Bombay High Court
M/S. Essen Realtors vs State Of Maharashtra And Ors on 7 November, 2017
Bench: Anoop V. Mohta
WP. 3730-15
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 3730 OF 2015
M/s. Essen Realtors, )
A registered Partnership Firm, )
through its partner : Santosh Bhimsen )
Agarwal, Age - 41, Occupation - )
Business, R/at Survey No. 142/4, )
C.T.S. No.5102, near Khandoba )
Mandir, Akurdi, Pune. ... Petitioner
Vs.
1. State of Maharashtra )
Urban Development Department, )
Mantralaya, Mumbai 400 032 )
2. The Competent Authority, )
Pune Urban Agglomeration, Pune )
created Under Urban Land (Ceiling )
and Regulation) Act, 1976. )
3. District Collector, Pune )
Collector's Office Campus, )
Pune 411 001 )
4. The Municipal Corporation for the )
city of Pimpri and Chinchwad through )
the Municipal Commissioner, PCMC, )
A Planning Authority, PCMC )
5. The City Engineer, )
PCMC Pimpri, Pune ... Respondents
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WP. 3730-15
***
Mr. S. M. Gorwadkar, Sr. Counsel, for the Petitioner.
Mr. S. B. Kalel, AGP for the Respondent Nos. 1 to 3.
Mr. Nitesh J. Mohite i/b Deepak R. More, for Respondent No. 4 and 5.
***
CORAM : ANOOP V. MOHTA, &
MANISH PITALE, JJ.
RESERVED ON : NOVEMBER 3, 2017
PRONOUNCED ON : NOVEMBER 7, 2017
JUDGMENT : [PER : MANISH PITALE, J.]
1. Heard. Rule. Rule is made returnable forthwith. Learned
AGP waives service of notice for Respondent Nos. 1 to 3. Learned
counsel Mr. Nitesh Mohite waives service of notice for Respondent
No. 4. By consent of parties, petition is taken up for final hearing.
2. By this writ petition, Petitioners have challenged the
order dated 1.10.2014 issued by Respondent No. 3 directing the
Petitioner to stop construction work on the land in question on the
basis that the Petitioner was required to deposit market value of the
said land under Government Resolution dated 23.11.2007 as the land
was the subject matter of exemption under Section 20 of the Urban
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Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the
"said Act").
3. It is the contention of the Petitioner that the said order is
illegal and arbitrary and therefore, liable to be set aside as
developments subsequent to the exemption order dated 11.7.1984
passed under Section 20 of the said Act have not been taken into
consideration.
4. The facts, leading to the filing of the instant petition, are
that the original owner - M/s. Thermolab Glass Products Ltd. of the
land in question i.e. land Survey No. 142/1/2B and 142/4 at village
Akurdi, district Pune admeasuring about 5949.89 sq. mtrs., had
utilised the same for the industrial purpose. When the aforesaid Act of
1976 came into force, the original owner of the land submitted returns
under Section 6(i) of the said Act. The proceedings in pursuance of
the said returns filed by the original owner were pending when in
1977 a policy decision was taken by the Respondent - State
Government in respect of the lands utilised for the industrial purpose
that came under the purview of the aforesaid Act. As per this policy
framed in the year 1977, the Respondent State Government directed
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that such lands upto one acre in Pune Urban Agglomeration be granted
exemption under the aforesaid Act as a matter-of-course and that no
detailed scrutiny would be conducted. In pursuance of the said policy
decision, the Jt. Director of Industries of the Respondent State
Government passed an order under S. 20 of the aforesaid Act on
11.7.1984 granting exemption to the land in question in favour of the
original owner. This land formed part of the larger area of land
belonged to the original owner. Accordingly, the original owner
continued to have its industrial units on the said land.
5. In 1995, a development plan for the Respondent No. 4
Municipal Corporation was sanctioned and the land in question was
shown in the industrial zone. On 16.12.1999 in the Development
Control Rules (for short "DC Rules"), industrial user of lands was
permitted to convert such land to residential use, on the condition of
providing specified percentage of the land to the Respondent No. 4 -
Municipal Corporation, free of cost for amenities, and also on
payment of specified premium for the same. This was done keeping in
view the requirement of lands for residential purpose and the lack of
profit in the development of lands in the industrial zone. In this
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backdrop, since conversion of the land in question from industrial use
to residential use would have been contrary to the conditions specified
in the exemption order dated 11.7.1984 passed in the case of the
original owner of the land under Section 20 of the said Act, the
original owner requested the competent authority to decide its returns
filed under Section 6(i) of the said Act, which had remained pending.
6. On 20.7.2005, the Competent Authority i.e. Respondent
No. 2 passed an order under Section 8(4) of the said Act in pursuance
of the aforesaid returns filed under Section 6(i) of the said Act by the
original owner of the lands in question. The said Respondent took into
consideration the earlier exemption order dated 11.7.1984 passed by
the Jt. Director of Industries and upon inquiry, he found that the
original owner did not hold vacant land in excess of the ceiling limit
of the said Act. Thereafter, the original owner submitted an application
before Respondent No. 2 Competent Authority under Section 22 of the
said Act for permission of the redevelopment of the land in question.
This application was granted by the Competent Authority on
16.3.2007 on a specific condition requiring permission from the
Planning Authority.
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7. On 29.11.2007, the Act stood repealed in the State and as
per Section 3, the order granting exemption under Section 20 of the
said Act was unaffected. A few days before the repeal of the said Act,
the Respondent State Government issued a resolution dated
23.11.2007, laying down that if industrial land exempted under
Section 20 of the said Act was to be utilised for other purpose, then for
transfer of such land, an amount equivalent to the market value of the
said land would have to be deposited. In the year 2008, the original
owner sold the land in question to an entity from whom the Petitioner
purchased part of the land admeasuring 5949.89 sq. mtrs. on 9.4.2013
by a registered sale-deed.
8. Since the land in question was free to be developed, the
Petitioner submitted a proposal for development of the said land
before Respondent No. 4 - Municipal Corporation i.e. the planning
authority and on 25.11.2013 the said Respondent sanctioned the said
plan. On 5.7.2014, an application submitted by the Petitioner for
permission for non-agricultural use was granted by the Competent
Authority and the Petitioner commenced development work on the
said plot. It was in this situation, when the development was being
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undertaken by the Petitioner on the aforesaid land, the Respondent No.
3 issued the impugned communication / order dated 1.10.2014
directing the Petitioner to stop the development work on the ground
that the exemption order under Section 20 of the said Act issued on
11.7.1984 had not been cancelled and that therefore, Petitioner was
required to deposit market value of the land in question as per
Government Resolution dated 23.11.2007, before undertaking the
development work. This order is the subject matter of challenge in the
present petition.
9. Mr. S. M. Gorwadkar, learned senior counsel appearing
for the Petitioner submitted that Respondent No. 3 was not justified in
issuing the impugned order dated 1.10.2014 because the order dated
20.7.2005 issued by the Competent Authority under Section 8(4) of
the said Act was not taken into consideration. It was contended by the
learned senior counsel that when the aforesaid order dated 20.7.2005
was passed by the Competent Authority under the said Act, concluding
that the original owner did not hold vacant land in excess of the
ceiling limit, the exemption order passed under Section 20 of the said
Act stood annulled because for exercise of powers under Section 20,
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the owner of the land has to hold vacant land in excess of the ceiling
limit. It was further contended that the exemption order dated
11.7.1984 in the instant case was passed by the Jt. Director of
Industries under a specific policy, introduced in the year 1977 wherein
it was provided that there would be no detailed scrutiny of cases of
industrial units who hold the land and that exemption would be
granted as a matter-of-course. It was contended that since the
exemption order under Section 20 of the said Act was without any
inquiry or scrutiny, subsequent order dated 20.7.2005 passed after
detailed inquiry by the Competent Authority, concluding that the
original owner did not hold vacant land in excess of ceiling limit,
would prevail over the exemption order dated 11.7.1984 issued by the
Jt. Director of Industries. It was contended that the Petitioner had all
valid permissions from the relevant authorities for development of the
land and that the impugned order dated 1.10.2014 was unsustainable.
10. Mr. Kalel, learned AGP appearing for the Respondent -
State in response contended that the order dated 1.10.2014 issued by
Respondent No. 3 was fully justified because the Petitioner had failed
to take any steps for cancellation or setting aside of the exemption
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order dated 11.7.1984. As long as the said order remained, the
applicability of Government Resolution dated 23.11.2007 could not be
denied by the Petitioner and that if the Petitioner desired to carry on
the development work on the land in question, it was bound to comply
with the condition specified in the aforesaid Government Resolution.
11. We have heard the learned counsel appearing for the
respective parties and perused the pleadings and documents on record.
The real question in the instant case is as to what is the efficacy of the
exemption order dated 11.7.1984 passed under Section 20 of the
aforesaid Act in view of the admitted facts pertaining to the
subsequent developments. The record shows that the exemption order
dated 11.7.1984 was issued in pursuance of specific policy framed by
the State Government in the year 1977 as regards the lands with
industrial units, which were to come under the purview of the said
Act. The relevant portion of the said policy reads as follows:
"26. Policy regarding exemption under Urban Land
(Ceiling and Regulation) Act, 1976
Subject : Policy regarding Policy regarding
exemption under Urban Land (Ceiling and
Regulation) Act, 1976
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1. State Government is aware of the hardship which
industrialists, agriculturists, architects, builders,
engineers and common people are facing because of the
implementation of the Urban Land (Ceiling and
Regulation) Act, 1976. With a view to redress their
grievances, following policy decisions regarding
exemptions have been taken:
2. Exemption to Industries
2.1 It has been decided to give matter-of-course
exemption to the industrial units as follows:
(a) Upto half acre in Bombay Urban
Agglomeration;
(b) Upto one acre in Pune Urban
Agglomeration; and
(c) Upto two acres in remaining Urban
Agglomerations.
There will be no detailed scrutiny of the cases of
the industrial units which hold land as indicated
above and the exemption will be given to them as
a matter-of-course. In Maharashtra Industrial
Development Corporation areas, such exemption
will be given by the Chief Executive Officer,
Maharashtra Industrial Development Corporation
while in non-Maharashtra Industrial Development
Corporation areas, such exemption will be given
by Industries Commissioner."
12. The aforesaid policy clearly directs that exemptions to
industrial units were to be granted as a matter-of-course and that no
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detailed inquiry or scrutiny was to be conducted. It is an undisputed
fact that the original owner in the instant case was having industrial
units in the lands in question and accordingly exemption order dated
11.7.1984 was passed by the Jt. Director of Industries under the said
policy as a matter-of-course and without conducting any inquiry or
scrutiny. The fact that the Jt. Director of Industries passed the said
exemption order and not the Competent Authority under the said Act
also assumes importance in the instant case.
13. A perusal of the order dated 20.7.2005 passed by the
Competent Authority - Respondent No. 2 under Section 8(4) of the
said Act shows that such order has been passed on the returns filed by
the original owner under Section 6(i) of the said Act. This order takes
into consideration the exemption order dated 11.7.1984 passed under
Section 20 of the said Act by the Jt. Director of Industries; this order
also records that a proper enquiry was conducted, with the
maintenance surveyor of the office of the Competent Authority
visiting the spot and verifying claim of the original owner. Upon said
detailed inquiry, it was concluded by the Competent Authority in the
said order dated 20.7.2005 that the original owner did not hold vacant
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land in excess of the ceiling limit under the said Act. Thus, the
moment such a finding was reached, which remained unchallenged
thereby attaining finality, the question of exemption under Section 20
of the said Act did not arise. In other words, the earlier exemption
order dated 11.7.1984 issued as a matter-of-course by the Jt. Director
of Industries under specific policy of 1977, stood eclipsed by the said
detailed order dated 20.7.2005 issued by the Competent Authority
concluding that the original owner did not hold surplus vacant land in
excess of the ceiling limit.
14. In fact, a perusal of the affidavit-in-reply filed on behalf of
Respondent Nos. 1 to 3 shows that in paragraph 3 thereof, it has been
stated as follows:
"3. I say that thereafter, by order dated 20.07.2005, the
return under Section 6(i) was decided under the order under
Section 8(4), it was held that the land owner is not in
possession of any excess land. Ordinarily, this made the
exemption under order under Section 20 unnecessary and
irrelevant. However, the Petitioner did not take any steps to
get the order under Section 20 set aside."
Thus, the said Respondents were also clearly aware that the order
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dated 20.7.2005 passed by the Competent Authority under the said Act
concluding that the original did not hold surplus vacant land in excess
of the ceiling limit, rendered the exemption order dated 11.7.1984
under Section 20 the said Act as "unnecessary" and "irrelevant". Once
the said admission is given by the Respondents, it cannot lie in their
mouth that the impugned order dated 1.10.2014 was justified, as it was
issued on the basis of the exemption order dated 11.7.1984 passed by
the Jt. Director of Industries. The only contention raised on behalf of
the Respondent - State was that the Petitioner failed to take any steps
to set aside the exemption order dated 11.7.1984 and therefore, the
impugned order dated 1.10.2014 was justified. But, this contention is
unsustainable because in the facts of the present case, a valid
exemption order is not in existence, in view of the order dated
20.7.2005 passed by the competent authority under the said Act,
holding that the original owner did not hold vacant land in excess of
the ceiling limit. It is clear that upon passing of the order Section 8(4)
of the said Act holding that the original owner did not hold vacant land
in excess of ceiling limit, the exemption order under Section 20 of the
Act becomes non est and a declaration regarding cancellation of the
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exemption order is not necessary.
15. The learned AGP appearing for the Respondent also relied
upon Section 3 of the Repeal Act and claimed that the exemption
order remained in force despite repeal of the said Act and that
therefore, the prayers of the Petitioner may not be granted. The said
contention raised on behalf of the Respondent-State is unsustainable
because in the instant case, the order of exemption dated 11.7.1984
stood completely eclipsed by the subsequent order dated 20.7.2005
issued by the Competent Authority wherein it was categorically held
that the original owner did not hold vacant land in excess of the
ceiling limit. A bare perusal of Section 20 of the said Act shows that it
will come into operation only when owner of the land holds vacant
land in excess of ceiling limit. In the absence of the very basis for
operation of Section 20 of the said Act, the said exemption order dated
11.7.1984 issued by the Jt. Director of Industries cannot be held to be
existing and operational in the facts of the present case.
16. In this backdrop, it is clear that Respondent No. 3 was not
justified in holding in the impugned order dated 1.10.2014 that the
Petitioner was liable to deposit the market value of the land in
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question under Government Resolution dated 23.11.2007. The said
Government Resolution would apply only if the exemption order
under Section 20 of the said Act could be said to be in existence.
17. The facts on record show that the Petitioner purchased the
land in question by valid registered sale-deed dated 9.4.2013 and that
it was granted all necessary permissions for undertaking building and
development in the said land. As we are of the view that the
exemption order dated 11.7.1984 could not have been relied upon,
Respondent No. 3 was not justified in issuing the impugned order
dated 1.10.2014 directing the Petitioner to stop construction and
development work on the land in question. Accordingly, we allow the
instant writ petition, setting aside the impugned order dated 1.10.2014
issued by Respondent No. 3, and we direct Respondents to permit the
Petitioner to develop the land in question as per building permissions
granted to it, as may be modified from time to time. Rule is
accordingly made absolute in terms of prayer clause (a) with no order
as to costs.
Sd/- Sd/-
[MANISH PITALE, J.] [ANOOP V. MOHTA, J.]
Vinayak Halemath
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