 117 and 118. Notice of auction is dated 27.04.2004 but auction could not be materialized. However, while describing these plot numbers, survey numbers given are Survey No. 173/3 and 176 of Mouza - Nari. The lands of the petitioner are at Mouza - Binakhi. This becomes relevant because plot alloted to respondent No. 2 is not from Mouza - Binakhi but from Mouza - Nari. 11. The petitioner has attempted to urge that the plot has been alloted to respondent No. 2 without following any transparent process of allotment and by private negotiations. 12. In present jurisdiction and matter, we are not inclined to go into this contention. However, the relevance of plot Nos. 115, 116, 117 and 118 in Survey Nos. 173/3 and 176 of Mouza - Nari in present matter needs to be evaluated by respondent No. 1 - NIT only. 13. In view of the discussion above, we find the petitioner - society entitled to all residential plots which can legally come up or which may have already been sanctioned in lay out in Khasra Nos. 8/1, 8/2, 8/3 and 9 of Mouza - Binakhi. The question whether plot allotted to respondent No. 2 is from these khasra numbers or then from some other khasra numbers or from other Mouza, is left open and can be looked into by respondent No. 1. 14. Accordingly, with these directions, we direct the petitioner - society to approach respondent No. 1 - Nagpur Improvement Trust for allotment of balance plots as per law in its favour. While undertaking this exercise, entitlement of respondent No. 2 to plot alloted to her, shall also be independently examined by respondent No. 1. 14. Accordingly, with these directions, we direct the petitioner - society to approach respondent No. 1 - Nagpur Improvement Trust for allotment of balance plots as per law in its favour. While undertaking this exercise, entitlement of respondent No. 2 to plot alloted to her, shall also be independently examined by respondent No. 1. We direct the petitioner as also respondent No. 2 to appear before respondent No. 1 - Nagpur Improvement Trust, Nagpur, on 10th April 2018 and to abide by its further instructions in the matter. The Nagpur Improvement Trust, Nagpur, shall attempt to complete verification and consequential exercise, within a period of three months thereafter. 15. Writ Petition is thus partly allowed and disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.