Pramod Ganpatrao Pinge vs State Of Mah. Thru. Its Secty & Anor
2017 Latest Caselaw 4882 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                           WRIT PETITION NO. 5891 of 2007

            Pramod Ganpatrao Pinge,
            aged : Major, Occ. Service, 
            R/o. Govt. Quarter, Ravi Nagar,
            Nagpur                                        ......             PETITIONER

                                  ...VERSUS...

 1.         State of Maharashtra,
            through its Secretary,
            Department of Urban Development,
            Mantralaya, Mumbai

 2.      Nagpur Improvement Trust,
         Through its Chairman,
         Nagpur                   ...                              RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri A.S.Kilor, Advocate for Petitioner.
 Shri V.P.Maldhure, Assistant Govt. Pleader for Respondent no. 1 
 Shri Girish Kunthe, Advocate for Respondent No.2
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, AND
                                        Mrs. SWAPNA JOSHI, JJ.

st DATE : 21 JULY, 2017 .

 ORAL JUDGMENT (P.C.)


            1]             The   question   involved   in   this   case   is   of   the

competency of the Nagpur Improvement Trust (in short NIT)

to pass Resolution No. 8/1003, dated 02.04.2003 proposing

to recover additional charges of development at the rate of

Rs.16/- per sq. feet from the first transferee of the land/open

plot which was already regularized under the provisions of

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the Maharashtra Gunthewari (Development, Regulation,

Upgradation and Control) Act, 2001 (in short "Gunthewri Act")

upon payment of development charges by the plot holder, the

transferee.

The facts of the case are as under;

2] One Wahida Begam purchased Plot No. 105, Khasra

No. 28/29, Mouza-Borgaon, Tq. And Distt. Nagpur, admeasuring

1050 sq. feet by registered sale deed dated 30.09.1992 from the

Cooperative Housing Society. About 1900 unauthorized layouts

were regularized along with the constructions thereon in

accordance with the provisions of the Gunthewari Act and the

Board Resolution No. 15, dated 27.01.2001 and B.R. No. 10/977,

dated 28.05.2001 and B.R.No. 8/1003, dated 02.04.2003. A notice

of demand dated 20.11.2003 was issued to said Wahida Begam

and she was required to pay the development charges at the rate

of Rs.16/- per sq.feet for the open land and at the rate of Rs.6/- per

sq.feet for the constructed area. It is not in dispute that this

demand was satisfied by Wahida Begam and accordingly, an order

of regularization was passed on 06.01.2004.

        3]               The   petitioner   purchased   the   plot   in   question   from




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Wahida Begam by registered sale deed dated 17.12.2003 i.e.

before the order of regularization dated 06.01.2004 was passed by

the NIT. The NIT issued notice of demand which is at Annexure-1

to the petition, calling upon the petitioner, the transferee of the

land, to pay additional regularization charges for sale of the

property at the rate of Rs.16/- per sq. feet, being total amount of

Rs.16,838/-. The stand of the NIT is that, in terms of clause (6)

under the notice of demand dated 21.11.2003 issued to the

erstwhile owner and the Board Resolution No. 8/1003, dated

02.04.2002, the demand notice at Annexure-1 was issued to the

petitioner and this is the subject matter of challenge in this writ

petition.

4] Shri Anil Kilor, the learned counsel for the petitioner,

has urged that the demand for additional development charges is

being justified on the basis of the provision of sub-section (3) of

Section 3 of the Gunthewari Act. According to him, the

development charges determined by the State Government to be

payable upon regularization of the plot under sub-section (3) of

Section 3 were paid by the erstwhile owner Wahida Begam and

thereupon the order of regularization was passed on 06.01.2004.

He submits that once the order of regularization was passed, the

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provisions of the Gunthewari Act cease to apply and the action for

recovery of development charges by issuing notice of demand in

question was incompetent.

5] The stand of NIT is that it is the planning authority as

defined under Section 2(c) of Gunthewari Act and in terms of

proviso to sub-section(3) of Section 3 therein, it was competent to

pass resolution No. 8/1003, dated 02.04.2003 in the meeting of

Board to impose the additional development charges of Rs. 16/-

per sq.feet leviable only upon the first transfer by the original

owner of the unauthorized plot. It is also the stand taken that the

said resolution was passed by the Board under the provision of

sub-section (1) of Section 25 of the Nagpur Improvement Trust

Act, 1949 and it was approved by the State Government in terms

of sub-section (2) of Section 25 therein by issuing communication

dated 30.06.2003, placed on record along with the affidavit. It is,

therefore, urged by Shri Kunthe, the learned counsel appearing for

the NIT, that there cannot be any doubt about the competency of

the NIT either to pass such resolution or to issue notice of demand

to implement such resolution.

        6]               On 4th July, 2017,  the matter was heard at length and





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        we passed an order as under;

"The question involved is of the competency of the Nagpur Improvement Trust (for short, "the NIT") to pass a Resolution No. 8/1003 dated 02-04-2003 proposing to recover the additional charges at the rate of Rs.16/- per square feet upon transfer of the land/open plot which was already regularized under the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act (for short, "the said Act"). It is not in dispute that, by Government Resolution dated 18.05.2001, the compounding fees or development charges determined by the State Government in exercise of the powers conferred by Section 3(3) of the said Act, have already been recovered from the erstwhile owner namely Wahida Begum w/o Abdul Kadar.

2] It is the stand of the respondent No.2 that by Resolution No. 8/1003m dated 02-04-2003 the additional charge was levied and it is sought to be recovered at the rate of Rs.16/- per square feet from the petitioner who is the transferee of the plot regularized under the said Act. This resolution was forwarded to the State Government under Section 25(1) of the Nagpur Improvement Trust Act, 1936, and it is stated by NIT that there is a sanction by the State Government vide letter dated 30-06-2003 filed with the reply at Document No.6. The stand of the NIT is that this is the authorization granted by the State Government to the NIT under the proviso to Section 3(3) of the said Act.

3] The State Government is, therefore, required to clarify its stand as to whether the resolution forwarded to it by the NIT under Section 25(1) of the Nagpur Improvement Trust Act, determining the compounding fee or development charge or both, is the authorization under the proviso to Section 3(3) of the said Act. It is also required to be stated on oath by the Respondent No.1 as to whether there is any authorization in writing to the Nagpur Improvement Trust, as required by sub-section (3) of Section 3 of the said Act. If it is there, copy be produced on record.

4] Put up this matter on 14-07-2017.

5] The respondent No.1 - State Government is directed to file affidavit in response to this order. No further adjournment shall be granted. If the affidavit is not filed, the concerned Secretary of the Urban Development Department shall personally remain present before this Court along with the record.

6] Steno copy of this order be provided to the learned Assistant Government Pleader appearing for respondent No.1 to act upon.

7] In response to the aforesaid order, the State

Government has filed an affidavit taking the stand in paragraph

Nos. 2, 3 and 4 as under;

"2. It is submitted that, the answering respondent No. 2 N.I.T is a notified planning authority under the Gunthewari Act, and being a planning authority N.I.T also has the power to determine the development and compounding charges under Sub-section 3 of Section 3 of Gunthewari Act.

3. It is submitted that, the respondent No. 2 N.I.T works under the provisions of Nagpur Improvement Trust Act, 1936. It is submitted that as per the provisions of Section 25 (1) of the said Act, Nagpur Improvement Trust has to submit all Board Resolution to the Government. Accordingly, the Bord Resolution No. 8/1003, dated 02.04.2003 passed by Board of N.I.T " for fixing charges for transfer of plots which have already been regularized, except in case of transfer to legal heirs" was submitted on 20.05.2003 to the Secretary, Urban Development Department, Mantralaya, Mumbai-32. The Government

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of Maharashtra vide letter No. Nasupra-2203/1057/ Navi-26, dated 30 th June, 2003, while approving the proposal communicated that the N.I.Ts action in the 1003rd meeting of the N.i.T Board is just and proper.

4. It is submitted that as per facts and circumstances mentioned above, the proceedings in respect of levy of additional charges is just and proper.

Thus, the petition moved by the petitioner is liable to be dismissed.

Hence this affidavit"

8] We have to see whether the action impugned can be

justified on the basis of proviso below sub-section (3) of Section 3

of the Gunthewari Act. The provisions of sub-section (1) and (3) of

Section 3 therein being relevant are reproduced below.

"3. (1) All Gunthewari Developments existing as on the 1st January, 2011, shall, on an application being made in this behalf by the plot-holder, to the Planning Authority, as provided in section 4, be eligible for being considered by the Planning Authority for regularisation:

(2)..........

(3) The regularisation of Gunthewari development shall also be subject to the prior payment of compounding fee and development charge, as may be determined by the State Government, from time to time:

Provided that, the State Government may, authorise the Planning Authority to determine the compounding fee or development charge or both, in the area of its jurisdiction".

It is not in dispute that in terms of sub-section (1) of

Section 3, the plot holder Wahida Begam was found eligible for

regularization of plot in question and accordingly an order of

regularization was passed on 06.01.2004. It is also not in dispute

that the State Government determined the amount of development

charges at the rate of Rs.16/- per sq. feet for the plot area and

Rs.6/- per sq.feet for constructed area in terms of sub-section (3)

of Section 3 and the erstwhile owner Wahida Begam had paid the

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said amount upon receipt of notice of demand dated 23.11.2003.

9] In order to get clarification of the position, we passed

an order dated 04.07.2017, directing the State Government in para

3 of the said order to state as to whether there is any authorization

in writing to the NIT as required by sub-section (3) of Section 3 of

the said Act and if there is anything in writing, the same be placed

on record. The reply of the State Government is conspicuously

silent on this aspect and there is no such authorisation placed on

record. In our view, in the absence of specific authority conferred

upon the NIT in writing as required by proviso to sub-section (3) of

Section 3 of the Gunthewari Act to determine the rate at which

development or the additional development charges for

regularisation of plot and the construction thereon the NIT was not

competent to exercise such power to levy and recover the

additional development charge. Once the State Government

determined the development charge under sub-section (3) of

Section 3 of the Gunthewari Act, the question of NIT again

exercising such power to impose additional development charge,

does not at all arise. The power gets exhausted. The further

authorization of the planning authority i.e. NIT to impose additional

charge is not within the contemplation of the said provision. Hence,

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in our view, the action of demand of additional charges by the NIT

is incompetent and cannot be sustained in the eyes of law.

10] With the assistance of the learned counsel appearing

for the parties, we have gone through the provision of Section 25

of the Nagpur Improvement Trust Act (for short, "the NIT Act"). We

find that the NIT is competent to pass such resolution only in

respect of the activities which are covered by the NIT Act and not

in respect of the action of the NIT as a planning authority under the

provisions of the Gunthewari Act. In this case, the NIT has

exercised the power of regularisation of plot and construction

under the provisions of Gunthewari Act and therefore, levy and

recovery of development charges has to be in the manner

prescribed therein and not as per the provisions of the NIT Act.

11] In the order dated 04.07.2017, passed by this Court,

we had called upon the State Government to clarify as to whether

the Resolution No. 8/1003, dated 02.04.2003 forwarded to it by the

NIT under Section 25(1) of the NIT Act determining the additional

development charges is the authorization under the proviso below

sub-section (3) of Section 3 of the Gunthewari Act. The affidavit

filed in response to the said order is conspicuously silent. It seems

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to be not possible for the State Government to state that the NIT

was competent to pass Resolution dated 02.04.2003, determining

the additional charge in terms proviso below sub-section (3) of

Section 3 of the said Act. We, therefore, find that the demand

notice issued by the NIT on the basis of the resolution passed

under Section 25(1) of the NIT Act was incompetent and cannot be

sustained.

12] Shri Kunthe, the learned counsel for the NIT has

invited our attention to the contents of the Board Resolution dated

02.04.2003 and the stand taken by the NIT in para 6 of the written

notes of argument, which is reproduced below.

"6. It is further submitted that the answering respondent No.2/NIT hereby drawing kind attention of the Hon'ble Court to Board Resolution No. 11/1000, dated 21/2/2003 (annexed as ANNEXURE No.R-12), passed by the Board of Nagpur Improvement Trust, wherein it was specifically mentioned that, 'for the cost of development work actually comes Rs.30/- to Rs. 35/- per sq.ft, but due to rates fixed by the Board of Nagpur Improvement Trust, vide Resolution, dated 25/8/2001, wherein the policy decision was taken to charge Rs.16/- per sq.ft. Development charges with Rs.6/- per sq.ft. as compounding charges, the Nagpur Improvement Trust charged only Rs.16/- per sq.ft. instead of rates mentioned above in the interest of public and on the other hand, it was also decided that, the remaining regularization charges shall be charged at the rate of Rs.16/- per sq.ft. at the time of first transfer of the plot, which is part and parcel of the original actual cost of development (i.e. Rs.30 to Rs.35/-), is just and proper and same has been taken in the interest of public at large. Therefore, the Board Resolution No. 8/1003, dated 2/4/2003 is just and proper and no interference is required"

We are not concerned with the actual cost of development

required to be incurred by the NIT It may be more than the one

which is already recovered. The question is whether the

Resolution dated 02.04.2003 can be sustained on the basis of the

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relevant provisions of law. The action impugned cannot be

sustained or justified on the basis of sub-section (3) of Section 3 of

Gunthewari Act or Section 25 of the NIT Act. Consequently, we

are unable to sustain the authority of the NIT to recover the

additional development charge on the ground that the expenses

incurred by it in development are much more than what are being

recovered from the land owner.

13] In view of above, this writ petition is allowed. The

notice of demand at Annexure-1 calling upon the petitioner to pay

additional regularization/development charges for sale of property

at the rate of 16/- per sq.feet is hereby quashed and set aside.

The NIT has already made its stand clear that it is not insisting on

payment of 2% penalty as was demanded in the demand notice

and hence, the question of adjudicating upon such penalty does

not at all arise. If the petitioner has deposited the said amount as

per the order passed by this Court, the same shall be refunded to

the petitioner within a period of eight weeks from today.

Rule is made absolute in above terms. No order as to

costs.

                                    JUDGE                         JUDGE

 Rvjalit