Utkarsha Gruha Nirman ... vs State Of Maharashtra And Ors.
2007 Latest Caselaw 637 Bom

JUDGMENT

Naresh H. Patil, J.

1. Heard counsel appearing for the parties.

2. By an order, dated 30-8-2006, parties were put to notice that the petition would be heard finally at the stage of admission. Rule, returnable forthwith.

3. This is the case to demonstrate as to how owners of land face numerous difficulties to develop their own properties.

4. The petitioner is a Housing Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960 (for short "the Act of 1960") viz. Utkarsha Gruha Nirman Co-operative Society Ltd., Nakshatrawadi, at Aurangabad. According to petitioner, it was registered on 1-3-1983. The petitioner filed proposal for grant of Non-Agriculture (for short "N.A.") permission to develop the property in Block No. 5 of Nakshatrawadi, at Aurangabad town, in the year 1982. A fresh proposal was filed in the month of July, 2002 in the Collectorate, Aurangabad.

5. According to petitioner, there are in all 81 members of the petitioner society. The Marathwada Development Corporation granted loan facility to the employees so as to enable them to construct their houses. The employees purchased the land Block No. 5, admeasuring 12 acres and 13 gunthas. Much correspondence took place between different departments and the petitioner in relation to sanction of permission for developing the subject-property as Non Agriculture.

6. We need not trace out the details since the registration of society for the purpose of deciding this petition. The petitioner's grievance is that for want of "No Objection Certificate" from Town Planning Department of Aurangabad Municipal Corporation (for short "Municipal Corporation"), the file for grant of N.A. permission regarding the subject-land is still pending with the Collectorate, Aurangabad.

7. The petitioner has placed on record number of documents demonstrating that the society had taken every effort to push its case for getting N.A. permission to develop the subject-property. According to learned Counsel for petitioner, other formalities are being complete, the issue is pending for want of "No Objection Certificate" from Town Planning Department of Municipal Corporation.

8. The respondents No. 2 and 3 filed affidavit-in-reply. The Assistant Director of Town Planning, Aurangabad, respondent No. 3, had sworn the affidavit filed on 16th October, 2006. It is contended by deponent that the land admeasuring 5000 square metres to the east of the existing booster station belonging to the petitioner society is required by Municipal Corporation for public purpose i.e. for new booster station of the proposed Rs. 67 crores new water supply project for Aurangabad city. The deponent states that this area of land shall be acquired by the Municipal Corporation from petitioner society at the prevailing market rates. In paragraph 3, it is stated that, it has been decided that in order to make up for the short fall in view of above acquisition of land, the other land of petitioner society admeasuring 7907 square metres be deleted from the no-development zone and converted into residential zone by following the procedure in accordance with Section 37 and other provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short "M.R.T.P. Act").

9. On behalf of respondents No. 4 and 5, the Deputy Director of Town Planning, Aurangabad has also filed affidavit-in-reply. A copy of development plan of the said land is also placed on record by respondents.

10. From the material placed on record, it is clear that the petitioner wants to develop their property which is shown in the residential zone. Some part of the subject-property was acquired for pump house, for which the petitioner has already received compensation and the petitioner has no grievance about the same.

11. The learned Counsel Shri Sharma for Municipal Corporation placed on record a communication made by Assistant Director of Town Planning, Municipal Corporation, dated 30th May, 2007 addressed to the counsel, wherein the view of the administration is reflected to the effect that the Corporation does not require the land for establishing booster pump and such a proposal is being withdrawn but the issue would be placed before the General Body for consideration. This was informed in response to directions issued by this Court to the Commissioner, Municipal Corporation, on 3-4-2007, who was directed to take effective steps in arriving at final decision regarding sanctioning of the lay out plan submitted by petitioner society, by the end of April, 2007 and was further directed to submit report to this Court accordingly. We do not find any report submitted by the Commissioner on record but instead a communication made by Assistant Director of Town Planning to the counsel of Municipal Corporation is placed on record. We do not know the reason as to why the Commissioner, Aurangabad Municipal Corporation, did not place any report in response to the order passed by this Court.

12. After perusal of the record placed before us, we find that the subject-land is not reserved in any of the development plans or any plan prepared by the Municipal Corporation. The administration of the Corporation had also made its stand clear that the said land is not required for establishing booster pump.

13. In this petition notice was issued to respondents by an order, dated 23-11-2005. On the request of counsel for respondents, time was granted on 9-3-2006 to file reply. On the request of Corporation, further time was granted on 14-6-2006. On 30-8-2006, the Corporation sought time of three weeks for filing reply, which was granted. The Court ordered that parties are put to notice that the petition would be heard finally at the stage of admission. On 20th September, 2006 the counsel for Municipal Corporation again sought time to file affidavit-in-reply. The Court passed following order:

1. Shri Sharma, learned Advocate appearing for respondent No. 2 seeks time to file affidavit in reply.

2. The order sheet reveals that several chances have been granted to respondent No. 2 for filing affidavit in reply but no affidavit in reply has been filed. Shri Sharma states that officer of respondent No. 2 is present in the Court along with file to instruct him and therefore, he wants time.

3. We deprecate this practice of respondent No. 2 in not instructing the counsel well in time. Since request is made for filing affidavit in reply, we grant time to file affidavit in reply subject to payment of costs of Rs. 500/-.

14. On 4th October, 2006 counsel for Corporation, Shri Vijay Sharma, sought adjournment, which was granted subject to cost of Rs. 1,000/-. By an order, dated 18-10-2006, the Director, Regional Town Planning, Pune and Principal Secretary, Urban Development, Government of Maharashtra were permitted to be added as party respondents and notices were issued to them. By an order, dated 6-3-2007, this Court directed Corporation to disclose its stand and take decision on the issue within a stipulated time-frame. On that day, time was sought for taking instructions by counsel for Corporation, which was granted. On 16-3-2007, matter was adjourned as it was stated by counsel for Corporation that the issue would be kept before the General Body of Corporation. On 3-4-2007, Shri Sharma stated that the issue remained inconclusive and final decision would be taken by the end of April, 2007. This Court directed Commissioner, Municipal Corporation, to take effective steps in arriving at final decision regarding sanctioning of layout plan of subject-land by the end of April, 2007 and submit report to this Court accordingly. On 3-5-2007, Shri Sharma counsel for Corporation, stated that he had not received any instructions pursuant to the order passed by this Court and sought adjournment, which was granted. On 3-5-2007 itself, the counsel for Corporation placed on record a communication received from Town Planning Department, which was taken on record and marked as Exh. X. The counsel further stated that the General Body meeting is likely to be held in the month of May, 2007 and, therefore, matter was adjourned to 11-6-2007. The counsel for Corporation was absent on 22-6-2007. Therefore, the matter was kept on 25-6-2007. At the request of counsel for Corporation, matter was again adjourned to next day i.e. 26-6-2007 and as counsel was unable to disclose the outcome of General Body meeting, there was no other alternative than to hear the matter finally.

15. The manner in which the respondent Municipal Corporation has responded in this petition to the grievance made by petitioner, is not satisfying and convincing. We are not made aware as to what exactly was the difficulty of Corporation in not deciding the issue finally.

16. In view of the fact that the petitioner's property being in the residential zone and not subjected to any reservation under the development plan, we do not find any justifiable reason on the part of Corporation, more particularly, the Town Planning Department of the Corporation, to sit over the file for number of years without taking effective and substantial steps on the request of petitioner seeking "No Objection Certificate" which would facilitate the petitioner to secure N.A. permission from Collectorate, Aurangabad.

17. The counsel for petitioner states that rest of the formalities regarding seeking N.A. permission from Collectorate, Aurangabad have been completed by petitioner and it is only for want of "No Objection Certificate" from Corporation, the petitioner is unable to get N.A. permission and develop the subject-property for constructing their residential houses.

18. We find sufficient force in the submission advanced by counsel for petitioner. Instead of dilating much into the reasons in not issuing "No Objection Certificate" by the Corporation in favour of petitioner, suffice it would be that suitable directions are issued to Municipal Corporation and its authorities to issue necessary certificate and pass necessary orders on the pending file/proposal of petitioner.

19. In this view of the matter, we are inclined to allow the petition and pass following order:

(1) The respondent No. 2 - Municipal Corporation, Aurangabad and respondent No. 3 - Assistant Director, Town Planning, Municipal Corporation, Aurangabad are directed to issue "No Objection Certificate" to the petitioner for the purposes of claiming N.A. permission from Collectorate, Aurangabad.

(2) The respondents No. 2 and 3 are further directed to grant sanction tentatively to the layout plan submitted by petitioner concerning the land Block No. 5 of village Nakshatrawadi, Aurangabad.

(3) The respondents No. 2 and 3 shall comply with the directions of this Court within four weeks from the date of receipt of order of this Court.

(4) The respondent No. 1 - Collector, Aurangabad is directed to process the application of petitioner for grant of N.A. permission after receipt of "No Objection Certificate" from Municipal Corporation, Aurangabad, expeditiously.

(5) The Collector, Aurangabad is directed to pass necessary orders in accordance with law on the application and proposal of petitioner within three months from the date of receipt of "No Objection Certificate" from Municipal Corporation, Aurangabad.

(6) The Municipal Corporation, Aurangabad shall pay costs of Rs. Five Thousand to petitioner.

Rule made absolute in the above terms.