Manas Co-Operative Housing ... vs The State Of Maharashtra And Ors
2017 Latest Caselaw 8899 Bom

                                                   49-WP-9501-2017.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


                    WRIT PETITION NO. 9501 OF 2017



 Manas Co-Operative Housing Society
 Ltd.
 A CHS classified as a Housing Society,
 registered under the provisions of the
 Maharashtra CHS Act, 1960, having
 registration No. TNA-HSG-103279, and
 having its address at Mahatma Gandhi
 Road, Naupada, Thane (W) - 400 602,
 through its Chairman, Shri Umesh
 Dattatraya Bagul                                       ...Petitioner

         Versus

 1. The State of Maharashtra
 Thru its Revenue and Forest Department
 having office at Mantralaya, Mumbai - 40
 032.

 2. The Collector, Thane
 having office at the Collector Office,
 Thane.

 3. The Tahasildar, Thane
 4. The City Survey Officer, Thane.
 5. The Municipal Corporation for the
 City of Thane,
 through its Commissioner, having address
 at Panchpakahadi, Thane (W).             ...Respondents




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                                                        49-WP-9501-2017.DOC




 Mr. Atul G. Damle, Senior Counsel i/by Mr. J.M. Joshi for the
       Petitioner
 Mr. A.P. Vanarase, AGP for Respondent nos. 1 to 4.
 Mr. A.R. Pitale for Respondent no.5.


                               CORAM:    SMT. VASANTI A NAIK AND
                                         RIYAZ I. CHAGLA, JJ.

DATED : 21ST NOVEMBER 2017

O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Heard by consent.

2. The Petitioner by the present Petition is seeking directions

against Respondent No.2 for giving its consent / no objection

required under Condition No. 7 of Development Permission dated

17th June 2017 granted by Respondent No.5 as requested by the

Petitioner vide letter dated 19th June 2017. The Petitioner is

further seeking the quashing and setting aside of communication

dated 6th January 2017 issued by Respondent No.2 to the

Petitioner society and for directions against the Respondent

authorities to make / effect necessary changes in the property

card register pertaining to the subject land in accordance with

order dated 31st December 2015 of Respondent No.1.

49-WP-9501-2017.DOC

3. The Petitioner is a Co-Operative Society who had applied

for grant of land on leasehold basis for the purpose of construction

of residential building for accommodating its members.

Respondent No.2 in accordance with sanction accorded by

Respondent No.1granted lease of land admeasuring 2,736 square

yard out of survey No. 142 (CTS No. 118 / B), situated in village

Naupada, Taluka and District Thane (for short "the subject land")

to the Petitioner society for period of 30 years renewable at the

option of Petitioner society for two like periods and subject to term

and conditions stipulated therein. The possession of the subject

land was handed over to the Petitioner society upon payment of

the lease amount on 26th August 1978 and possession receipt to

that effect was also executed. The Additional Collector (Thane)

had granted NA permission to the Petitioner society for

construction of 42 tenements according to approved building plans

and construction was completed in accordance thereof. The lease

hold rights of the Petitioner society qua the subject land was

converted into occupancy basis upon payment of occupancy price

in accordance with prescribed procedure in 1984. A Public Interest

Litigation (PIL) No. 11 of 2010 was filed by one Ms. Vrushali Kalal

in this Court. The PIL had been filed by the Petitioner in view of

the complaints in respect of deficiency in diet provided for mentally

49-WP-9501-2017.DOC

ill persons placed in the Regional Mental Hospital (Thane) which

was situated in Survey No. 118 / A which was adjoining the subject

land which is in survey No. 118 / B. The Petitioner in the PIL had

sought innocuous prayer for implementation of the provisions of

the Mental Health Act, 1987 in Mental Hospital in the State of

Maharashtra.

4. The Petitioner society on 29th June 2012 had carried the

structural audit of the buildings and report had been received

wherein it has been opined by the consultant that extensive

repairs of the building were necessary and that the reconstruction

of the buildings be carried out. The Petitioner society accordingly

applied to Respondent No.2 on 9th October 2012 seeking

permission for redevelopment. The Petitioner also requested

Respondent No.2 to grant permission to load TDR as also

permission to permit the commercial user or some portion of the

existing area. The Petitioner society appears to have been

aggrieved with regard to the property card of the subject land

which did not reflect the subsequent changes in the status of the

Petitioner society which had been granted occupancy rights in

respect of the subject land. The Petitioner society applied to the

authorities to do the needful. On 31st December 2015, the

49-WP-9501-2017.DOC

Respondent No.1 issued an order whereby the proposal of the

Petitioner society with respect to change in the property card of

the subject land and the redevelopment / use of the TDR proposal

as well as the permission to permit the commercial user to the

extent of 15% of the existing area came to be sanctioned. This

was subject to the terms and conditions mentioned in the order

which include that Respondent No.2 should confirm whether the

Petitioner society had paid occupancy price directed to be paid

vide order dated 19th August 1983. In the PIL, an order came to

be passed by this Court on 12th August 2015, directing the State

Government and Collector, Thane that there shall not be further

allotment of land in Survey No. 118/A to any third party under any

condition. This Court had directed the State Government and

Collector, Thane to take steps to remove the encroachment on 10

Acres of the land and the steps ought to be intimated to this Court

before taking action. The Petitioner society addressed a letter to

the Respondent No.2 on 11th January 2016, requesting for action

to be taken on the basis of the order dated 31st December 2015.

The Petitioner society also requested the Inspector Land records,

Thane to update the property card of the subject land in

accordance with order dated 31st December 2015. Since no

action was taken by Respondent No.2, the Petitioner society

49-WP-9501-2017.DOC

addressed a letter to Respondent No.2 on 1st December 2016

pointing out that the land in issue in the PIL is survey No. 118/A,

whereas the subject land on which the Petitioner society premises

is situated is survey No. 118/B. The Petitioner society clarified

that it had nothing to do with the land survey No. 118/A. The

Petitioner society requested Respondent No.2 to effect property

changes in the property card pertaining to the subject land and

informed the Respondent No.2 that action was required to be

taken for redevelopment of the society buildings as they were in

very hazardous condition. On 6th January 2017, Respondent No.2

addressed a letter wherein the order dated 12th August 2015

passed by this Court in PIL was referred to and it was stated that

in view of the said order, there is a remark inserted in the property

card pertaining to the land which is the subject matter of the said

PIL to the effect that no third party interest shall be created. The

Petitioner was thus informed that no further orders had been

passed in the PIL since then and hence no action in accordance

with order dated 31st December 2015 can be taken. The

Petitioner society submitted its plans for sanction to the

Respondent No.2 Corporation on 22nd February 2017. On 17th

June 2017, the plans were sanctioned and Development

Permission was granted to the Petitioner society. As per Condition

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No. 7 of the Development Permission, prior to obtaining

commencement certificate, no objection from the Collector was

necessary. The Petitioner society applied to Respondent No.2

vide letter dated 19th June, 2017 along with the copy of the

Development Permission dated 17th June 2017 which was

enclosed and requested Respondent No.2 to grant no-objection

as expeditiously as possible. Respondent No.2 has not replied to

the said letter dated 19th June 2017 nor given its no objection as

prayed for. Hence the present Petition.

5. Mr. Atul Damle, the learned Senior Counsel appearing for

the Petitioner has submitted that although the plans for

redevelopment were submitted by the Petitioner society on 22nd

February 2017 and that sanction and Development Permission

was granted to the Petitioner society on 17th June 2017, the

Respondent No.2 had failed to give its no-objection. Hence the

Petitioner society could not commence redevelopment on account

of the no-objection being necessary from Respondent No.2 under

Condition No.7 of the Development Permission, prior to obtaining

the Commencement Certificate. It is submitted that the only

reason for non-grant of no objection by Respondent No.2 was the

order dated 12th August 2015 having been passed in the said PIL

49-WP-9501-2017.DOC

and that as per the said order it was directed that there shall be no

further allotment of the subject land therein to any third party

under any condition. The Respondent No.2 had erroneously relied

upon the said order when it was clear that the subject land in the

said PIL is Survey No. 118/A, whereas the subject land on which

the Petitioner society premises is situated is survey No. 118/B.

The subject land is not forming a part of said PIL and hence

Respondent No.2 was obliged to grant the no objection to the

Petitioner society. Mr. Damle has submitted that the Petitioner

society buildings are in dilapidated condition and requires

redevelopment to be carried out immediately. He has submitted

that necessary orders be passed by this Court directing

Respondent No.2 to grant consent / no-objection as required vide

Condition No. 7 of Development Permission dated 17th June 2017

granted by Respondent No.5.

6. The learned Assistant Government Pleader appearing for

the Respondent Nos. 1 to 4 has supported the communication

dated 6th January 2017 by placing reliance upon the order dated

12th August 2015 passed by this Court in the said PIL.

49-WP-9501-2017.DOC

7. We have perused the PIL filed in this Court and the said

order passed therein. We find that the PIL only contains the

innocuous prayer that direction be issued by this Court for

implementation of the provisions of the Mental Health Act, 1987 in

the mental hospitals in the State of Maharashtra as there had

been complaints of deficiencies in diet provided for mentally ill

persons placed in the Regional Mental Hospital. We have also

noticed that the order dated 12th August 2015, is in relation to a

land bearing separate Survey No. 118/A where the mental hospital

is situated and that the directions against the State of Maharashtra

and Collector, Thane for no further allotment of that land to any

third party under any condition has no connection with the subject

land which is situated in survey No. 118/B. We are of the view

that the Respondent No.2 has erroneously construed the said

order in not granting the no-objection to the Petitioner for the

redevelopment of the Petitioner Society buildings although the

Development Permission dated 17th June 2017 has been granted

by Respondent No.5. We find that there is no explanation on the

part of the learned Assistant Government Pleader appearing for

the Respondent No.2 as to why the no-objection had till date not

been granted to the Petitioner society other than relying upon the

49-WP-9501-2017.DOC

order dated 12th August 2015. We are therefore, of the view that

the Petition is liable to be allowed in the circumstances above.

8. We accordingly pass the following order:-

(a) The Respondent No.2 is directed to give its consent /

no objection required under Condition No. 7 of the

Development Permission dated 17th June 2017

granted by Respondent No.5.

(b) The communication dated 6th January 2017 issued

by Respondent No.2 to the Petitioner Society is

hereby quashed and set aside and we direct the

Respondent authorities to make / effect the necessary

changes in the property card register pertaining to the

subject land, in accordance with order dated 31st

December 2015 issued by Respondent No.1.

(c) Rule is made absolute in the above terms with no

order as to costs.

      ( RIYAZ I. CHAGLA J. )            ( SMT. VASANTI A NAIK, J. )