M/S. S.P. Developers Through Its ... vs The Municipal Corporation For The ...
2017 Latest Caselaw 2758 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                  CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO.11329 OF 2014


      M/s. S. P. Developers                                                    ..Petitioner
                Versus
      The Municipal Corporation for the
      City of Pimpri-Chinchwad & Ors.                                          ..Respondents


                                              ...........
      Mr. P.K. Dhakephalkar, Senior Advocate, a/w Nilesh Kadam i/b. Sachin
      Dhakephalkar for the petitioner.
      Mr. Deepak R. More a/w Nitesh J. Mohit for the respondent nos.1 to 3.
      Mr. Manish M. Pabale, AGP, for the respondent no.4.
                                              ...........


                                           CORAM: A. S. OKA &
                                                                A. K. MENON, JJ.

RESERVED ON : 27TH APRIL, 2017 PRONOUNCED ON : 6TH JUNE, 2017

JUDGMENT (PER A.K. MENON,J.):-

1. Rule. Returnable forthwith. By consent of parties, writ petition taken up

for final disposal.

2. By this petition, the petitioners seek a writ of mandamus to quash and set

aside the order dated 20th August, 2014 passed by the respondent no.3 - Deputy

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City Engineer, Construction Permission Department, and for a writ of

mandamus directing the respondent to consider the building proposal

no.BP/Wakad/815/2014 dated 5th August, 2014 in respect of the suit land

without demanding No Objection Certificate under the provisions of the Urban

Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as

ULCRA).

3. The facts in brief leading to the present petition are as follows:-

The petitioner is a partnership firm engaged in the development of property.

The respondent no.1 is the Municipal Corporation for the city of Pimpri-

Chinchwad. Respondent no.2 is the Commissioner of the Corporation and the

Deputy City Engineer in-charge of Construction, respondent no.4 is the State of

Maharashtra and the respondent nos.5 and 6 who have been subsequently

impleaded are the competent authority of Pune Urban Agglomeration and the

Deputy Superintendent of Police, Economic Offences Wing.

4. It transpires that Shri Ramchandra Nivruti Bhujbal is the owner of

agricultural land bearing survey no.172/1B (hereinafter referred to as the suit

land) admeasuring 59.7 R situated at Village Wakad, Taluka Mulshi, District-

Pune. The said land was in an agricultural zone and was within the purview of

the said Act. Since the land was cultivated no returns were filed under Section

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6(1) of ULCRA. On 6th August, 2014 the said Bujbal and others entered into a

registered Development Agreement with one Pankaj Builders and Promoters

through its proprietor Dr.Suresh Pandit Borole in respect of the 39.7 R out of

the total area of 59.7R of the suit land. An irrevocable power of attorney was

also executed in favour of the said builders and promoters. On 12 th September,

2007 Dr. Suresh Borole of the builders, executed an agreement of Assignment

of Development Rights along with power of attorney in favour of M/s. Kasturi

Erectors. Thereafter on 30th March, 2013 the said Bujbal acting through the

Kasturi Erectors as its partner executed a registered Sale Deed in favour of the

petitioner in respect of the suit land as also a power of attorney dated 30 th

March, 2013. On 5th August, 2014, the petitioner submitted building plans

along with the requisite documents. On 20 th August, 2014 the respondent no.3

rejected the proposal only on the ground that the suit land formed part of a

fabricated ULC order dated 20 th November, 1998 bearing ULC case No.1360-

BH and resulting in Criminal Case No.444 of 2005 which was still pending.

The petitioner was called upon to obtain a No Objection Certificate from the

Competent Authority, Pune Urban Agglomeration, Pune under the ULCRA. On

29th November, 2007 the said ULC Act of 1976 was repealed by the Repeal Act

and the land of which possession had not taken by the ULCRA became the

freehold lands of the respective land holders. The suit land it is submitted was

free hold land especially since there was no scheme under Section 20 of the

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Repeal Act.

5. An F.I.R. No.444 of 2005 was registered on 1 st June, 2005 at Swargate

Police Station under Section 420, 468, 471, 472 r/w 34 of the Indian Penal

Code in relation to a fraudulent Order under the ULCRA wherein the suit lands

find mention. It is submitted that in various cases similar issues have arisen and

the land had not been taken possession of by the State pursuant to the ULCRA.

No further steps will be taken since there was no saving under the Repeal Act in

respect of such lands. Mr. Dhakephalkar on behalf of the petitioner submitted

that no part of the suit land admeasuring 39.7 R had been taken possession of

by the State. In view of the repealed of the ULCRA no part of the said land can

now be declared as excess land. There was no impediment therefore in

considering the building proposal. It is further submitted that the pendency of

the criminal case had nothing to do with the said lands which were not a

subject matter of the criminal complaint. For the aforesaid reasons, the order

dated 20th November, 1998 declining to consider the petitioners case was

unsustainable.

6. On behalf of the Municipal Corporation, an affidavit has been filed by

one Mr. Makarand D. Nikam contending that the petition is not maintainable in

the light of alternate remedy by way of a statutory appeal under Section 47 of

the Maharashtra Regional Town Planning Act, 1966 being available. It is

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further contended that the land in question is forming part of Survey

no.172/1B, Village Wakad, Taluka Mulshi, District Pune, which find mention in

a bogus ULC order in respect of which the aforesaid offence has been registered

and which was being investigated by the State CID Pune. It is further contended

that in other cases as well lands were involved in criminal cases and no

objection letters were sought.

7. On behalf of the State, one Saurabh Avadh Rao, District Collector, Pune,

has filed an affidavit dated 15 th March, 2017 wherein it is stated that the order

under Section 8(4) relied upon by the petitioner does not tally with the original

order available in the office of the Collector. The original order pertains to land

bearing S. No.737/A, 134, Gat no.737/B and others, S. No.65/A/5, at Village

Kondhva and S.no.57/1/3/1 and others at village Undri and S. no.2/3 and others

at Village Pisoli. This order is issued by the Additional Collector and Competent

Authority Shri Bhaskarrao Mundhe on 20 th May, 1999. Whereas the petitioner

relies upon an order pertaining to S. No.172/1B (part) and 17/1/1 admeasuring

7170.00 sq. mtrs and is issued on 20 th November, 1998. Having realized these

discrepancies vide order dated 21 st April, 2005. It transpires that the then

Additional Collector and the Competent Authority filed a complaint with the

Swargate Police Station and criminal case no.444 of 2005 came to be registered

in relation to the fabricated order ULC no.1360/BH. Subsequently a charge-

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sheet has been filed in the Court of First Judicial Magistrate, Shivajinagar, Pune

and seven accused persons have been arrested. Later, in the year 2006, C.R.

No.2 of 2006 was registered with Pimpri Police Station, Pune and C.R. No.622

of 2006 came to be registered with Deccan Gymkhana Police Station in relation

to yet another offence pertaining to fabricated orders of exemption. It is further

contended that a Criminal Public Interest Litigation No.6 of 2008 by an order

dated 22nd February, 2011 this Court has directed setting up of an Special

Investigation Team. The State Government challenged the said Order in SLP

bearing no.2404 of 2011 and the operation of the judgment in PIL No.6 of

2008 was stayed. In the circumstances, it is contended that the investigations

are not complete and the investigation agency is not finalized and therefore, no

investigating agency can give a clean chit to the petitioner.

8. An affidavit of one Sourabhi Sharadchandra Pawar, Police Inspector,

EOW, C.I.D., Pune has been filed. The facts pertaining to the registration of the

offence concerning the present case has been set out in paragraph 4 of the

affidavit. It is stated that a charge-sheet is filed against seven accused namely

(1) Sanjay Bhausaheb Shinde, (2) Atul Ramchandra Panse, (3) Sujay Surendra

Chopade, (4) Sanjay Chandanmal Jain, (5) Kailas Babulal Wani, (6) Suresh

Pandit Borole and (7) Bapusaheb Gurupad Karande. In paragraph 5 it is stated

that the said Bhujbal had entered into a registered Development Agreement and

granted a power of attorney to Dr. Suresh Borole who had hired the middlemen

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Sanjay Jain, Kailas Wani and Bapu Karande who conspired with the three

accused viz. Sanjay Shinde, Atul Panse and Sujay Chopade in order to procure

false and forged certificates bearing no.1360-BH in respect of the said suit land

Survey no.172/1B, Village Wakad. It appears that Dr. Borole executed a

registered Deed in favour of M/s. Kasturi Erectors and thereafter said Dr. Borole

and others acting under power of attorney and executed a registered Sale Deed

and power of attorney in favour of the present petitioner. Since the suit land is

involved in fictitious ULC case the petitioner's application has not been

considered.

9. An affidavit in rejoinder is filed on behalf of the petitioner by one Anil

Shamandas Aswani, partner of the petitioner, wherein it is contended that the

ULCRA having been repealed proceedings under the said Act have abated and

the lands whose possession was not taken were rendered free hold lands of the

respective land holders. There was no scheme under Section 20 of the Repealed

Act. The land bearing survey no.172/1B was thus out of the purview of the

ULC Act and since the land was not declared as excess land, no part of the suit

land can declared as an excess land and the petitioner was therefore entitled to

seek and receive approval of the building proposal. In paragraph 7 of the

affidavit, the deponent has stated that neither the original owners of the land

nor the petitioner have made accused in F.I.R. bearing no.444 of 2005 and it is

not the case of the respondent that the petitioner is taking advantage of the false

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and fabricated ULC order. According to the deponent, the investigation has

then concluded and the charge-sheet has been filed and the case is awaiting

trial. Since the petitioners are not accused in the said case, there is no

justification in sustaining the impugned order.

10. Having heard the learned counsel for the parties and having considered

the facts of the case, it is now well settled that if the State had not taken

possession of the vacant lands before the Repeal Act which came into force on

before 29th November, 2007, the mere vesting of the land in favour of the State,

would not entitle the Competent Authority to proceed under the Act. Mere

vesting of the land by an operation of law without actually taking the

possession is not sufficient for invoking the provisions of Section 3(1)(a) of the

Repeal Act. This position of the law as laid down by this Court in the case of

Voltas Ltd. & Anr. v/s. Additional Collector and Competent

Authority, Thane & Ors. 1 which in express terms has held that by virtue of

Section 4 of the Repeal Act, the land in question would revert to landowner.

With effect from 29th November, 2007 the provisions of Section 10(5) and (6)

are no longer available to the State Government in relation to the said land and

as such the Competent Authority will not be entitled to direct the landholder to

deliver possession to the State nor could the State take possession on failure of

the landholder to deliver the possession. In the circumstances, by virtue of the

12008(5) ALL MR 537

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Repeal Act coming into force, there was no ground whatsoever to contend that

the land was not freehold land and subject to the saving under the Repeal Act.

11. In paragraph 14 of the Voltas judgment, this Court has also dealt with

and observed that intention of the legislature was not to save vesting of land of

which possession was not taken. Although when the Repeal Bill was introduced

clause (3) of the Repeal Bill considered provisions which intended to protect

and save vesting of even those with the State Government in relation to which

an order under Section 10(5) of the Principal Act has been made for delivery of

possession as also those lands of which possession has been taken. The Repeal

Act does not provide for such saving if possession has not been taken. This

position of law, it has been also affirmed by the Supreme Court in the case of

Vinayak Kashinath Shilkar v/s. Deputy Collector and Competent

Authority & Others 2 which holds in no uncertain terms in paragraph 10

that where possession of the vacant land has not been taken over by the State

Government or by any person duly authorized by the State Government in this

behalf or by the Competent Authority, proceedings under the Act would not

survive and without actual possession the vesting would be inconsequential.

This Court in a number of petitions being W rit Petition No.1972 of 2013

in the case of Parshuram Kashinath Joshi and others v/s. The State of

Maharashtra and others has held that the mere pendency of CID enquiry

2 2012 (4) ALL MR 461

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would not entitle the respondents to reject the petitioner's application in the

case for grant of occupancy certificate. Similarly, in the case of Anil

Nemichand Bafna and others v/s. The Collector, Pune and others

in Writ Petition no.3695 of 2014, this Court has held in its judgment

dated 3rd July, 2015 to which one of us (A.S.Oka, J.) is a party, that the pendency

of investigations in certain criminal complaints pending in relation to

illegal/irregular orders passed by the Competent Authority or by the Appellate

Authorities pursuant to fake/fabricated and/or forged documents should not

come in the way of the District Collector considering the application for grant

of non-agricultural use of the said land.

12. In the instant case, as well, it is seen that the charge sheet filed does not

indicate that the original owner nor the present holder has been indicted and

accordingly they were not accused in the cases and merely because the case is

pending will not entitle the Corporation to decline considering the building

proposal. The demand of the respondents to produce the no objection certificate

from the ULC Department also is devoid of any merit since the lands in any case

would not constitute vacant/excess lands since they are within the purview of

the ULCRA.

13. The only other aspect to be noted is that one Suresh Borole who is one of

the accused persons is the proprietor of one Pankaj Builders had sold the said

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land to the Petitioners vendor on or about 12 th September 2007 i.e. before 29th

November 2007, the effective date of repeal of ULCRA. We do not see this by

itself as reason to deny the petitioner consideration of the petitioner's

application. It is pertinent to note that on behalf of Respondent no.6 Deputy

Superintendent of Police EOW, and additional affidavit of Sourabhi

Sharadchandra Pawar, Police Inspector, EOW, C.I.D., Pune has been filed in

which the deponent in his capacity as officer in charge of the case

no.444/2005, states that the present petitioner is not involved in the offence

and not charge-sheeted. The case against the said Borole may proceed and does

not impact the petitioners right to pursue its application before the authorities.

14. In our view, considering all of the above there is no justification in

refusing to consider the building plans for want of a no objection certificate. In

the circumstances, we pass the following order:-

(i) The impugned order dated 20 th August, 2014 passed by the

respondent no.3 in relation to proposal no.BP/Wakad/815/2014 is

quashed and set aside;

(ii) The respondents are directed to consider the proposal no.

BP/Wakad/815/2014 in accordance with law and uninfluenced of the

pendency of the criminal case no.444 of 2005 relating to ULC Order

no.1360 BH and without insisting for any no objection certificate from

respondent nos.4 and/or 5.

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    (iii) Rule made absolute in the above terms.

    (iv) There will be no orders as to costs.




    (A. K. MENON, J.)                              (A. S. OKA, J.)