49-WP-9501-2017.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9501 OF 2017
Manas Co-Operative Housing Society
Ltd.
A CHS classified as a Housing Society,
registered under the provisions of the
Maharashtra CHS Act, 1960, having
registration No. TNA-HSG-103279, and
having its address at Mahatma Gandhi
Road, Naupada, Thane (W) - 400 602,
through its Chairman, Shri Umesh
Dattatraya Bagul ...Petitioner
Versus
1. The State of Maharashtra
Thru its Revenue and Forest Department
having office at Mantralaya, Mumbai - 40
032.
2. The Collector, Thane
having office at the Collector Office,
Thane.
3. The Tahasildar, Thane
4. The City Survey Officer, Thane.
5. The Municipal Corporation for the
City of Thane,
through its Commissioner, having address
at Panchpakahadi, Thane (W). ...Respondents
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Mr. Atul G. Damle, Senior Counsel i/by Mr. J.M. Joshi for the
Petitioner
Mr. A.P. Vanarase, AGP for Respondent nos. 1 to 4.
Mr. A.R. Pitale for Respondent no.5.
CORAM: SMT. VASANTI A NAIK AND
RIYAZ I. CHAGLA, JJ.
DATED : 21ST NOVEMBER 2017 O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. Rule. Rule made returnable forthwith. Heard by consent.
2. The Petitioner by the present Petition is seeking directions against Respondent No.2 for giving its consent / no objection required under Condition No. 7 of Development Permission dated 17th June 2017 granted by Respondent No.5 as requested by the Petitioner vide letter dated 19th June 2017. The Petitioner is further seeking the quashing and setting aside of communication dated 6th January 2017 issued by Respondent No.2 to the Petitioner society and for directions against the Respondent authorities to make / effect necessary changes in the property card register pertaining to the subject land in accordance with order dated 31st December 2015 of Respondent No.1. 2/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 :::
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3. The Petitioner is a Co-Operative Society who had applied for grant of land on leasehold basis for the purpose of construction of residential building for accommodating its members. Respondent No.2 in accordance with sanction accorded by Respondent No.1granted lease of land admeasuring 2,736 square yard out of survey No. 142 (CTS No. 118 / B), situated in village Naupada, Taluka and District Thane (for short "the subject land") to the Petitioner society for period of 30 years renewable at the option of Petitioner society for two like periods and subject to term and conditions stipulated therein. The possession of the subject land was handed over to the Petitioner society upon payment of the lease amount on 26th August 1978 and possession receipt to that effect was also executed. The Additional Collector (Thane) had granted NA permission to the Petitioner society for construction of 42 tenements according to approved building plans and construction was completed in accordance thereof. The lease hold rights of the Petitioner society qua the subject land was converted into occupancy basis upon payment of occupancy price in accordance with prescribed procedure in 1984. A Public Interest Litigation (PIL) No. 11 of 2010 was filed by one Ms. Vrushali Kalal in this Court. The PIL had been filed by the Petitioner in view of the complaints in respect of deficiency in diet provided for mentally 3/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC ill persons placed in the Regional Mental Hospital (Thane) which was situated in Survey No. 118 / A which was adjoining the subject land which is in survey No. 118 / B. The Petitioner in the PIL had sought innocuous prayer for implementation of the provisions of the Mental Health Act, 1987 in Mental Hospital in the State of Maharashtra.
4. The Petitioner society on 29th June 2012 had carried the structural audit of the buildings and report had been received wherein it has been opined by the consultant that extensive repairs of the building were necessary and that the reconstruction of the buildings be carried out. The Petitioner society accordingly applied to Respondent No.2 on 9th October 2012 seeking permission for redevelopment. The Petitioner also requested Respondent No.2 to grant permission to load TDR as also permission to permit the commercial user or some portion of the existing area. The Petitioner society appears to have been aggrieved with regard to the property card of the subject land which did not reflect the subsequent changes in the status of the Petitioner society which had been granted occupancy rights in respect of the subject land. The Petitioner society applied to the authorities to do the needful. On 31st December 2015, the 4/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC Respondent No.1 issued an order whereby the proposal of the Petitioner society with respect to change in the property card of the subject land and the redevelopment / use of the TDR proposal as well as the permission to permit the commercial user to the extent of 15% of the existing area came to be sanctioned. This was subject to the terms and conditions mentioned in the order which include that Respondent No.2 should confirm whether the Petitioner society had paid occupancy price directed to be paid vide order dated 19th August 1983. In the PIL, an order came to be passed by this Court on 12th August 2015, directing the State Government and Collector, Thane that there shall not be further allotment of land in Survey No. 118/A to any third party under any condition. This Court had directed the State Government and Collector, Thane to take steps to remove the encroachment on 10 Acres of the land and the steps ought to be intimated to this Court before taking action. The Petitioner society addressed a letter to the Respondent No.2 on 11th January 2016, requesting for action to be taken on the basis of the order dated 31st December 2015. The Petitioner society also requested the Inspector Land records, Thane to update the property card of the subject land in accordance with order dated 31st December 2015. Since no action was taken by Respondent No.2, the Petitioner society 5/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC addressed a letter to Respondent No.2 on 1st December 2016 pointing out that the land in issue in the PIL is survey No. 118/A, whereas the subject land on which the Petitioner society premises is situated is survey No. 118/B. The Petitioner society clarified that it had nothing to do with the land survey No. 118/A. The Petitioner society requested Respondent No.2 to effect property changes in the property card pertaining to the subject land and informed the Respondent No.2 that action was required to be taken for redevelopment of the society buildings as they were in very hazardous condition. On 6th January 2017, Respondent No.2 addressed a letter wherein the order dated 12th August 2015 passed by this Court in PIL was referred to and it was stated that in view of the said order, there is a remark inserted in the property card pertaining to the land which is the subject matter of the said PIL to the effect that no third party interest shall be created. The Petitioner was thus informed that no further orders had been passed in the PIL since then and hence no action in accordance with order dated 31st December 2015 can be taken. The Petitioner society submitted its plans for sanction to the Respondent No.2 Corporation on 22nd February 2017. On 17th June 2017, the plans were sanctioned and Development Permission was granted to the Petitioner society. As per Condition 6/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC No. 7 of the Development Permission, prior to obtaining commencement certificate, no objection from the Collector was necessary. The Petitioner society applied to Respondent No.2 vide letter dated 19th June, 2017 along with the copy of the Development Permission dated 17th June 2017 which was enclosed and requested Respondent No.2 to grant no-objection as expeditiously as possible. Respondent No.2 has not replied to the said letter dated 19th June 2017 nor given its no objection as prayed for. Hence the present Petition.
5. Mr. Atul Damle, the learned Senior Counsel appearing for the Petitioner has submitted that although the plans for redevelopment were submitted by the Petitioner society on 22nd February 2017 and that sanction and Development Permission was granted to the Petitioner society on 17th June 2017, the Respondent No.2 had failed to give its no-objection. Hence the Petitioner society could not commence redevelopment on account of the no-objection being necessary from Respondent No.2 under Condition No.7 of the Development Permission, prior to obtaining the Commencement Certificate. It is submitted that the only reason for non-grant of no objection by Respondent No.2 was the order dated 12th August 2015 having been passed in the said PIL 7/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC and that as per the said order it was directed that there shall be no further allotment of the subject land therein to any third party under any condition. The Respondent No.2 had erroneously relied upon the said order when it was clear that the subject land in the said PIL is Survey No. 118/A, whereas the subject land on which the Petitioner society premises is situated is survey No. 118/B. The subject land is not forming a part of said PIL and hence Respondent No.2 was obliged to grant the no objection to the Petitioner society. Mr. Damle has submitted that the Petitioner society buildings are in dilapidated condition and requires redevelopment to be carried out immediately. He has submitted that necessary orders be passed by this Court directing Respondent No.2 to grant consent / no-objection as required vide Condition No. 7 of Development Permission dated 17th June 2017 granted by Respondent No.5.
6. The learned Assistant Government Pleader appearing for the Respondent Nos. 1 to 4 has supported the communication dated 6th January 2017 by placing reliance upon the order dated 12th August 2015 passed by this Court in the said PIL. 8/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 :::
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7. We have perused the PIL filed in this Court and the said order passed therein. We find that the PIL only contains the innocuous prayer that direction be issued by this Court for implementation of the provisions of the Mental Health Act, 1987 in the mental hospitals in the State of Maharashtra as there had been complaints of deficiencies in diet provided for mentally ill persons placed in the Regional Mental Hospital. We have also noticed that the order dated 12th August 2015, is in relation to a land bearing separate Survey No. 118/A where the mental hospital is situated and that the directions against the State of Maharashtra and Collector, Thane for no further allotment of that land to any third party under any condition has no connection with the subject land which is situated in survey No. 118/B. We are of the view that the Respondent No.2 has erroneously construed the said order in not granting the no-objection to the Petitioner for the redevelopment of the Petitioner Society buildings although the Development Permission dated 17th June 2017 has been granted by Respondent No.5. We find that there is no explanation on the part of the learned Assistant Government Pleader appearing for the Respondent No.2 as to why the no-objection had till date not been granted to the Petitioner society other than relying upon the 9/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 ::: 49-WP-9501-2017.DOC order dated 12th August 2015. We are therefore, of the view that the Petition is liable to be allowed in the circumstances above.
8. We accordingly pass the following order:-
(a) The Respondent No.2 is directed to give its consent / no objection required under Condition No. 7 of the Development Permission dated 17th June 2017 granted by Respondent No.5.
(b) The communication dated 6th January 2017 issued by Respondent No.2 to the Petitioner Society is hereby quashed and set aside and we direct the Respondent authorities to make / effect the necessary changes in the property card register pertaining to the subject land, in accordance with order dated 31st December 2015 issued by Respondent No.1.
(c) Rule is made absolute in the above terms with no order as to costs.
( RIYAZ I. CHAGLA J. ) ( SMT. VASANTI A NAIK, J. ) 10/10 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:20:29 :::