Bombay High Court
M/S. Sunny Buildtech Private ... vs State Of Maharashtra Through Its ... on 25 April, 2016
Bench: Ranjit More
WP 1241 OF 2015.doc
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1241 OF 2015
M/s Sunny Buildtech Private Limited ]
a Company incorporated under the ]
provisions of Companies Act, 1956 ]
Through its Director: ]
Mr. Rajeshkumar R. Lakhanpal ] ..Petitioner
age: 46 years, ]
having its office at ]
39, Arenja Corner, ig ]
Sector 17, Vashi, ]
Navi Mumbai 400 705 ]
V/s.
1. The State of Maharashtra ]
Through the Principal Secretary ]
Urban Development Department, ]
Mantralaya, Mumbai 400 032. ]
]
2. City & Industrial Development Corporation ]
of Maharashtra Ltd. (CIDCO) ]
A company incorporated under the ] .. Respondents
provisions of Companies Act, 1956 ]
Through its Managing Director, ]
having its office at ]
CIDCO Bhavan, CBD Belapur ]
Navi Mumbai ]
]
3. The Additional Collector and Chief Controller ]
Unauthorized Constructions CIDCO ]
having its office at ]
CIDCO Bhavan, CBD Belapur ]
Navi Mumbai ]
]
4. Chief Land & City Survey Officer ]
CIDCO, ]
1
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WP 1241 OF 2015.doc
having its office at ]
CIDCO Bhavan, CBD Belapur ]
Navi Mumbai ]
Mr. P. K. Dhakephalkar, Senior Advocate, I/by J.
G. Reddy, for the petitioner.
Mrs. M. P. Thakur, AGP, for the Respondent-
State.
Mr. A. M. Kulkarni, for respondent Nos. 2 to 4.
CORAM : RANJIT MORE &
ig DR. SHALINI PHANSALKAR-JOSHI, JJ.
CLOSED FOR ORDER : 15th APRIL, 2016.
JUDGMENT PRONOUNCED : 25th APRIL, 2016
JUDGMENT. : [PER : DR. SHALINI PHANSALKAR-JOSHI, J.].
1. Rule.
2. Rule made returnable forthwith.
3. With consent of the parties, heard finally at the stage of
admission.
4. By this petition filed under Article 226 of the Constitution of
India, petitioner seeks direction to the CIDCO Authorities to hand over to
him alternate plot of land in lieu of plot No.70 Sector 27 of Owe, Kharghar,
admeasuring 1100 sq. meters, under 12.5% scheme, in the same vicinity
and having similar locations, considering encroachment made on the said
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plot by one Mr. Keshav and Smt. Devkibai Kadu.
5. The facts of the petition are to the effect that respondent No.2
CIDCO, being the new town development authority, has acquired several
properties in the area of Navi Mumbai, for development purposes and in
lieu of the said acquisition, decided to give compensation to the persons
whose lands were acquired. Alongwith the monetary compensation to be
paid by CIDCO, to the affected persons, respondent No.1 Government of
Maharashtra also decided to allot 12.5% developed plots to the project
affected persons. The said scheme is commonly known as 12.5%
scheme of CIDCO.
6. The lands bearing survey Nos. 334/2 and 335/2 of village
Owe-Kharghar, admeasuring nearby 1 H. 27.9 R were belonging to one
Shri.Baburao Ganpat Kathkari and his family. Vide award No.250, the said
lands were acquired by CIDCO and in lieu thereof, Kathkari family was
held entitled for 1100 sq. meters developed plot under 12.5% scheme.
As per draw of lottery, Kathkari family was allotted plot No.70 in Sector 27,
Owe Kharghar under the scheme on 10.9.2005. Agreement to lease was
accordingly executed by CIDCO, in favour of Kathkari family on
12.10.2007. Due to financial problem, Kathkari family decided to hand
over the said plot to the petitioner and made application to CIDCO for
transfer. The said application was allowed and a tripartite agreement
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came to be executed on 18.3.2008 in between Kathkari family, CIDCO
and the petitioner. Accordingly the plot came to be transferred in the
name of petitioner by CIDCO and his name came to be included as
CIDCO's licencee on 27.3.2008.
7. Thereafter on 31.3.2008, petitioner pointed out to CIDCO that
the plot of land which is transferred in his favour as new licencee of
CIDCO is encroached by Shri.Keshav Kadu and his family. The CIDCO,
however, initially did not bother to take any action. Subsequently, on
26.5.2008, the Additional Collector and Chief Controller of Unauthorised
Construction directed the City Survey Officer to visit the site to find out
whether there was any encroachment. At that time it was confirmed that
Keshav Kadu had made encroachment on the plot of petitioner, while
constructing building on his own plot. Keshav Kadu then informed the
Managing Director, CIDCO that if such encroachment is noticed, CIDCO
can deduct the said area from his entitlement under 12.5% scheme.
8. On 27.6.2008, in view of complaint of petitioner, CIDCO
issued notice to Shri. Kadu under Section 53(1) of the MRTP Act,
directing him to remove unauthorized construction on the petitioner's plot.
Shri. Kadu then filed Regular Civil Suit No.198/2008, in the court of Civil
Judge J.D. Panvel and obtained order of stay to the said notice. In the
said suit, petitioner got himself impleaded as party and the suit is still
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pending.
9. On 3.3.2010, the petitioner requested CIDCO to allot him any
other alternate plot since encroachment made on his plot was very difficult
to be removed. Acceding to his request, on 11.3.2010, CIDCO decided to
allot him alternate plot bearing No.77, Sector 18 admeasuring 1100 sq.
meter. However, petitioner found that the alternate plot No.77 was not
having proper access and it was situate on 8 meter wide road. Therefore,
the petitioner was not in position to utilize entire F.S.I. of the said plot.
Hence petitioner requested CIDCO to allot him any other alternate plot,
preferably being plot No.6 in Sector 35.
10. The petitioner's request was accepted and on 10.5.2011,
office note was prepared by the office of CIDCO, wherein it was proposed
to allot any other alternate plot to the petitioner. Similar office notes were
prepared on 22.7.2011, 19.12.2011, 3.1.2012, 13.1.2012 and 10.2.2012.
However, as actual allotment of plot did not take place, the petitioner
made representations on 3.3.2012, 28.5.2014 and 5.8.2014. But it was of
no use.
11. The submission of learned counsel for petitioner is that
admittedly plot No.70 which was initially allotted to Kathkari family and
subsequently transferred in the name of petitioner is having encroachment
in the form of building constructed by the adjacent plot holder Keshav
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Kadu. It is difficult to remove the said encroachment in view of pending
suit in which relief of injunction is granted in favour of Shri.Keshav Kadu
restraining CIDCO from demolishing his construction till final disposal of
the suit. Hence it is submitted that the petitioner becomes entitled to get
alternate plot. It is submitted that the fact that the petitioner's plot is having
encroachment and he is entitled for alternate plot is also accepted by
CIDCO by taking steps of allotting him alternate plot No.77. Hence now
CIDCO cannot deny him the same benefit,as alternate plot No.77 is also
found to be not having proper access and its entire FSI cannot be utilized
as it is under road.
12. Further, it is submitted that as per the information gathered
by the petitioner, Plot No.18 admeasuring 1050 sq. meters situate at
Sector No.35(I) Owe Kharghar is vacant and the ready reckoner value of
the said plot is less than ready reckoner value of Plot No.70 allotted to the
petitioner. The allotment of the said plot to the petitioner will also not be in
breach of linkage policy of the CIDCO. Hence it is submitted that CIDCO
may be directed to allot this plot or even any other plot like plot No.4 and
5, to the petitioner within a period of four weeks from the date of the order.
13. It is further submission of learned counsel for the petitioner
that as one Mr. Gul Panjwani, who was similarly situated as the petitioner,
has been allotted alternate plot No.41, in Sector 18 in lieu of plot No.71 at
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Sector 27, the petitioner is also entitled to get similar relief which CIDCO
is avoiding to extend to him. Hence according to learned counsel for the
petitioner, this discriminatory action on the part of CIDCO is required to be
quashed and set aside by allotting him alternate suitable plot in the same
vicinity.
14. This petition came to be resisted by respondent Nos. 2, 3 and
4 by filing affidavit of one Mr. Vijay Singh Patil, who is working as Chief
Land and Survey Officer in CIDCO. It is submitted that at the time of
allotment of said plot to Kathkari family in the year 2007, plot was free
from any encroachment or unauthorized structure. The vacant
possession of the plot was handed over by CIDCO and accepted by
Kathkari family. Possession receipt dated 12.10.2007 is annexed to that
effect. It is further submitted that as per agreement of lease executed by
CIDCO with Kathkari, it was the responsibility of the allottee to fence the
said plot at his expenses within 2 months from the date of receiving
possession. It is submitted that as neither the petitioner nor his
predecessors have done so, CIDCO cannot be expected to allot an
alternate plot for their own fault. It is submitted that while executing
tripartite agreement dated 12.10.2007 also the petitioner did not make any
grievance about the alleged encroachment or unauthorised structure on
the said plot. Thus, it is clear that the petitioner had verified the vacant
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possession of the said plot and then only entered into agreement. It is
further submitted that after about 1 ½ month of the tripartite agreement,
petitioner has complained about unauthorised structure of Mr. Keshav
Kadu and in view thereof request was made by him to allot alternate plot.
Initially the request of the petitioner was considered by CIDCO and
petitioner was allotted alternate plot No.77. However, petitioner refused
the same alleging that there was no access and petitioner could not utilize
the entire F.S.I. Even then, CIDCO, as Planning Authority. will be taking
action against the unauthorized structure standing on the petitioner's plot.
A notice to that effect is already issued and a suit is pending. In view
thereof, it is submitted that the petitioner cannot be entitled to get any
alternate plot, particularly in the light of the latest policy decision taken by
CIDCO, vide resolution No.11152 dated 11.8.2014, not to allot such
alternate plots.
15. According to learned counsel for respondent CIDCO, in the
light of above fact situation, petitioner is not entitled to invoke writ
jurisdiction of this Court, as there is no fundamental or Constitutional right
in fvour of the petitioner to claim particular plot much less alternate plot as
may be suitable to the petitioner. The allotment of plots under 12.5%
scheme is an extra statutory compensation to the Project Affected
Persons over and above statutory compensation paid under the Land
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Acquisition Act. Hence the Project Affected Person cannot demand
allotment of particular plot under 12.5% scheme as per own choice. Any
such demand is not justified. The relations between the petitioner and
CIDCO are purely of contractual nature and governed by the agreement.
In case of breach of statutory obligation, the only remedy available is of
filing of suit and not writ jurisdiction. The reliance is placed by learned
counsel for the petitioner on the judgment of Division Bench of this Court
in Ashok Ganu Shelke -vs- State of Maharashtra and ors, in Writ
Petition No.2747 of 20905 dated 27.4.2006 to advance his submission
that the petitioner is not having any legal right or equity to stake any lawful
claim that a particular plot be allotted in place of plot already allotted.
16. Having heard learned counsel for the petitioner, learned AGP
for the State and learned counsel for CIDCO, and on perusal of the record
we deem it appropriate and just to grant and allow this petition for the
simple reason that it was the responsibility of the CIDCO to allot plot
which was free from encroachment. In this case though CIDCO states
that the plot, when allotted to Kathkari family was, free from encroachment
and it was demarcated by boundaries, there is no evidence to that effect
except for the possession receipt. The possession receipt also nowhere
mentions the date on which possession was handed over by visiting and
inspecting the plot. There is also nothing to show that the plot was actually
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demarcated.
17. The agreement to lease also does not reveal that vacant
possession of the plot was delivered to Kathkari family on 12.10.2007. It is
pertinent to note that immediately after tripartite agreement between the
petitioner, Kathkari family and CIDCO in the month of March, 2008, the
petitioner noticed encroachment on the said plot by adjoining plot holder
Shri. Kadu, who has already constructed building thereon. The fact that
there was encroachment on the petitioner's plot, is also not disputed by
the CIDCO. Regular Civil Suit No.198/08 filed by Kadu against the notice
issued to him under Section 53(1) of the MRTP Act by CIDCO, is pending
in the Court.
18. A copy of the order passed below Exh.5, an application for
interim relief filed therein by Keshav Kadu, is produced on record by the
petitioner which prove that Shri.Kadu, after obtaining permission for
construction from CIDCO, even prior to year 2008 he has made
construction of ground + 2 floors, the compound wall and the CIDCO was
not diligent enough to stop said illegal construction at the beginning. The
CIDCO also could not substantiate its stand in the said suit and as a
result, the relief of interim relief as claimed by Shri. Kadu was granted
and CIDCO, by order dated 5.3.12009 passed by Civil Judge J.D. Panvel,
in the said suit, is restrained from demolishing the said construction. Thus
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there is much substance in the contention of the petitioner that
encroachment on his plot No.70 is not easy to be removed.
19. As CIDCO itself found it difficult to remove encroachment on
the plot of petitioner, CIDCO decided to allot alternate plot to the
petitioner, bearing No.77, in Sector 18. This act of CIDCO of allotting
alternate plot No.77 to the petitioner, clearly goes to indicate that CIDCO
is not denying or disputing its liability to provide alternate plot to the
petitioner on account of the encroachment found on the plot allotted to
him. If the vacant possession of the plot was allotted by CIDCO, and it
was the responsibility of the allottee to fence the said plot, then CIDCO
would not have agreed to provide alternate plot No.77 to the petitioner. If
the said alternate plot No.77 is not suitable as it is not having proper
access and it is situate on 8 meter wide road, as a result of which
petitioner cannot utilize the entire FSI of that plot, it follows that the
petitioner becomes entitled to get another alternate plot. The five office
notes dated 22.7.2011, 19.12.2011, 3.1.2012, 13.1.2012 and 10.2.2012,
were prepared to that effect. Now by taking recourse to the recent policy
decision taken by CIDCO on 11.8.2015, CIDCO cannot deprive the
petitioner of the right vested in petitioner of getting alternate plot of land,
as the plot allotted to him is having encroachment thereon.
20. In this respect, it is also pertinent to note that in the affidavit
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filed by the Chief Officer of CIDCO, it is not denied that CIDCO has earlier
allotted alternate plot No.77 to the petitioner. In the affidavit there is also
no denial to the fact that one Shri.Gul Panjwani, who was similarly
situated as the petitioner, has been allotted alternate plot No.41 at Sector
18 in lieu of plot No.71 Sector No.27. Respondent CIDCO, therefore,
cannot give differential treatment to the petitioner, when it is not disputing
that there is encroachment on the plot of petitioner. It is also accepted that
it is their responsibility to remove the said encroachment and CIDCO has
assured to take steps for it. However, in view of the pending suit and
difficulty in removal of encroachment, if CIDCO cannot do so, then it
becomes the responsibility of CIDCO to ensure that the petitioner gets
alternate plot which can be suitably used by him for the purpose for which
it was allotted.
21. The fact that alternate plots are available for allotment in the
same linkage sector is not denied in the affidavit filed on behalf of CIDCO.
Learned counsel for the petitioner has made a statement to this Court on
7th April, 2016 that in the same locality in which plot No.70 allotted to the
petitioner is situated, there is plot No.18, situated at Sector No.35-I at
Owe/Kharghar, admeasuring 1050 sq. meters which is vacant and that
can be allotted to the petitioner as an alternate arrangement to the plot in
question. The area of the said plot No.18 is 1050 sq. meters which is less
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than plot No.70 allotted to the petitioner. The said plot is also in the same
linkage sector. Hence a specific direction was given by this Court to
CIDCO to consider this proposal. However, the affidavit filed by the
CIDCO on 15.4.2016 does not make any reference to the said proposal
nor it is stated that there is no such plot which can be allotted as alternate
arrangement to the petitioner. It is also not denied that plot No.18 is in the
same linkage sector. Mr. Kulkarni, learned counsel for CIDCO, however,
submitted that if Court decides to allot this plot to petitioner as an alternate
arrangement, then same may be allotted subject to same conditions on
which original plot was allotted.
22. As to the judgment of this Court in Ashok Ganu Shelke -vs-
State of Maharashtra and ors, in W. P. No.2747 of 2005, on which
reliance is placed, the petitioner therein was insisting for allotment of
alternate plot in the same village from which his lands were acquired and
therefore, Court held that CIDCO is justified in refusing his request
considering that it was not possible and feasible to allot lands within the
same village considering the area acquired through allotment and certain
linkage sector being identified in the nearby villages. In the instant case
facts are different as allotment of alternate plot No.18 suggested by
petitioner would be in accordance with the linkage policy of the CIDCO.
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23. In view of this factual position we are of the considered
opinion that CIDCO cannot escape from its liability of either removal of
encroachment on the plot allotted to the petitioner, which is not likely to
happen in near future and therefore alternate liability of providing alternate
plot to the petitioner in the same vicinity and having same linkage.
24. The petition, therefore, stands allowed.
25. Respondent No.2 CIDCO, is hereby directed to allot to the
petitioner alternate plot of land being Plot No.18, admeasuring about 1050
sq. meters, situated at Sector 35-I, at Owe/Kharghar in lieu of plot No.70
sector 27 situate at Owe Kharghar, admeasuring 1100 sq. meters under
12.5% scheme, within four weeks from the date of order, on the similar
conditions on which original plot was allotted.
26. Rule made absolute in above terms.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]
