Kamlakar Raosaheb Patil And ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 3990 Bom

                                         1               WP/ 326 /2015



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                     BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO. 326 OF 2015

    1] Kamlakar Raosaheb Patil
       Age : 48 years, Occu.: Agriculture,




                                                 
       R/o : Plot No. 314, N-3, CIDCO,
       Aurangabad,
       Dist. : Aurangabad

    2] Suhas Annarao Mane,




                                            
       Age : 43 years, Occu.: Agriculture,
       R/o : Plot No. 314, N-3, CIDCO,
       Aurangabad,
       Dist. : Aurangabad
                                  ig           .. Petitioners

          VERSUS
                                
    1] The State of Maharashtra,
       Through its Secretary,
       Urban Development Department,
      

       Mantralaya, Mumbai - 32
   



    2] City and Industrial Development
       Corporation of Maharashtra Ltd.,
       Through its Administrator,
       Udyog Bhavan, CIDCO,
       New Aurangabad





    3] The Municipal Corporation
       Aurangabad through its Commissioner     .. Respondents

                                 ----





    Mr. S.B. Talekar, Advocate and Mr. U.R. Awate, Advocate for
    the petitioners
    Mr. N.B. Patil, AGP for the respondent No.1/State
    Mr. A.S. Bajaj, Advocate for respondent no.2
    Mr. V.P. Latange, Advocate for respondent no.3
                                 ----

                                          CORAM : S.V. GANGAPURWALA &
                                                  K.K. SONAWANE, JJ.

DATE : 20/07/2016

2 WP/ 326 /2015

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard

finally with consent of the parties.

2. Mr. Talekar, learned counsel for the

petitioners submits that as per the order passed by this

Court in earlier Writ Petition, the petitioners were

allowed to file application with CIDCO seeking no

objection certificate within four weeks from the order

dated 18/11/2009 in Writ Petition No. 6175 of 2009. The

petitioners applied within 15 days for No Objection

Certificate on 2/12/2009. The petitioners were granted

No Objection Certificate on 3/12/2009 and immediately on

17/12/2009, the petitioners applied for commencement

certificate. The respondent communicated some

deficiencies vide its letter dated 15/1/2010. According

to the learned counsel for the petitioners, the

petitioners, as per the letter, had submitted all the

documents and complied all the necessary aspects but

there was total inaction on the part of the Municipal

Corporation and the Municipal Corporation, eventually

3 WP/ 326 /2015

issued commencement certificate on 26/12/2014. The

petitioners have carried out 100% construction as per

the plan submitted to the Corporation and as per the

commencement certificate dated 26/12/2014. However,

abruptly, on 3/12/2014, CIDCO issued the notice to the

petitioners with regard to the cancellation of the

allotment and the agreement. Learned counsel for the

petitioners submits that the petitioners had complied

with the orders passed by this Court and each and every

step was taken, however, it was only because of the

delay on the part of the respondent-Corporation, the

commencement certificate was not granted in time.

Learned counsel for the petitioners submits that even

after filing of the present writ petition, the site is

visited by the Officers of the CIDCO for the purpose of

processing No Objection Certificate for occupancy

certificate. The letter to that effect is also issued

by the Assistant Engineer, N.O.C. cell on 11/3/2015.

According to learned counsel, 100% compliance as per the

commencement certificate has been made, therefore, the

impugned order/notice be quashed and set aside.

4 WP/ 326 /2015

3. Mr. Bajaj, learned counsel for the respondent -

CIDCO submits that the petitioners have not complied the

order passed by this Court in Writ Petition No. 6175 of

2009. The petitioners did not carry out the

construction as per the terms of the agreement. The

petitioners also did not carry out the construction as

per the notice issued pursuant to the directions issued

by this Court. There was total lethargy on the part of

the petitioners to develop the property. Though the

petitioners applied to the Municipal Corporation on

17/12/2009, the said application was devoid of necessary

particulars, as was required. The petitioners did not

comply the deficiencies and the deficiencies were

complied after a lapse of more than 4-1/2 years

after issuance of notice by CIDCO. This shows that only

farce of compliance was made by the petitioners.

According to the learned counsel for the respondent, the

petitioners are not entitled for any discretionary

orders passed of this Court.

4. Mr. Latange, learned counsel for the respondent

Municipal Corporation submits that there is no delay on

5 WP/ 326 /2015

the part of the Corporation. It is the petitioners, who

did not comply with the deficiencies, as were pointed

out to the petitioners from time to time. The

petitioners are themselves responsible for the delay.

5. We have considered the submissions. Petitioners

got the fresh lease of life pursuant to the orders of

this Court in Writ Petition No. 6175 of 2009. This Court

has laid down the schedule for the petitioners to take

steps. No doubt the petitioners applied for the NOC and

the commencement certificate within time stipulated by

this Court. The respondent Corporation pointed out some

deficiencies. Said deficiencies, as per the Corporation

are cured on 10/12/2014 and the commencement certificate

is issued on 26/12/2014. There is word against word

with regard to the compliances being made/not made by

the petitioners. We need not go into the said aspect.

The CIDCO, was well within its right to issue notice if

the construction is not carried or commencement

certificate is not obtained within the period as was

stipulated in the order passed by this Court dated

18/11/2009 in Writ Petition No. 6175 of 2009.

6 WP/ 326 /2015

6. It is submitted by learned counsel for the

petitioners that subsequently, the entire construction

as per the commencement certificate has been carried out

by the petitioners and even the respondent CIDCO,

through its officer has visited the site, as can be

viewed from the letter dated 11/3/2015 annexed to the

rejoinder at Exhibit A-4.

7.

CIDCO was only required to be satisfied about

the construction as per the commencement certificate for

issuance of no objection certificate for the occupancy

certificate.

8. Considering the aforesaid conspectus of the

matter that now the construction is carried out and part

of the construction was carried by the predecessor in

title of the petitioners, though there is delay for

completion of the construction, we invoke our

jurisdiction under Article 226 of the Constitution of

India in favour of the petitioners, however, the

petitioners also deserve to be mulct with penalty.

Considering the above, we pass the following order:-

7 WP/ 326 /2015

9. Impugned order/notice dated 3/12/2014 is

quashed and set aside. The respondent Corporation has

already inspected the site and if satisfied that the

construction is as per the commencement certificate, it

shall issue no objection certificate for grant of

occupancy certificate. The petitioners shall pay

penalty of Rs.1,00,000/- (Rs. One Lakh) to the

respondent - CIDCO within four (4) weeks.

10. Rule is accordingly made absolute in above

terms. No costs.

       
    



              [K.K. SONAWANE]         [S.V. GANGAPURWALA]
                  JUDGE                     JUDGE





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