Bombay High Court
Sudarshan Nagar Nagrik ... vs The State Of Mahrashtra And Ors on 2 August, 2016
Bench: S.V. Gangapurwala
1 WP-4451.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4451 OF 2011
1. Sudarshan Nagar Nagrik Sangharsha
Samiti, UnRegistered Associaion of
residents of Sudarshan Nagar,
Listed members as Exhibit-A
5th Housing Scheme, Sector N -11/A,
CIDCO, New Aurangabad,
Through -
Shri Narayan Tamboli,
President, Sudarshan Nagar N.S.
Samiti, Age: 72 yeas, Occupation -Retired,
R/o : House No. A 96/2, N-11,
Sudarshan Nagar, CIDCO
Aurangabad.
2. Shri Pramod Kedar Sharma,
Age: 56 years, Occupation Service,
R/o : House No. A 97/1, N-11,
Sudarshan Nagar, CIDCO,
New Aurangabad.
3. Shri Narayan Shankar Gaikwad,
Age: 62 years, occupation -Retired,
R/o : House No. A 105/1, N- 11,
Sudarshan Nagar, CIDCO,
Aurangabad. ...PETITIONERS
versus
1. State of Maharashtra,
Through - The Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032.
2. City & Industrial Development Corporation
of Maharashtra Ltd. (Popularly known
as"CIDCO"), Having its registered
office at "Nirmal" Nariman Point,
Mumbai 400 021.
Through
The Administrator,
Having his office at CIDCO Limited,
Udyog Bhavan, New Aurangabad
431 003.
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2 WP-4451.11
3. Aurangabad Municipal Corporation,
Through The Commissioner,
Having his office at Corporation
Building Town Hall, Aurangabad.
4. Shri Ishwarchanda Chaitanlal Sahuji,
Age 43 years, Occupation - Business,
R/o N -11, B/32, 04 HUDCO T.V.
Centre, Aurangabad.
5. Shri Shyamrao Pardesi,
Age: 65 years, Occupation-
R/o : House No. A 105/4, N -11
Sudarshan Nagar, CIDCO,
New Aurangabad.
6. Shri Ashok Dattatraya Vyas,
Age: 45 yeas, Occupation -
R/o : House No. A 95/1, N-11 Sudarshan
Nagar, CIDCO, New Aurangabad.
7. Shri Machhindra Vishwanath Ugale,
Age: 43 years, Occupation-
R/o: Plot No. 07, N-11 Sudarshan Nagar,
CIDCO, New Aurangabad.
8. Shri Suresh Bhole,
Age: 55 years, occupation -
R/o : House No. A 94/A, N-11, Sudarshan
Nagar, CIDCO, New Aurangabad.
9. Rajesh Ankushrao Tope,
Hon'ble Minister,
Higher and Technical Education
Mantralaya, Mumbai -400 032.
...RESPONDENTS
.....
Mr. Anand Chawre, Advocate for petitioners
Smt. S.S. Raut, AGP for respondent No. 1
Mr. A.S. Bajaj, Advocate for respondent No. 2
Mr. S.S. Tope, Advocate for respondent No. 3
Respondents No. 4 to 9 served
.....
CORAM : S. V. GANGAPURWALA AND
K.K. SONAWANE, JJ.
DATED : 2 nd AUGUST, 2016.
3 WP-4451.11
ORAL JUDGMENT :- ( PER : S.V. GANGAPURWALA, J.)
1. The petition is filed by association, thereby challenging allotment
of demised plot No. 8 Sector N-11, so also making grievance about
encroachment being made by respondents No. 5 to 8 on area of nala.
The petitioners also have ventilated their grievance with regard to non-
removal of encroachment on odd shape plot.
2. Mr. Chawre, learned counsel for petitioners submits that plot No.
8 is allotted to respondent No. 4. In fact, nala used to pass through
allotted plot No. 8. Even said nala is shown in lay out plan.
Respondent-City & Industrial Development Corporation of Maharashtra
Ltd. (for short "CIDCO") to favour respondent No. 4, carved out
residential plot over nala and allotted it to respondent No. 4, the same
is hazardous to the residents of locality. Even today because of
construction being made on plot No. 8, nala overflows, causing
nuisance to the persons of the locality. Learned counsel states that
while allotting plot No. 8 to respondent No. 4, procedure has not been
followed. Learned counsel for petitioners submits that procedure of
allotment of plot No. 8 to respondent No. 4 has been finalized in jet
speed, within ten days lease had been executed. Even concession is
given for paying installment beyond stipulated period. The map issued
by office of the respondent itself would clearly show the passing of nala
from the place where now plot No. 8 is being shown, which is allotted
to respondent No. 4.
4 WP-4451.11
3. Learned counsel further submits that respondents No. 5 to 8
have made illegal encroachment on the nala. At the first instance they
had made encroachment on open space abutting to their houses.
Respondent -CIDCO regularized their encroachment by allotting them
odd shape plots. Said procedure itself is illegal. Subsequently
respondents No. 5 and 6 have committed encroachment on the portion
of nala, such encroachment being disastrous. Neither respondent
-CIDCO nor respondent No. 3 - Municipal Corporation Aurangabad (for
short "Corporation") had taken any steps to remove encroachment in
spite of making representations. The petitioners even objected for
formation of plot No. 8 and subsequently allotment to respondent
No. 4, however, in spite of the protest from the association and filing
representations, CIDCO, leased out said plot No. 8 to respondent No. 4.
Respondents had not paid any heed to the hardship being faced by the
members of the petitioner-association. Learned counsel submits that
development authority cannot exercise statutory powers arbitrarily. It
has caused violation of fundamental rights of the petitioners. Road/
permanent access cannot be closed down, the same causes grave
hardship to the public at large. Respondents -authorities are duty
bound to provide basic amenities to the public at large. Learned
counsel further submits that because of encroachment by respondent
No. 5 so also formation of plot No. 8, one thoroughfare is closed down
and the same is illegal. Respondent No. 2- CIDCO and respondent No.
3 Corporation are not taking any steps.
4. Mr. Bajaj, learned counsel for respondent - CIDCO submits that
5 WP-4451.11
members of the petitioner association are provided access, nala has
been trained in the year 1992. In one of the map issued to the
petitioner - association, a mistake was committed, plot No. 8 was
formed in the year 1992 and same was allotted to respondent No. 4 in
the year 2007. There was delay with regard to payment being made
by respondent No. 4 and the same was condoned by the Government.
Thereafter, only lease deed was executed. It is not within short span
that the whole process was completed. After four years of allotment of
plot, lease was executed. Learned counsel submits that it is policy of
the CIDCO to allot odd shape plots to the adjacent plot holders. Odd
shape plots cannot be allotted independently and under said policy, odd
shape plots were allotted to respondents No. 5 to 8. It is the duty of
the Corporation to remove the same.
5. Mr. Tope learned counsel for respondent No. 3 -Corporation
submits that respondent-Corporation is duty bond to remove any
encroachment upon nala. Odd shape plots had been regularized, as
such, it cannot be said that there is any encroachment on odd shape
plots. Officers of CIDCO may assist officers of the Corporation in
conducting survey, to find out encroachment and if any such
encroachment is found, respondent - Corporation would take necessary
action against erring plot holders for removing encroachment.
6. We have heard learned Assistant Government Pleader.
7. The CIDCO is special planning authority and it is within the
domain of CIDCO to prepare lay out plan and revise it in accordance
6 WP-4451.11
with statutory provisions, bye-laws and rules. It has been stated on
affidavit by the authority of the CIDCO that today also nala is in
existence, however, said nala has been trained in 1992. Plot No. 8 was
carved out and, thereafter, it was allotted to respondent No. 4. Plot
No. 8 was allotted to respondent No. 4 in the year 2007 and for
payment of installment, time was sought. Respondent No. 4 did not
make payment of installment as stipulated, however, respondent no. 4
thereafter approached the Government. The Government condoned
delay in payment of installment, thereafter, lease deed is executed in
the year 2011. It would be seen that even after allotment, four years
have lapsed for getting lease deed. It would not be possible to
consider in writ petition what was the width of the nala and whether
the flow has been properly trained. It appears that same has been
done in the year 1992. It would be too late today to consider said
aspect, as building is already constructed on plot No. 8. It is presumed
that CIDCO must have followed proper procedure.
8. It is policy of CIDCO to allot odd shape plots to the adjacent plot
holders, abutting to which odd plots exist. The same cannot be said to
be beyond their policy. One of the major bone of the contention of the
petitioners is that respondents No. 5 to 8 have committed
encroachment over nala, certainly nala cannot be allowed to be
encroached, if encroachment take place on the nala, the same may
have disastrous result, the planning authority is required to take steps
to safeguard nala and to see that encroachment does not take place on
said nala and, if any, encroachment is found, immediate steps are
7 WP-4451.11
required to be taken to remove the same. Assurance is given by
respondent -Corporation, that if encroachment is found on the nala,
steps would be taken to remove the same. In case, officers of
respondent-Corporation at the time of making survey, require
assistance of the officers of CIDCO. In that case, CIDCO shall provide
necessary assistance to the Officers of respondent-Corporation.
Authority of respondent - Corporation shall conduct survey on priority
basis of said nala and if it is found that encroachment exists on said
nala, it shall take immediate steps to remove the same.
9. Writ petition is allowed in above terms. Rule is made absolute
accordingly. No costs.
Sd/- Sd/-
[ K. K. SONAWANE, J.] [S. V. GANGAPURWALA, J.]
MTK
