IMPORTANT POINT
The court established that an interim order in a PIL does not apply if the property in question has been regularized and is not subject to the restrictions outlined in that order.

JUDGMENT/ORDER

Y.G.KHOBRAGADE, J. - Heard.

2. Rule. Rule made returnable forthwith, heard finally at the stage of admission by consent of the parties.

3. The challenge in the present petition is to the order/communication dtd. 30/9/2022 issued by respondent 2- Building Engineer (West), Nagpur Improvement Trust (for short, 'NIT'), whereby the respondents did not accord sanction to the residential house construction plan because of the operation of prohibitory order in Public Interest Litigation (PIL) 40/2013 passed by Co-ordinate Bench of this Court.

4. The facts of the present case lie in narrow compass. One Mr. Dashrath Balaji Kalambe had purchased the plot in question under Sale Deed dtd. 19/7/1991 from Paradise Co-operative Housing Society, Nagpur and subsequently the petitioners purchased the said plot No. 45, admeasuring 2000 sq. feets bearing Khasara Nos. 14, 16, 17/1, 18/1, 19/1.k, 19/2/d, 20/1?k, 20/1p and 20/1N, P. H. No. 44 of Mouza- Sonegaon, City Survey No. 11 and Sheet No. 300 situated near Lake, Sahakar Nagar, Sonegaon, Nagpur bearing Corporation House No. 3869/45 and Ward No. 75 within the limits of Nagpur Improvement Trust, Nagpur/NMRDA and Nagpur Municipal Corporation.

5. Accordingly, their names were mutated in the revenue record. On or about 30/4/2001, the Maharashtra Gunthewari Developments (Regulation, Upgradation and Control) Act, 2001 (for short, "Gunthewari Act") came into force. Ss. 3 and 4 of the Gunthewari Act provide regularization and development of plots. The said scheme was existing as on 1/1/2001. Accordingly, the predecessor-in-title of the petitioners submitted an application for regularization of plot in question under the said Act and respondentNagpur Improvement Trust (NIT) by communication dtd. 15/1/2005 and 16/6/2005 raised demand against the predecessor-in-title of the petitioners for regularization of the said plot. Upon compliance of all the requirements, on 9/6/2008 the respondent-NIT regularized the plot in question. Thereafter, on 6/5/2022, the petitioners purchased the plots in question from their predecessor-in-title and thereafter they submitted house construction plan for development with respondent authority on 20/7/2022, as per the provisions of the Maharashtra Regional Town Planning Act, 1966. Subsequently, vide communication dtd. 8/8/2022, the petitioners were called upon to meet certain compliance and also secured no-objection certificate and clearance certificate from the Competent Authority. However, on 30/9/2022, respondent 2 issued the impugned communication and declined to sanction the development plan on the ground of operation of the interim order in PIL 40/2013.

6. Learned counsel for the petitioners canvassed that the plot 45 situated in Paradise Co-operative Housing Society does not fall within the scope of the PIL because the plots in question is not situated in a mandatory open space of the Society, so also the petitioners are not intending to get regularized any unauthorized construction standing on land and it is also not reserved under the development plan for open space, garden or play-ground. Therefore, the order dtd. 21/1/2015 passed in PIL 40/2013 is not applicable to the facts and circumstance of the case. However, respondent 2 by the impugned order/communication dtd. 30/9/2022 declined to sanction the development plan therefore, the impugned order/communication is not sustainable in the eye of law and prayed for quashing the same.

7. The respondent Development Authority filed affidavit in response and resisted the claim of the petitioners. The learned counsel appearing for the respondents vehemently canvassed that PIL 40/2013 is pending before this Court and looking to the controversy involved in the said case and in pursuance of the interim order dtd. 21/1/2015 passed therein, even sanction of plot of single family dwelling unit cannot be considered. Therefore, respondent 2 passed the impugned order and refused to accord sanction to the construction plan of t