The requirement of producing documentary proof of ownership or lawful possession of the land contained in clause (a) below sub-section (2) of section 4, is merely for the purposes of recording subjective satisfaction of the authority competent to grant regularization under section 3 of the said Act. There is no finality attached, as contemplated by section 18 of the said Act, to the question of title or of the possession gone into by the competent authority under section 3 or 4 of the said Act. The plenary jurisdiction of the Civil Court to decide the question of title and possession therefore, remains intact, and it is open for the Civil Court to find out whether, before granting of regularization, the property was owned and/or possessed by a person other than one at whose instance the regularization was granted under section 3 of the said Act. Such a suit cannot, therefore, be held to be barred under section 18 of the said Act. In the result, the petition is dismissed, holding that the jurisdiction of the Civil Court to entertain, try and decide a suit based on title and possession is not barred under section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001. {Para 9}
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.A. No. 30 of 2016
Decided On: 26.08.2016
Sunderlal Vs. Nagpur Improvement Trust and Ors.
Hon'ble Judges/Coram:
R.K. Deshpande, J.
Citation: MANU/MH/3000/2016,2017(4) ALLMR 378.
1. The trial Court rejected an application under Order VII, Rule 11(d) of the Code of Civil Procedure filed in Regular Civil Suit No. 185 of 2015 holding that in view of the bar created under section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 (for short "said Act"), the Civil Court has no jurisdiction to entertain, try and decide the suit challenging the order of regularization dated 12-12-2006 passed in exercise of power conferred under section 3 of the said Act. The lower Appellate Court has dismissed Regular Civil Appeal No. 263 of 2015 by its judgment and order dated 5-10-2015. Hence, this second appeal by the original plaintiff. On 27-7-2016 this Court passed an order as under:
"The substantial questions of law involved in this matter are as under:
1. Whether the Courts below could have rejected the plaint under Order VII, Rule 11(d) of the Code of Civil Procedure on the ground that such a suit was barred under section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 ?
2. Whether there can be a partial rejection of the plaint on the ground that some of the reliefs claimed are barred by the provisions of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 ?
The crucial aspect involved in the matter is regarding possession, which is purely a question of fact. Undisputedly, the appellants are the owners of the suit property. However, their possession over it remains a disputed question of fact, as the respondent No. 3 claims to be in possession of the property on the basis of the agreement of sale dated 25-7-1990 with the appellants, who are the owners of the suit property.
Admit.
Shri Kasat, the learned counsel for the respondent Nos. 1 and 2, and Shri Gharote, the learned counsel for the respondent No. 3, waive service of notice.
Put up this matter on 4-8-2016.
In view of the fact that the matter shall be heard on the next date, there is no possibility of any of the parties creating further complications in the matter to take the risk."
2. Shri Abhyankar, the learned counsel appearing for the appellants relying upon the decision of the learned Single Judge of this Court in case of Kishor s/o Ramalu @ Rambhau Telang v. Municipal Commissioner, Nagpur Municipal Corporation, Nagpur and others, reported in MANU/MH/0213/2015 : 2015 (4) Mh.L.J. 836, has urged that this Court has taken a view that the jurisdiction of the Civil Court is available for determining the question as to whether infirmity in the action impugned goes to the root of the proceedings, making it invalid or where the basic procedural requirements, which are vital in nature have not been followed. The judgment holds that the jurisdiction to that extent has been preserved. The decision is rendered on the provision of section 149 of the Maharashtra Regional and Town Planning Act, 1966 which is in substance similar to the provision of section 18 of the said Act.
3. Shri Abhyankar, has also relied upon the decision of the learned Single Judge of this Court in Mr. Hans Jurgen Buchmann v. Mrs. Leopoldina C Rodrigues and ors., reported in 2004 (5) Mh.L.J. 518 : 2004 (4) ALL MR 140, to urge that partial rejection of plaint is not permissible under Order VII, Rule 11 of the Code of Civil Procedure. He submits that even if it is to be held that reliefs claimed in terms of prayer clauses 1 and 2 of the suit are barred under section 18 of the said Act, the Civil Court will retain its jurisdiction to grant the other reliefs claimed in the plaint.
4. Perusal of the averments made in the plaint clearly indicate that the plaintiff is claiming ownership as well as possession over the suit property and it is alleged in paragraph 30 that the defendant No. 3-Society is neither the owner of the property nor is in possession of it and the regularization of land granted by the defendant Nos. 1 and 2 in favour of the defendant No. 3 is void ab initio and illegal. If the reliefs claimed in terms of prayer clauses 1 and 2 are held to be barred by section 18 of the said Act, then what appears from the entire averments made in the plaint is that the reliefs in terms of prayer clauses 3, 4 and 5 are consequential to grant of main reliefs in prayer clauses 1 and 2. In view of this, the substantial question of law framed at Sr. No. 2 will have to be answered holding that it does not arise for consideration for the reason that the plaint has to be rejected as a whole, if it is found to be barred by section 18 of the said Act.
5. In order to consider the question as to the bar to entertain a suit under section 18 of the said Act, the said provision needs to be considered, and it is reproduced below:
"18. Finality of orders --
Every order passed or direction issued by the State Government or order passed or notice issued by any Planning Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
In terms of the aforesaid provision, every order passed or direction issued by the State Government or order passed or notice issued by any Planning Authority under the said Act is treated as final and it cannot be questioned in any suit or other legal proceedings. It is not in dispute that the order dated 12-12-2006 granting regularization of layout was passed in exercise of the power conferred under section 3 of the said Act.
6. Section 3 of the said Act deals with the regularization of Gunthewari developments, and sub-section (2) therein being relevant, is reproduced below:
"3. Regularisation of Gunthewari developments. --
(1) ....
(2) The regularisation of any Gunthewari development shall be subject to the following general conditions, namely:--
(a) In the layout, ten percent of the plots shall vest in the Planning Authority, free of cost:
Provided that, such plots are unsold and unbuilt;
(b) Wherever necessary, open marginal spaces shall be surrendered, to achieve a road-width of nine meters or required Development Plan road width in the areas of a Municipal Corporation, as Special Planning Authority and a New Town Development Authority and four and half meters or required Development Plan road width in other areas:
(c) It shall not be the responsibility of the Planning Authority to provide alternate plots or otherwise compensate plot-holders displaced or affected by any development or rectification carried out in the process, or for the purpose of regularisation and upgradation of Gunthewari developments:
(d) The regularisation of any Gunthewari development shall not confer any title or claim in respect of the land or building not already enjoyed by its holder prior to such regularisation."
In terms of clause (d) under the proviso to sub-section (2) of section 3 of the said Act, it is made clear that the regularization of any Gunthewari development shall not confer any title or claim in respect of the land or building not already enjoyed by its holder prior to such regularization.
7. It is thus apparent that even if the regularization of Gunthewari developments under section 3 of the said Act is granted, that does not confer upon the holder of the land any title or claim in respect of the land or building not already enjoyed by him prior to such regularization. In view of this, merely because the regularization is granted under section 3 of the said Act, it does not follow that the holder of such land or building becomes the owner of such property.
8. My attention is invited to the provision of section 4 of the said Act, which is reproduced below:
"4. Procedure for regularisation. -- (1) The concerned plot-holder shall apply for regularisation of Gunthewari development within a period of six months from the date of the coming into force of this Act or such extended time as the Planning Authority may permit.
(2) The application shall be accompanied, inter alia, by, --
(a) documentary proof of ownership or lawful possession of the plot;
(b) existing layout plan;
(c) plan of existing construction on such plot;
(d) rectification plan;
(e) an undertaking by the applicant to rectify uncompoundable infringements;
(f) demand draft, drawn on any scheduled bank to cover the amount due as compounding fee and development charge.
(3) The Planning Authority shall scrutinise the case for fulfilment of the stipulated requirements laid down under sub-section (2), including proof of actual rectification of uncompoundable infringements, and thereafter, issue a certificate of regularisation, if satisfied on all these counts."
It is urged that the aforesaid provision deals with the procedure for regularization to be adopted under section 3 of the said Act upon producing the document proof of ownership or lawful possession of the plot. It is, therefore, urged that such an enquiry is deemed to have been made in respect of title and possession over the land in question while granting regularization.
9. The requirement of producing documentary proof of ownership or lawful possession of the land contained in clause (a) below sub-section (2) of section 4, is merely for the purposes of recording subjective satisfaction of the authority competent to grant regularization under section 3 of the said Act. There is no finality attached, as contemplated by section 18 of the said Act, to the question of title or of the possession gone into by the competent authority under section 3 or 4 of the said Act. The plenary jurisdiction of the Civil Court to decide the question of title and possession therefore, remains intact, and it is open for the Civil Court to find out whether, before granting of regularization, the property was owned and/or possessed by a person other than one at whose instance the regularization was granted under section 3 of the said Act. Such a suit cannot, therefore, be held to be barred under section 18 of the said Act. In the result, the petition is dismissed, holding that the jurisdiction of the Civil Court to entertain, try and decide a suit based on title and possession is not barred under section 18 of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001. No order as to costs.
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