Bombay High Court
Shantilal Tarachand Bothra vs The State Of Mah And Ors on 2 August, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7819 OF 2012
Shantilal Tarachand Bothra
Age: 60 years, occu: Agri & Social service,
R/o Main Road, Chopda,
Dist. Jalgaon Petitioner
Versus
1 The State of Maharashtra
through:
1.i The Principal Secretary,
Urban Development Department
1.ii The Principal Secretary,
Public Works Department.
1.iii The Principal Secretary,
Revenue & Forest Department
Mantralaya, Mumbai - 32
2 The Collector, Jalgaon.
3 The Planning Authority &
Municipal Council, Chopda
tq. Chopda, Dist. Jalgaon
4 The Assistant Director,
Town Planning Department,
Jalgaon. Respondents
Mr.R.R. Mantri advocate for the petitioner
Mr.P.S. Patil Assistant Govt. Pleader for Respondents No.1, 2 & 4
Mr. P.R. Patil advocate for respondent No.3.
____________________________
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CORAM : R.M. BORDE &
A.I.S. CHEEMA, JJ
Reserved on 12.1.2016
Pronounced on:2.8.2016
JUDGMENT
(Per: R.M. Borde, J)
1 The petitioner is seeking directions to respondent No.3
Planning Authority, Municipal Council, Chopda, to remove the
unauthorised construction of the shopping centre along side
Ankaleshwar Burhanpur road in block No.1156 of Chopda, Dist.
Jalgaon within specified period. A direction is also sought against
the respondent to remove the unauthorised construction raised
over the aforesaid property and for restoration of the land to its
original position i.e. for agriculture use within specified time
frame.
2 The petitioner states that, an agricultural land can only be
used for the said purpose and cannot be used for any other
purpose, without securing prior permission of the Collector under
the provisions of Section 44 of the Maharashtra Land Revenue
Code. It is the contention of the petitioner that, the use of the
land block No.1156 was prescribed for agriculture purpose.
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However, the Collector by order dated 6.8.2001 granted
permission for change of use for the purpose of cattle shed and
office only. It is the contention of the petitioner that, initially the
land to the southern side of high way was reserved under the
development plan as site No.87/1 for extension of college. If the
property is designated for a particular purpose, it can be used for
that purpose and for no other purpose. The petitioner contends
that, Agriculture Produce Marketing Committee (APMC) has raised
construction of more than 100 shops on the property and the said
unauthorised construction needs to be removed. The petitioner
further contends that, though the planning authority issued a
notice on 15.5.2005, calling upon the APMC to remove the
unauthorised development, no steps have been taken. The
petitioner as such, seeks a direction against the planning authority
for removal of unauthorised construction.
3 In an affidavit-in-reply presented on behalf of respondent
Nos.1 and 4, it has been stated that, under the revised
development plan, the northern side portion of the land bearing
Gut No.1156 is prescribed for the use of APMC and southern
portion is reserved for site No.90-A for the purpose of extended
use of APMC. According to the concerned respondents, the non-
agriculture permission granted by the Collector is for the purpose
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of cattle shed and office and not for shopping complex. It is stated
in the reply that, it is for the planning authority to take
appropriate steps.
4 An-affidavit-in reply has also been presented by the Chief
Officer of the Municipal Council, wherein, it has been stated that,
on 11.7.2000, the Assistant Director of Town Planning, Jalgaon
i.e. respondent No.4 recommended the said land bearing Gut No.
1156 northern part, for construction of cattle shed and office. On
8.6.2001, the Collector, Jalgaon granted non-agriculture (NA)
permission and converted the land bearing No.1156 admeasuring
18,800 square meters for commercial purpose. On consideration
of the orders passed by the learned Collector, Jalgaon dated
8.6.2001, granting NA permission, the then Chief Officer of
Municipal Council, Chopda, vide order dated 6.4.2002 granted
necessary permission for construction of shopping complex. It is
stated that, the southern part of gut No.1156 is prescribed, under
the development plan, for college. However, the Government of
Maharashtra vide its notification dated 29.5.2004, deleted the
said reservation and changed the purpose in respect of southern
portion of the land in gut No.1156, for extension of APMC Chopda.
The Chief Officer of the Municipal Council, Chopda granted
sanction to the lay out plan of APMC under the provisions of MRTP
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Act vide order dated 21.8.2004 for construction of shopping
complex on the southern side of gut No.1156. It is further stated
that the construction permission granted on 21.8.2004 by the
Chief Officer was subject to condition :
a) That the APMC should not start the construction unless the
said suit land has been measured and marked from the competent
authority of TILR office.
b)
That the APMC should take appropriate permission from the
office of the Public Works Department, Amalner, Collector as well
as Director of Marketing.
In view of its order dated 20.3.2010, the Chief Officer called
upon the APMC to produce following documents:-
a) The measurement & marketing sheet of Taluka inspector,
Land Records, Chopda.
b) The no-objection certificate issued by the Public works
Department
c) Appropriate permission from the Collector, Jalgaon as well
as the Director of Marketing.
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After receipt of the notice, the APMC, Chopda submitted
necessary documents except the no-objection certificate issued by
PWD. As such, the Chief Officer issued notices under sections 52
and 54 of the Maharashtra Regional Town Planning Act, 1966 on
15.5.2010, irrespective of the fact that, the NA Permission dated
8.6.2001 was already on record, while granting earlier
construction permission to the Northern side of the property
bearing Gut No.1156. It is further revealed that, APMC submitted
no-objection certificate issued by PWD, Amalner on 11.6.2010,
showing the post-facto sanction to the construction made by
APMC. It is further revealed that, the NA permission granted on
8.6.2001 in respect of gut No.1156 is for 18,800 square meters.
Gut No.1156 admeasures 23,000 square meters, out of that 4200
square meters is reserved for road purpose and the rest of the
land admeasuring 18,800 square meters can be used for NA
purposes in accordance with permission of the Collector. In view
of the facts stated above, it was requested by the Chief Officer
that no relief as requested by the petitioner need be granted.
5 The petition presented by the petitioner does not require
consideration for two reasons. One that the petitioner has not
impleaded necessary party i.e. APMC, Chopda, against which the
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relief has been sought in respect of demolition of the construction.
Even after extending an opportunity to the petitioner to make
necessary corrections, the petitioner refused to implead APMC as
party-respondent. An application tendered by APMC for
intervention, has also been vehemently opposed by the petitioner.
In this view of the matter, the petition needs to be rejected solely
on the ground of non-impleadment of necessary party i.e. the
party against which the substantial relief is sought.
6 The second reason necessitating the dismissal of the
petition is that, the petitioner is guilty of suppression of material
facts and has not come to the Court with clean hands. The
petitioner was Councilor of the Municipal Council during
1985-1990 and also held and occupied the office of the Vice
President/President of the Municipal Council. The petitioner deals
with property and had purchased various properties and has
vested interest in property block No.1156 which was reserved for
APMC. This land was purchased by Nitin Raosaheb Shelke,
Sudhakar Bhaskar Patil, Rajendra Balvantrao Patil, Shankar
Uttamrao Patil, Narendra Ghanshyam Choudhari and Madanabi
Pannal Sakle. The petitioner has acted as a Power of Attorney
holder for those persons. In fact, APMC made efforts for
acquisition of the property and pursued the matter with various
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authorities for number of years. However, as a result of position of
the petitioner, there were many impediments for APMC to acquire
the property. The petitioner, in his capacity as a power of attorney
holder, filed a Civil Application No.6834/2003 in Writ Petition
No.4235/99, challenging the Award passed under the Land
Acquisition Act, acquiring the land for APMC. After dismissal of the
Civil Application in the Writ Petition and the Writ Petition, a special
leave petition No.3275/2004 was presented by the petitioner to
Supreme Court, which was also rejected by order dated
12.4.2004. These facts have been withheld from the Court by the
petitioner.
7 On perusal of the order passed by the Collector, Jalgaon on
8.9.2001 granting NA Permission, it is evident that, the
permission is granted for commercial use and not for the purpose
of cattle shed and office, as contended by the petitioner. APMC
tendered a proposal to the Director of Marketing for permission of
development of the property on 20.8.2001. The Director of
Marketing, Pune granted permission to APMC for development of
the land on 6.12.2001. APMC, thereafter tendered an application
for permission of the development to the Planning Authority on
28.12.2002. The Municipal Council granted permission for
construction of shopping complex on 21.8.2004. It is stated that,
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tenders were floated and shopping complex has been constructed
after appointment of a contractor. There is open space kept
behind the shopping complex for use of cattle shed. The shops are
allotted on lease basis by way of a public auction and since 10-12
years, APMC is paying municipal taxes. It is contended by the
intervenor that, since the petitioner was unsuccessful in grabbing
the land reserved for APMC, he started creating hurdles for APMC
through the Municipal Council, where, he was occupying the office
either as councilor or the vice President/President of the Municipal
Council. APMC was required to challenge the notices issued by the
planning authority by presenting Writ Petition No.5639/2010. The
High Court granted interim orders on 29.6.2010, staying the
notices issued by the Municipal Council. Later-on, the Writ Petition
was withdrawn with liberty to avail appropriate remedies
permissible in law. The objection raised by the Planning Authority
in respect of submission of necessary 'no objection' certificate has
been complied by APMC. It is further pointed out that the
Government has already cancelled the reservation No.87-A over
land gut No.1156 which was for the college and the reservation
has been prescribed as site No.90-A for extension of APMC under
the Notification dated 29.5.2004.
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8 There appears absolutely no illegality in raising construction
of the shopping complex. Apart from the fact that the contentions
and objections raised in the petition do not bear any substance,
the petition does not deserve favourable consideration for two
reasons as recorded above i.e. suppression of material facts by
the petitioner and failure to implead necessary party to the
petition.
The petition is devoid of merit and stands rejected.
10 Pending Civil Applications do not survive and stand disposed
of.
(A.I.S. CHEEMA, J) (R.M.BORDE, J)
vbd
