Bombay High Court
Gera Developments Pvt. Ltd., And ... vs The State Of Maharashtra Through ... on 22 November, 2021
Bench: G. S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.896 OF 2021
Gera Developments Pvt. Ltd. )
and Anr. ).. Petitioners
Versus
The State of Maharashtra, )
through Principal Secretary (UD-1) )
& Ors. ).. Respondents
WITH
INTERIM APPLICATION NO. 959 OF 2021
IN
WRIT PETITION NO. 896 OF 2021
Shri Prabhakar Dagadu Buchade ).. Applicant
In the matter between:
Gera Developments Pvt. Ltd. )
and Anr. ).. Petitioners
Versus
The State of Maharashtra, )
through Principal Secretary (UD-1) )
& Ors. ).. Respondents
WITH
INTERIM APPLICATION NO. 768 OF 2021
IN
WRIT PETITION NO. 896 OF 2021
Rajendra Sunil Bodke ).. Applicant
In the matter between:
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Gera Developments Pvt. Ltd. )
and Anr. ).. Petitioners
Versus
The State of Maharashtra, )
through Principal Secretary (UD-1) )
& Ors. ).. Respondents
WITH
INTERIM APPLICATION NO. 1246 OF 2021
IN
WRIT PETITION NO. 896 OF 2021
Kundan Ashok Landge ).. Applicant
In the matter between:
Gera Developments Pvt. Ltd. )
and Anr. ).. Petitioners
Versus
The State of Maharashtra, )
through Principal Secretary (UD-1) )
& Ors. ).. Respondents
WITH
WRIT PETITION (ST.) NO.9531 OF 2021
Kapil Prabhakar Buchade ).. Petitioner
Versus
The State of Maharashtra )
& Ors. ).. Respondents
Mr. Virag Tulzapurkar-Senior Advocate with Mr. Nikhil
Sakhardande-Senior Advocate, Mr. Rohan Rajadhyaksha, Mr.
Pralhad Paranjpe, Mr. Rustam N. Mulla, Mr. Aditya N. Raut and
Mr. Sohan Kinkhabwala i/b. M/s. Desai Desai Carrimjee and
Mulla for the petitioners in WP/896/2021.
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Mr. Anil Anturkar-Senior Advocate with Mr. Preet Phanse and
Mr. Ajinkya Udane i/b. Mr. Yatin Malavankar for the petitioner
in WPST/9531/ 2021 and for applicant in IA/959/2021.
Mr. Milind Deshmukh for the applicant in IA/798/2021.
Mr. Prasanna K. Shahane for applicant in IA/1246/2021.
Mr. P.P. Kakade-Government Pleader with Mr. M.M. Pable-AGP
and Ms. G. P. Sonawane-AAGP for State.
Dr. Milind Sathe-Senior Advocate with Ms. Shyamali Gadre
and Ms.Tanvi Doshi i/b. Little and Co. for respondent nos. 2 to
4 (MIDC).
Mr. Nitin Deshpande for respondent no.5 (PMRDA) in
WP/896/2021.
CORAM : DIPANKAR DATTA CJ &
G.S.KULKARNI, J.
RESERVED ON : AUGUST 24, 2021
PRONOUNCED ON : NOVEMBER 22, 2021
JUDGMENT: (PER DIPANKAR DATTA, CJ.)
PROLOGUE:
1. Writ Petition No.896 of 2021 (hereafter "W.P.-I", for
short) and Writ Petition (St.) No.9531 of 2021 (hereafter
"W.P.-II", for short) were heard together along with interim
applications filed in W.P.-I. Undisputedly, the main controversy
is involved in W.P.-I and it is common ground that success of
W.P.-I, in any manner other than grant of relief as claimed
vide prayer clause (a), could have the effect of jeopardizing
the property rights of the applicants and the petitioner in
W.P.-II, viz. Kapil Prabhakar Buchade (hereafter "Kapil", for
short). Incidentally, Kapil is also an applicant seeking
intervention in W.P.-I. In our opinion, the controversy raised in
W.P.-I having given rise to the proceedings before this Court,
we are tasked to resolve such controversy first and,
thereafter, depending on the outcome of W.P.-I, decide W.P.-II.
In the process, we propose to give our reasons for disposal of
the interim applications too.
THE CONTROVERSY:
2. Failure/refusal and/or reluctance on the part of the
Maharashtra Industrial Development Corporation (hereafter
"the M.I.D.C.", for short) to issue Occupancy Certificate
(hereafter "the O.C.", for short) and Building Completion
Certificate (hereafter "the B.C.C.", for short) in respect of a
multi-storied building constructed by the petitioners in W.P.-I,
on the basis of a building plan duly sanctioned by the
M.I.D.C., has given rise to the controversy in W.P.-I.
3. W.P.-II was instituted during the pendency of W.P.-I,
wherein Kapil has expressed apprehension that moulding of
the relief claimed in W.P.-I and implementation of any
decision, taken in pursuance of an order passed on W.P.-I,
would affect his property rights. Similar apprehension has
been expressed by the other applicants.
4. As the narration of facts which we propose to undertake
hereafter would unfold, the Government of Maharashtra
(hereafter "the GoM", for short) has been the metaphorical
'Kumbhkarna'. By not waking up on time, the GoM has failed
to step in at the appropriate stage to set things right.
Although intermittently it did wake up from deep slumber, the
GoM did not notice and hence took no real interest in averting
the sort of a crisis situation that has gradually developed over
the years because two of the planning authorities under the
Maharashtra Regional and Town Planning Act, 1966 (hereafter
"the MRTP Act", for short), i.e., the M.I.D.C. and the Pune
Metropolitan Region Development Authority (hereafter "the
P.M.R.D.A.", for short) have been at crossroads while asserting
their respective rights under the relevant enactment. If only
the GoM had not continued to be in deep slumber, the
controversy raised in W.P.-I, in all probability, could have been
avoided. Be that as it may.
THE FACTS IN W.P. NO.896 OF 2021 (W.P.-I):
5. The case pleaded in the writ petition runs thus. The
petitioners in this writ petition essentially under Article 226 of
the Constitution of India are a private limited company
(hereafter "GERA", for short) and its Managing Director. It is
claimed that GERA is engaged in real estate business for 50
years.
6. Through a series of transactions, the leasehold rights in
respect of a piece and parcel of leasehold land bearing Plot
No.1B, situated at Rajiv Gandhi Infotech Park (earlier known
as "International Biotech Park"), M.I.D.C., Plot No.1B, Phase -
II, Hinjewadi, Pune, admeasuring 14,855 sq. mtrs (hereafter
"the subject land") stood transferred to GERA under a
registered Deed of Assignment dated December 16, 2015. It
was executed by and between International Biotech Park
Limited (in which the M.I.D.C. is also a joint venture
partner/shareholder and has representation on the Board of
Directors) and GERA, and is an exhibit to W.P.-I at Ext. C.
7. On March 30, 2016, the M.I.D.C. in its capacity as the
Special Planning Authority under section 40(1A) of the MRTP
Act granted additional FSI to GERA upon payment by it of
Rs.23,60,26,000/-. On April 12, 2016, April 24, 2017 and
January 11, 2018, the M.I.D.C. sanctioned the building
plan(s) for construction of a multi-storied building on the
subject land whereupon a commercial building named
"Imperium Rise" (hereafter "the said building", for short) has
duly been constructed by GERA. According to the petitioners,
construction of the said building, strictly in accordance with
the building plan(s), was completed in December, 2019.
8. While construction of the said building had progressed
up to the 15th floor, an engineer of the P.M.R.D.A. by his letter
dated July 17, 2018 called upon the petitioners to stop
construction immediately and to maintain status quo till a
further decision is taken. Such direction to stop work was
issued on the basis of a site inspection on July 16, 2018 and
formation of a prima facie satisfaction that the said building
was coming up on a plot of land which was within the limits of
a 'ring road'. A writ petition (W.P. No. 7910 of 2018) was
instituted by the petitioners before this Court challenging such
stop-work notice. However, by a letter dated July 30, 2018,
the P.M.R.D.A. informed GERA that since the M.I.D.C. is the
Special Planning Authority in the said area, the stop-work
notice stands withdrawn. In view of such letter of the
P.M.R.D.A., the petitioners' grievance in respect of the stop-
work notice stood substantially redressed and, as such, they
did not press W.P. No. 7910 of 2018. It stood disposed of as
withdrawn, as recorded in an order dated August 1, 2018.
9. After construction of the said building was completed in
December, 2019, the M.I.D.C. issued the Final Fire NOC and
the plot boundary verification certificate to GERA on January
1, 2020 and March 6, 2020, respectively. Thereafter, on March
11, 2020 (Ext. LL-1), GERA applied before the respondent
no.3, Executive Engineer of the M.I.D.C., for grant of the O.C.
in respect of the said building, enclosing therewith all the
relevant documents and necessary certificates.
Contemporaneously, GERA had also made an application
dated March 12, 2020 before the respondent no.4, Chief
Engineer of the M.I.D.C., requesting for grant of the B.C.C. in
respect of the said building (Ext. LL-2). GERA further claims
to have sent multiple reminder letters and requested the
respondent no.3 to grant the O.C. to it (Exts. MM and NN,
colly.). An online application dated October 26, 2020 was
also filed by GERA before the M.I.D.C. and the respondents 3
and 4 requesting for the O.C. in respect of the said building.
The Deputy Engineer of the M.I.D.C. suggested to the
respondent no.3, Executive Engineer of the M.I.D.C., to issue
the O.C. in favour of the petitioners. Also, by a letter dated
November 2, 2020, the Chief Executive Officer of the
M.I.D.C., informed the Principal Secretary (UD-1), Urban
Development Department, GoM (Ext. PP), inter alia, to the
following effect:
"3. .....As we are aware that all these I.T. companies
has already made a huge investment to obtain
approvals, permissions, construct these buildings, now
if they are not allowed to occupy these buildings then it
will be the big loss not only to them but also have
major impact on Government Revenue in the form of
direct & indirect taxes, also employment generation &
loss of business potential and this may have adverse
effect on the development of surrounding areas as well.
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Considering all the above facts of the matter and
as MIDC has already accorded building plan approvals
to these structures, it is fait accompli to issue
necessary Occupancy Certificate to the already build
structures coming in the proposed Ring Road
alignment; hence MIDC is issuing the same.
With reference to the subject matter you are
requested to accord approval-in-principal to make
change in the alignment of proposed Ring Road &
reduction in the width of ring road upto 45 to 60 m. I
hereby request you to please give your valuable
guidance and support to resolve the issue at earliest."
10. However, despite the repeated efforts and follow-ups,
there has been arbitrary and unreasonable failure and neglect
on the part of the M.I.D.C. and its officers to grant the O.C.
and the B.C.C. for more than 10 months, since it was first
applied.
11. The reason for which the O.C. and the B.C.C. has not
been granted by the M.I.D.C. is because of the proposed 'ring
road', which is part of the Regional Plan for Pune Region
(hereafter "the Pune Regional Plan", for short). The alignment
of the ring road, as proposed in the Pune Regional Plan, would
cut across the subject land, and the said building, as it
presently stands, would directly obstruct a part of such road.
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12. Several meetings were held between the officers of the
P.M.R.D.A. and the M.I.D.C. where they dwelled on various
aspects but ultimately no consensus could be reached and the
M.I.D.C. was informed not to issue any permission, certificate,
etc. in respect of structures/buildings that fall in the
alignment of the proposed ring road.
13. The fallout of the above, it is claimed, has caused severe
embarrassment and anxiety to the petitioners. Having
incurred huge expenditure in completing the said building, the
petitioners are being threatened by the purchasers of units in
the said building to drag them into unnecessary litigation
before the Maharashtra Real Estate Regulatory Authority 19
(hereafter "the MahaRERA", for short). The petitioners have
entered into agreements for sale, as mandatorily required
under the provisions of the Real Estate (Regulation and
Development) Act, 2016, with approximately 600 purchasers.
Since the O.C. and the B.C.C. are unreasonably and
unnecessarily withheld and if not granted to GERA forthwith,
grave and irreparable harm, loss and prejudice will be caused
not only to the petitioners but also the various allottees of the
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units in the said building. In case of non-grant of the
necessary O.C. and B.C.C., the petitioners are, inter alia,
likely to face legal proceedings for delayed possession of the
units to the respective purchasers, despite there being no
fault on their part. The purchasers may even terminate their
purchase agreements with GERA and seek refund of their
purchase consideration with interest, if possession is not
offered to the purchasers of their respective units, causing
immense loss to it. The total amount paid by approximately
600 purchasers exceeds Rs.25 crore. The petitioners claim
that they are faced with the prospect of not being issued the
O.C. and the B.C.C. because of the internal tussle of the
M.I.D.C. and the P.M.R.D.A.
14. It is urged by the petitioners that as per the
Development Control Regulations, 2009 and the Circular on
"Guidelines for Procedure, checklist of documents and time
limit for issuing building completion, occupancy certificate to
SPAs" dated December 21, 2017 issued by the M.I.D.C., the
respondents 3 and 4 are under obligation to decide the
application for the O.C. within a period of 15 days of the date
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of the application, which they respondents have failed to
decide (Ext. QQ).
15. The petitioners have referred to the position stated by
the M.I.D.C. in its letter dated November 2 2020 (Ext. PP) to
the effect that "considering all the above facts of the matter
and as MIDC has already accorded building plan approvals to
these structures, it is fait accompli to issue necessary
Occupancy Certificate to the already build structures coming
in the proposed Ring Road alignment; hence MIDC is issuing
the same" and in the light of the above, their incontrovertible
assertion is that GERA is entitled to the grant of the O.C. by
the M.I.D.C. However, despite stating that it would be issuing
the O.C., the M.I.D.C has failed to issue the same. It is
submitted that the aforesaid failure ex facie constitutes
arbitrary, unreasonable and capricious conduct on the part of
the M.I.D.C which warrants interference by this Court for
grant of relief as sought in W.P.-I.
16. Without prejudice to the aforesaid, the petitioners
contend that having regard to the promises/representations
contained in the Indenture of Lease dated March 26, 2004,
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various sanctioned plans, permissions and correspondence
addressed by the M.I.D.C., GERA proceeded to construct the
said building on the subject land. Accordingly, the M.I.D.C. is
precluded by principles of promissory estoppel from denying
the O.C. and the B.C.C. to GERA; also that, it is entitled to
the grant of the O.C. and the B.C.C. on the grounds of
legitimate expectation.
17. The petitioners finally contend that by arbitrarily and
unreasonably failing to issue the O.C. and the B.C.C., the
respondents have violated the fundamental rights of the
petitioners guaranteed under Articles 14, 19(1)(g) and 21 of
the Constitution of India.
18. With such pleadings, the petitioners in W.P.-I have
claimed the following relief: -
"(a) That this Hon'ble Court be pleased to issue a writ
of Mandamus or a writ in the nature of Mandamus or
any other appropriate writ, order or direction under
Article 226 of the Constitution of India, as the Hon'ble
Court may deem fit, directing Respondent Nos.2 to 4 to
grant the Occupancy Certificate and Building Completion
Certificate to Petitioner No.1 in respect of the said
Building, in terms of Respondent No.2's letter dated 02
November 2020 (Exhibit PP), addressed to the Principal
Secretary (UD-1) Urban Development Department,
Government of Maharashtra;
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(b) That pending the hearing and final disposal of the
present Writ Petition, this Hon'ble Court be pleased to
direct Respondent Nos.2 to 4 to grant an Occupancy
Certificate and Building Completion Certificate to
Petitioner No.1 in respect of the Said Building, in terms
of Respondent No.2's letter dated 02 November 2020
(Exhibit PP), addressed to the Principal Secretary (UD-1)
Urban Development Department, Government of
Maharashtra;
(c) In the alternative to prayer (b) this Hon'ble Court
be pleased to direct Respondent Nos.2 to 4 to grant a
provisional Occupancy Certificate and Building
Completion Certificate to Petitioner No.1 in respect of
the Said Building, in terms of Respondent No.2's letter
dated 2nd November, 2020 (Exhibit PP), addressed to the
Principal Secretary (UD-1) Urban Development
Department, Government of Maharashtra."
I.A. Nos.768 of 2021, 959 of 2021 and 1246 of 2021.
19. I.A.No.768 of 2021 (hereafter "I.A.-I", for short) is at
the instance of the applicant named Rajendra Sunil Bodke.
The applicant has sought for intervention in W.P.-I on the
allegation that GERA has encroached the lands of poor
agriculturists including his land for which no compensation
has been paid as well as on the allegation that GERA and the
officers of M.I.D.C. have been acting in connivance with each
other to deprive the poor agriculturists of their rights.
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20. I.A. No.959 of 2021 (hereafter "I.A.-II", for short) is at
the instance of the applicant named Prabhakar Dagadu
Buchade. The applicant has filed the application for
intervention through his constituted attorney, Kapil (the
petitioner in W.P.-II). The prayer of the applicant is based on
the ground that the original Regional Plan for Pune Region
having been approved, there cannot be change of use of any
land for any purpose, other than agriculture, or for the
purpose of carrying out any development, without previous
permission and that the M.I.D.C. has failed to comply with
and/or to act in accordance with the provisions of section 18
of the MRTP Act. It is pleaded that vide Government
Resolution dated March 30, 2017, a notice was published
inviting objections/suggestions with regard to the change of
alignment of the ring road and thereby to make changes in
the original Regional Plan. Pursuant to objections/suggestions
that were received, the ring road was realigned by modifying
the original plan. Such realignment did not affect the lands of
the applicant. There was a further modification of the
alignment of the ring road. GERA had never objected to such
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modifications at any point of time. The applicant has pleaded
in paragraphs 20 and 27 that he is really aggrieved by the
order dated March 3, 2021 passed by us wherein it was
recorded that officers of the P.M.R.D.A. were ready to sit with
the officers of the M.I.D.C. as well as GERA to find out a
solution by reducing the width of the proposed ring road. The
applicant apprehends that if the alignment of the proposed
ring road is re-aligned once again, it would pass through his
agricultural properties situated on Survey Nos.57/1/2, 62/1
and 62/4 thereby causing immense prejudice and detriment.
21. I.A. No.1246 of 2021 (hereafter "I.A.-III", for short) is at
the instance of the applicant named Kundan Ashok Landge.
The allegations based whereon intervention has been sought
by the applicant are more or less similar to the allegations
levelled in I.A.-I. According to the applicant, GERA instituted
W.P.-I to use the court machinery to give a go-bye to and/or
to protect the illegalities committed by it and the officers of
the M.I.D.C. From paragraph 17 of the application, it appears
that several complaints have been lodged by the applicant as
well as other agriculturists before the MahaRERA under the
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provisions of the Real Estate (Regulation and Development)
Act, 2016 and that such complaints are pending.
THE PROCEEDINGS OF W.P.-I BEFORE THE COURT:
22. While hearing W.P.-I, we noticed that the P.M.R.D.A.
was not arrayed as a respondent although it is a necessary
party. Accordingly, by our order dated February 16, 2021,
leave was granted to the petitioners to implead the
P.M.R.D.A. as an additional respondent. Necessary
amendment having been effected, the P.M.R.D.A. was
brought on record.
23. On March 3, 2021, we had issued Rule in W.P.-I after
hearing the parties for some time. Having noticed the letter
dated November 2, 2020 of the Chief Executive Officer of the
M.I.D.C. addressed to the Principal Secretary, U.D.D., GoM
(extracted supra), we had observed that pendency of the Rule
ought not to preclude the respondents in the writ petition,
i.e., the U.D.D., GoM, the M.I.D.C., the P.M.R.D.A. as well as
the petitioners to sit together and find out a solution upon
realigning the ring road so that it could bypass the subject
land of the petitioners, and thereby the controversy in respect
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of issuance of the O.C. and B.C.C. may be laid to rest once
and for all. If any decision were arrived at prior to final
hearing of the Rule, it was observed that such decision ought
to be placed before us. This arrangement was to be worked
out without prejudice to the rights and contentions of the
petitioners in W.P.-I.
24. At this juncture, we deem it appropriate to record that
few orders were passed in March, 2021 to facilitate resolution
of the issues by arriving at a workable solution without
prejudice to the rights and contentions of the parties. Finally,
the parties could meet on April 1, 2021. In our order of April
6, 2021, we recorded Mr. Tulzapurkar, learned senior counsel
appearing for the petitioners, having placed on record a
communication dated April 5, 2021 of the Chief Engineer,
P.M.R.D.A. addressed to the Executive Engineer, M.I.D.C.
along with the minutes of meeting dated April 1, 2021. A re-
aligned plan, reportedly prepared in terms of the deliberation
in the meeting held on that date, was also placed on record.
It was at this stage that Mr. Anturkar, learned senior counsel
for Kapil, had intervened and prayed for time to obtain
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instructions as to whether the re-aligned plan would affect the
interests of Kapil who, in the meanwhile, had filed I.A. No.959
of 2021 for intervention. While adjourning hearing till April 7,
2021, officers of the U.D.D., GoM, the P.M.R.D.A. and the
M.I.D.C., who had attended the meeting on April 1, 2021
were directed to remain present, so that an endeavour could
be made to resolve the issues.
25. Several opportunities were granted thereafter to arrive
at a workable solution which, unfortunately, have not
fructified.
26. During the pendency of W.P.-I, however, partial O.C. was
granted by the M.I.D.C. in favour of the petitioners; but they
chose not to accept such partial O.C. and prayed that the Rule
be heard finally. Resolution of the issues through discussions
not being in sight, we did not wish the proceedings to linger
further; hence, the writ petitions and the applications were
taken up for final hearing. In the course of hearing, the
parties were informed that we propose to hear Mr. Anturkar
(on behalf of Kapil since he had instituted an independent writ
petition) and consequently I.A. No. 959 of 2021 would be
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allowed, whereas the other interim applications would not be
entertained and that the applicants thereof would be left free
to seek their remedy in accordance with law.
FACTS IN W.P. ST. NO.9531 OF 2021 (W.P.-II):
27. W.P.-II by Kapil arises out of an apprehension. Kapil is
an agriculturist, having lands on the edge of the industrial
area of the M.I.D.C. He apprehends that if the decision
recorded in the minutes of meeting dated April 1, 2021,
insofar as the same relates to re-alignment of the proposed
ring road by preparing a revised plan to save the said building
constructed by GERA, is implemented, he stands the risk of
losing his lands and consequently, that would lead to his
property rights being abrogated.
28. Kapil has, accordingly, prayed in W.P.-II that the minutes
of meeting dated April 1, 2021 be quashed.
29. As stated by Kapil, the reason why W.P.-II has been
instituted as an independent proceeding, when the application
for intervention in W.P.-I was pending, is that he received
legal advice to the effect that as an intervenor he cannot
question the legality of the minutes of meeting dated April 1,
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2021; hence, institution of W.P.-II was necessitated.
30. The minutes of meeting dated April 1, 2021, recorded in
Marathi, is Ext. DD of W.P.-II. However, Mr. Tulzapurkar having
placed on record the translated version of such minutes in
English and the parties not having objected to the said
translated version, we propose to reproduce the same in its
entirety for a decision on Kapil's intervention application as
well as W.P.-II. The minutes read as follows:
"Subject: Minutes of meeting dated 01st April 2021
conducted under the chairmanship of Commissioner
PMRDA at the office of PMRDA on 1st April, 2021 at
11.30 A. M. in accordance with the Hon. High Court
order in Civil Writ Petition no. 896 of 2021 dated 03 rd
March 2021 and 19th March 2021 between PMRDA, MIDC
and Gera Developers.
Foreword: -
Gera Developers have filed a Civil writ petition No. 896
of 2021 since MIDC is not issuing occupancy certificates
to the constructions coming in the alignment of the 110
mtr ring road sanctioned under the regional plan at
RGIP, Ph-II, Hinjawadi, Pune. PMRDA is respondent No.
5 in the said petition. The Hon. High Court in its order
dated 03/03/2021 has instructed to conduct a joint
meeting between UDD, MIDC, PMRDA and the
petitioners. The said meeting was first scheduled on
09/03/2021 but it could not take place as the CEO,
PMRDA was appointed as the election observer in West
Bengal by the Election Commission. After completion of
the work of the first phase of the election the meeting
was conducted in the conference hall of the
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Commissioner, PMRDA at PMRDA's Aundh office on 1st
April, 2021 at 11.30 A. M. between PMRDA, MIDC and
Petitioners. The following people representing PMRDA,
MIDC and Gera Developers were present for the said
meeting as mentioned in the separate list attached.
MINUTES OF THE MEETING
The Commissioner PMRDA welcomed everybody at the
start of the meeting and mentioned the context of the
meeting.
The inner ring road of PMRDA admeasuring 128 kms in
length and width 90 mtrs was proposed in the regional
plan of Pune 1997. The width of which was amended to
110 mtrs as per the provisions of section 20(4) of the
MRTP Act. The status of this road as on today is of a RP
road. The PMRDA came into existence on 30/03/2015
and it is a planning authority for the PMR region and
MIDC is the planning authority for MIDC area like Rajiv
Gandhi Infotech Park, Hinjawadi under the provisions of
the MRTP Act. The Commissioner PMRDA also made it
clear that the RP of 1997 is still in force and is binding
upon all the planning authorities including MIDC. The
said regional plan is applicable to MIDC area also. The
length of the ring road is 128 kms and since it is passing
through the boundaries of PMRDA, PMC, PCMC and MIDC
it is necessary to plan the ring road together. Therefore
it is necessary for all the above mentioned planning
authorities/local self-government to consider the area
under this ring road. It will not be possible to take into
consideration only the approx. 3 kms length of the ring
road passing through MIDC area.
Since the responsibility of the RP road is of the PMRDA's
the work of ring road project/inspecting the alignment/
preparing the project report was undertaken by PMRDA.
On 26/04/2016, CE PMRDA, Engineering branch has
brought to the notice of CE MIDC (Pune Zone) that
construction permissions were given to industries
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coming in the alignment of the sanctioned ring road in
Hinjawadi Industrial area. Thereafter a lot of
correspondence took place between PMRDA and MIDC
and also many meetings were conducted at the level of
Commissioner PMRDA. The Regional officer MIDC in his
letter dated 20/07/2018 has mentioned that he has
informed to the Executive Engineer (IT-Division) MIDC in
accordance with the letter of PMRDA dated 10/07/2018
that no permissions or sanctions are to be granted to
plots which were being affected by the ring road.
PMRDA since its inception in 2015 has time and again
brought to the notice of MIDC about the constructions
that were taking place in the alignment of the
sanctioned ring road of 1997. Now if the alignment is to
be changed then there is a possibility that the owners of
the plots, developers who have been granted permission
and who will now be affected due to the new alignment
will oppose such a thing. Also it will be necessary for the
Government to finalize the change in alignment vide
sections 20 and 37 of the MRTP Act after calling for the
suggestions of the citizens.
In the meantime, after 2016, there is an outer ring road
- width 110 mtrs of MSDRC which has also been
proposed. Also the Government has decided to keep the
alignment of both the ring roads common for a stretch
of 38 kms from Urse to Solu. Now since the work of
MSRDC ring road has gathered momentum, based on
the vehicle population and as per the requirement it has
been requested to the Government by PMRDA vide its
letter dated 07/01/2021 to convene a meeting at
Government level to get an approval for reducing the
width of the ring road to 60/65 mtrs for some portion of
its length. It is also made clear in this that, excluding
the length of the ring road with MSRDC, for an approx.
length of 85 kms from Solu to Parandwadi (Urse
interchange) and for the width of that stretch it is
necessary to have a joint planning. In this remaining
length, an approx. length of 44.42 kms passes through
- 25 -
the PMC limits and for that action in accordance with
section 37 of the MRTP Act is expected to be taken. The
ultimate decision of reducing the width of the said ring
road is necessary to be taken at the Government level.
For this, MIDC is expected to follow up with Government
regarding this proposal in accordance with the below
mentioned points considering the permissions granted to
petitioner Gera along with other permissions.
A.) To suggest an alternate alignment of the ring
road within the MIDC limits and to present
the same to the Urban Development
Department of the Government and to give a
copy of it to PMRDA for it to incorporate it
into its DP.
B.) If MIDC proposes any changes and if such
changes require any forest land then it shall
be the responsibility of MIDC to make
available the said forest land at their own
cost.
C.) No compromises to be done in the
geometrical standards of the ring road.
D.) It shall be necessary for MIDC to ensure that
the suggested alignment of MIDC does not
impact any permissions which have been
granted by PMRDA/Government earlier.
Thereafter Shri. Rohit Gera - Managing Director Gera
Developers while explaining their point of view
mentioned that earlier PMRDA had issued a stop work
notice but later on had withdrawn it.
On this, the Commissioner PMRDA gave an explanation
that MIDC as a planning authority can take action in
accordance with the MRTP Act. Therefore, there was no
question of PMRDA directly issuing a stop work notice.
Also, before the work actually started at site, PMRDA
- 26 -
from time to time had informed MIDC to take preventive
action on the constructions. However it is expected to
find a solution to points A, B, C, D. On this, Shri. Rohit
Gera consented to the point that since the project is in
MIDC land, he shall submit a proposal regarding revised
alignment to MIDC and then MIDC along with its opinion
shall submit it to PMRDA and the Government.
The Commissioner has passed the following orders at
the end of the meeting;
1) The MOM to be shown to MIDC and petitioners
unofficially for their consent and the said fact to
be brought to the notice of the Hon. High Court at
the hearing scheduled on 6th April, 2021.
2) In accordance with A, B, C, D above, MIDC to
prepare a technical proposal of revised alignment
- 65 mtrs width for MIDC area.
3) MIDC while preparing their proposal should try
and be in sync with the technical parameters of
the 65 mtr alignment proposed by PMRDA. For
this, all the necessary information to be shared by
PMRDA with MIDC.
4) MIDC to follow up with UD regarding their
proposed/revised proposal for their area.
5) The issue of reducing the width of the ring road is
currently at a proposed stage and a final decision
regarding this is expected to be taken at
Government level. Also, action to be taken by
PMRDA to adopt a stance of co-operation with
MIDC regarding the ring road alignment within the
MIDC area.
The meeting was concluded with a vote of thanks.
(Dr.Suhas Diwase)
CEO, PMRDA"
- 27 -
M.I.D.C.'s CASE:
31. M.I.D.C. has filed 2 (two) affidavits, one dated February
18, 2021 and the other dated April 19, 2021.
32. Case of the M.I.D.C. is that, all along it acted in terms of
the Maharashtra Industrial Development Act, 1961 (hereafter
"MID Act", for short) and the Development Control
Regulations, duly sanctioned/approved by the GoM from time
to time, and that all building plans for construction of
buildings as part of expansion of the Infotech Park were
sanctioned before the P.M.R.D.A. came into existence in 2015.
It is the further stand of the M.I.D.C. that despite the Pune
Regional Plan having been sanctioned by the GoM as far back
as in 1997, yet, lands had been acquired by the GoM in terms
of section 32 of the MID Act for the M.I.D.C. for setting up an
'industrial area'. It is also its stand that even the Final
Regional Plan for a particular Region is susceptible to
necessary revision/modification at the instance of the GoM
and the P.M.R.D.A., after coming into existence, has also got
the alignment of the proposed ring road altered not once but
twice during 2017-19.
- 28 -
33. In fine, the M.I.D.C. has taken a stand that the
petitioners in W.P.-I have no cause of action to claim relief
against it and, thus, the writ petition against it ought to be
dismissed.
P.M.R.D.A.'s CASE:
34. On behalf of the P.M.R.D.A., two affidavits have been
filed. In the first affidavit dated April 9, 2021, the stand
taken is that after the Pune Regional Plan was sanctioned on
November 25, 1997 and it came into effect on February 10,
1998, the M.I.D.C. committed serious breach of the provisions
of sections 45 and 46 of the MRTP Act by granting building
permission in such a manner that the same violates the Pune
Regional Plan. It is also asserted that the petitioners have
constructed illegally with open eyes and, therefore, cannot
claim any relief from this Court contrary to law. It is also
asserted that if the M.I.D.C. was of the opinion that any
provision of a draft Regional Plan or the final Regional Plan, as
the case may be, needs any modification, then as the Special
Planning Authority, it ought to have carried out modification of
the Regional Plan under section 27 of the MRTP Act, with
- 29 -
approval of the GoM. The M.I.D.C. having failed to do that,
the P.M.R.D.A. from time to time has raised objections and
had even issued a stop work notice restraining GERA from
proceeding further with construction work but the same had
to be withdrawn on a technical ground of jurisdiction. There is
no illegality on the part of the P.M.R.D.A. in objecting to grant
of O.C./B.C.C. in favour of GERA. In such affidavit, a
reference has also been made to deliberation that took place
in course of meetings between the said P.M.R.D.A., M.I.D.C.,
Zilla Parishad, the local Municipal Corporation, etc.
35. The second affidavit is dated August 21, 2021, wherein
it is repeated that the layout of the M.I.D.C. is illegal because
it has not followed the procedure laid down under section 40
of the MRTP Act. A reference has also been made to the
affidavit dated August 13, 2021 of the U.D.D., GoM, which has
supported the stand of the P.M.R.D.A. Since the subject land
falls in the illegal layout prepared by the M.I.D.C. which
affects the ring road in part of the Pune Regional Plan, an
important project of the P.M.R.D.A., it is prayed that the Court
may not grant any relief to the petitioners.
- 30 -
U.D.D., GoM's CASE:
36. For over a period of time, the U.D.D., GoM did not
answer the Rule.
37. The indifference and apathy of the U.D.D., GoM noticed
by us led to an order dated August 10, 2021. We required the
GoM to file a short affidavit whether a ring road in and around
Pune, which was originally conceived in 1994 and forms part
of the Pune Regional Plan sanctioned on November 25, 1997,
is still a techno-economically feasible project; if the answer
were in the affirmative, the GoM was directed to indicate in
such affidavit a rough estimate of the total project cost and
the approximate time that could be taken for construction of
such ring road, excluding the time to be taken for acquiring
lands to be affected by such project. The GoM was also
directed to indicate the likely time to be taken for
demarcation and acquisition of lands.
38. In terms of such order dated August 10, 2021, an
affidavit of Mr. Bhushan Gagrani, the Principal Secretary (UD-
1), U.D.D., GoM dated August 13, 2021 has been filed.
- 31 -
39. Paragraph 1 of such affidavit suggests that the same is
not intended to be an affidavit-in-reply to W.P.-I. Since the
GoM had not answered the Rule, it could have latched on to
the opportunity of answering the Rule and obtained leave in
that behalf from the Court. The reason why the GoM elected
not to answer the Rule issued on W.P.-I is conspicuous by its
absence. What is all the more conspicuous by its absence is
the omission of the U.D.D., GoM to answer the specific
queries that it was required in terms of our order dated
August 10, 2021. In any event, the contents of the said
affidavit make interesting disclosures and, thus, we consider
it appropriate to reproduce the same hereunder:
"2) I say that the aforesaid Ring Road is proposed as
per the Notification dated 25/11/1997 declaring
the final Regional Plan for the Pune region, in
terms of the MRTP Act. It falls in the area of Pune
Metropolitan Region, which includes the area of the
Pune and Pimpri-Chinchwad Municipal
Corporations. By notification dated 07/09/2013,
the State Government has approved the roads
connecting to the aforesaid ring road. The
particulars of the said Ring Road are placed on
record by the respondent No.5 PMRDA. I say that
the aforesaid Regional Plan still subsists, holds the
field, which provides for development of the
aforesaid Ring Road, as reflected by the said
Regional Plan.
- 32 -
3) The City of Pune has developed beyond
imagination during the past two decades. It may
be appreciated that substantial traffic going to
Mumbai via Pune from Northern Maharashtra and
Southern Maharashtra passes through the city of
Pune. That puts a heavy burden on the flow of
traffic within the city of Pune. In order to ease this
traffic, the aforesaid Ring Road is proposed. This
Ring Road will divert heavy vehicular traffic passing
through Pune City. I further say that the aforesaid
Ring Road is going to provide easy access and
connectivity to the Airport at Lohgaon, Chakan
MIDC and various portions of the City of Pune.
Therefore, it has been decided to take up this
project on a priority basis.
4) The process of development of said Ring Road is
already initiated. The East portion of said 110 km
Ring Road from NH-65 to NH-48 has been taken
for development in 1st phase of Ring Road. For the
acquisition and the development 10 Town Planning
Schemes were proposed by PMRDA, out of which 5
Town Planning Schemes are in progress. They
provide for various amenities, which include the
Ring Road proposed in the Regional Plan.
5) After its constitution, during the First Meeting of
the PMRDA dated 28/12/2016 under the
Chairmanship of Hon'ble Chief Minister, the PMRDA
has given Administrative Approval of Rs.17,412/-
Crores for construction of Ring Road of 128 KM
length. The PMRDA is authorized to acquire land
for this purpose, raise funds, obtain Environmental
Clearance, etc. The Commissioner PMRDA is
authorized to appoint the Project Management
Consultant for this purpose.
- 33 -
6) I say that the total length of the aforesaid Ring
Road is 128.08 KMs, which includes stretch that is
common for the MSRDC and PMRDA. This common
portion between Parandwadi Interchange to Urse
(i.e. KM 126/080 to 128/080 or KM 0/00) as also
the portion between village Urse i.e. KM 0/00 upto
Solu Tal. Khed, Dist. Pune i.e. KM 38/00 running in
total 40 KMs has been handed over to MSRDC by
letter dated 31/05/2021.
7) In regard to the remaining length of 88.08 KMs, as
per the proposal dated 21/06/2021 from PMRDA
regarding modification in sanctioned Regional Plan,
the proposal to keep the road width up to 65 Mtrs.
is under consideration.
8) The details of this project are as under:
1) Total Length: 88.08 KMs
2) Total Width: 65 Mtrs (proposed)
3) Railway Bridges : 02 Nos
4) Over Bridges : 06 Nos.
5) Tunnels: 05 Nos
6) Major Bridges: 15 Nos
7) Minor Bridges : 03 Nos
8) RCC Box culverts: 140 Nos
9) Elevated Corridor/Structure: 37 Nos.
9) I say that for the purpose of a Detailed Project
Report (DPR) on 01/07/2017, IIC Technologies Ltd.
(Lead Member), Hyderabad in consortium with
Monarch Surveyors & Engineering Pvt. Ltd., Pune
and India International Infrastructure Engineers
Ltd, Banguluru is appointed as DPR Consultant and
the said Consultant has been given extension to
submit the Project Report up to 31/03/2022.
10) The Project is proposed to be developed in the
following manner:
- 34 -
Seg- Stretch Length Total Remarks
Ment in KM area of
land
required
for 65
Mtr
width
01 Solu to 38/00 to 29.25
Vadgaon 52/500 Hec
Shinde (4.50)
(Nirgudi)
02 Vadgaon 42/500 42.18 It is
Shinde to Hec proposed
(Nirgudi) to 48/990 that this
Pune-Nagar (6.49) 6.49 KM
Road Stretch is to
be developed
on PPP basis
and Tenders
are invited
for
appointment
of Consultant
03 Pune-Nagar 48/990 209.88
Road to to Hec
Pune-Satara 81/280
Road (32.290)
04 Pune-Satara 81/280 291.20
Road to to Hec
Parandwadi 126/080
Interchange (44.800)
Total 88.080 572.52
11) Out of the required 572.52 Hec land, the PMRDA is
in possession of 33.19 Hec. of lands. For the
implementation of this Project, PMRDA requires
land also for providing amenities. Taluka-wise
- 35 -
break-up of this required land is as under:-
Sr. Name of No.of Total Area required
No. the Villages Length on the basis of
Taluka (KM) 65 Mt width (H-
R)
1. Haveli 26 55.601 261-40
2. Maval 06 8.141 52-92
3. Mulshi 07 22.045 143.30
4. Khed 01 2.293 14-90
Total 40 88.08 572.52
12) I say that, PMRDA proposes to acquire land for the
aforesaid Ring Road by one of the following 3
Modes:-
A) Through the Town Planning Scheme
B) By giving TDR/FSI to landowners
C) Allotment of alternate land or direct purchase
13) I say that the Sec, 128 (1A) r/w the provisions of
Sec. 128(3) of the MRTP Act do not come into
picture unless the Special Planning Authority has
followed the provisions of Sec. 40 of the MRTP Act
and gets its plans for development of the acquired
land approved by the State Government.
Therefore, though the piece of land in issue in the
present matter was acquired by MIDC and the
said land vests in the State Government by virtue
of the provisions of the MIDC Act, the aforesaid
Regional Plan remains unaffected by such
acquisition and resultant vesting.
Hence, this Affidavit."
40. It is evident from a bare reading of the affidavit that the
Detailed Project Report (DPR) is yet to be received by the
- 36 -
P.M.R.D.A./U.D.D., GoM. There is no indication about the time
frame within which the project of the ring road is expected to
be completed. Although administrative approval of
Rs.17,412/- crore was given in 2016, details of the estimated
cost of the ring road project have not been shared. Most
importantly, the ring road having been conceived in 1994 and
Pune city having expanded since then beyond imagination,
there is not an iota of reference how far the project is techno-
economically feasible in present times.
CONTENTIONS OF THE PETITIONERS IN W.P.-I:
41. Mr. Tulzapurkar contended that the construction
undertaken by GERA is entirely legal and valid. In exercise of
powers conferred on it by law, the M.I.D.C. had granted
permission to build and so long breach of the building plan is
not noticed, question of denying the O.C. and the B.C.C. does
not arise.
42. Our attention was drawn to the MID Act and in particular
to section 1(3) thereof for contending that Chapter VI thereof
was brought into force in the State of Maharashtra w.e.f.
March 20, 1999 vide Notification dated March 19, 1999. In
- 37 -
terms of Chapter VI of the MID Act, the GoM acquired plots of
land including the subject land, for expansion of the Infotech
Park. Incidentally, Chapter VI of the MID Act is titled as
"Acquisition and Disposal of Land" and it has been the specific
contention of Mr. Tulzapurkar that all steps having been taken
by the GoM for acquisition of lands for the M.I.D.C. in exercise
of powers conferred by Chapter VI of the MID Act for the
expansion of the Infotech Park, the GoM cannot feign
ignorance at this distance of time and contend that the
M.I.D.C. has not placed any proposal before the U.D.D. in
accordance with section 40 of the MRTP Act.
43. Categorical assertion of Mr. Tulzapurkar has been that
because of the steps taken by the GoM under Chapter VI of
the M.I.D.C. Act to acquire plots of land for the M.I.D.C., in
law, the Regional Plan stood modified to the extent of such
acquired plots of land and the reservation made thereunder
ceased to have any effect; and the consequence of the said
plan ceasing to have effect is that the plots identified and
reserved for the ring road project, which had been acquired
for the purposes of the M.I.D.C., ceased to be under
- 38 -
reservation. The acquisition of the plots of land having been
effected in the year 2000 itself, the M.I.D.C. is right in saying
that it granted permission validly in the year 2004 and
onwards in respect of the project, conceived and designed in
furtherance of setting up of an Infotech Park on the plots of
land which were so acquired.
44. Further, our attention was invited to a Notification dated
March 19, 1999 whereby Chapter VI of the MID Act was
brought into force. Our attention was also drawn to show that
the particular areas appearing in such notification were
declared as 'industrial area' under section 2(g) of the MID Act.
45. Next, our attention was invited to a Notification dated
May 25, 2000 whereby intention of the Sub-Divisional Officer,
Maval Sub-division, Pune, in declaring the lands included in
the schedule thereto as acquired for the purpose indicated in
section 32(1) of the MID Act, was conveyed. While pointing
out to the plots of land included in the schedule, it was also
shown that the same included the subject land which was
acquired for expansion of the Pune Infotech Park (Hinjewadi);
that valid acquisition of lands was made by the GoM for the
- 39 -
purpose of development of the M.I.D.C, and thereby to
further the objects of the MID Act; and that the rights in
respect of the subject land had accrued in favour of
International Biotech Park Limited initially and in view of the
subsequent assignment, in favour of GERA to promote the
plan of Infotech Park at Hinjewadi, Pune.
46. Continuing his arguments further, Mr. Tulzapurkar
referred to section 128 of the MRTP Act. Our pointed attention
was invited to sub-sections (1A), (2) and (3) of section 128
and it was contended that if an acquisition has been resorted
to under the MID Act for a purpose different from the original
plan in terms of the power conferred by the MRTP Act, such
original plan would stand varied by reason of sub-section (3)
of section 128 of the MRTP Act; hence, the reservation under
the original plan would not hold good once the process of
acquisition of the plots of land under Chapter VI of the MID
Act is complete.
47. In this connection, Mr. Tulzapurkar referred to a letter
dated August 3, 2018 of the Executive Engineer, M.I.D.C.
addressed to the Commissioner of the P.M.R.D.A. The
- 40 -
Executive Engineer referred therein that the notification
issued by the U.D.D., GoM for 90. mtrs. wide ring road in the
Pune Regional Plan and sanctioned on November 25, 1997, is
yet to be implemented despite lapse of 19 years of such
sanction and that during such long period of time, number of
constructions had come up on the alignment of the proposed
ring road. It was further pointed out that allotments of plots
of land were approved on June 18, 2004 whereupon
companies like Infosys Limited, Wipro Limited, International
Biotech Park Limited, M/s. Emcure Pharmaceuticals, etc. had
commenced functioning and were contributing majorly in
employment generation, export and development of the State
as well as the nation. However, it was observed that some of
the I.T. company buildings, i.e., Infosys Limited, Wipro
Limited, Pune Dynasty Projects Pvt. Limited, Pune Embassy
Projects Pvt. Limited and commercial building of GERA were
coming in the alignment of the proposed 110 mtrs. wide ring
road as per the Pune Regional Plan. Considering that the
construction had come up as per the building plan approved
by the M.I.D.C. being the Special Planning Authority, it would
- 41 -
not be advisable to demolish the construction as the same
may be inappropriate. Since the allottees were not at fault
and that the demolition of the structures could create conflicts
between the M.I.D.C. and others, it was necessary to change
the proposed alignment of the 110 mtrs. wide ring road
outside the Infotech Park limits. The said letter also referred
to objections raised by the M.I.D.C. against alignment of the
proposed 110 mtrs. wide ring road vide letter dated
September 26, 2017. A caution was sounded that demolition
of the working I.T. units is likely to hamper growth and
development of the country and could stop employment
generation together with prospect of loss of employment of
the present employees. It was, accordingly, proposed to
change the current alignment of 110 mtrs. wide ring road
outside the Infotech Park limits.
48. Referring to the aforesaid letter dated August 3, 2018, it
has been contended by Mr. Tulzapurkar that the consequence
of dismantling a major part of the Infotech Park for making
way to facilitate construction and completion of ring road
would be severe not only for the IT companies that had grown
- 42 -
and spread their wings over the years but also that the
commercial building constructed by GERA in the meanwhile. A
special reference was made by him to the fact that GERA in
the course constructing the said building had incurred heavy
expenditure towards construction thereof and that in course
of official business had sold units in the said buildings to the
prospective occupiers who were waiting for the O.C. and the
B.C.C. to be issued to take over possession of the units
purchased by them. Not only that, certain purchasers have
moved the MahaRERA to seek legal remedies. It would,
therefore, be absolutely arbitrary on the part of the
P.M.R.D.A. to object to grant of the O.C. and the B.C.C. by the
M.I.D.C. to GERA. The original reservation ceases to apply to
the subject land because of the acquisition of lands made by
the GoM under section 32 of the MID Act resulting in variation
in the Pune Regional Plan for the ring road project.
49. The doctrine of 'desuetude' was thereafter pressed into
service by Mr. Tulzapurkar to contend that inaction or non-
action to implement the ring road project, which is part of the
Pune Regional Plan, for over two decades has resulted in
- 43 -
fading out of such project into 'desuetude' and losing force
thereby, notwithstanding that there has been no express
revocation of such plan. The decision of the Supreme Court in
Municipal Corporation for the City of Pune vs. Bharat
Forge Company Ltd., reported in (1995) 3 SCC 434, was
relied on in this context.
50. Mr. Tulzapurkar was next heard to contend that the GoM
having acquired the lands under section 32 of the MID Act,
such lands having been declared as 'industrial area' and the
M.I.D.C. having leased out the lands comprised in such
industrial area for the purpose of furtherance of the objects
for which it was brought into existence, it is too late in the
day either for the U.D.D., GoM or for the P.M.R.D.A. to
contend that the reservations made in the Pune Regional Plan
should be carried forward and that acquisitions and further
steps taken under the MID Act should yield to the Pune
Regional Plan. On the issue of non-implementation of the
Pune Regional Plan, reference was also made to section 127
of the MRTP Act relating to lapsing of reservations and it was
contended that reservations lapse after 10 years and since in
- 44 -
the present case more than double that period has lapsed
since the Pune Regional Plan was sanctioned by the GoM on
November 25, 1997 and without any activity having been
undertaken for construction of the ring road, the Court ought
to direct the M.I.D.C. to issue the O.C. and the B.C.C.
immediately; and, if at all necessary, may direct the U.D.D.,
GoM to align the proposed ring road in such a manner so that
the same does not infringe upon the property rights of GERA.
CONTENTIONS ON BEHALF OF THE M.I.D.C.
51. Dr. Sathe, learned senior counsel appeared for the
M.I.D.C. He advanced arguments in two tranches, first after
Mr. Tulzapurkar concluded his argument and once again
before Mr. Tulzapurkar argued in rejoinder. We propose to
record his arguments in a composite manner.
52. Inviting our attention to section 40 of the MRTP Act and
the amendment made therein by insertion of section 40(1A)
with effect from October, 1993, it was contended by Dr. Sathe
that the M.I.D.C. became the Special Planning Authority for
"the notified area" by statutory force whereas in terms of sub-
section (1) of section 40, an authority could be constituted or
- 45 -
development authorities appointed by the GoM, by notification
in the Official Gazette, for any undeveloped area specified in a
notification as "the notified area".
53. Referring to the Pune Regional Plan which was
sanctioned under section 15 of the M.R.T.P. Act on November
25, 1997, Dr. Sathe invited our attention to clauses MRPG 6
and MRPG 9. According to the former clause, the alignment of
new roads shown in the Final Regional Plan shall be
considered as tentative and it also enables necessary changes
in the alignment, if warranted, in the manner specified
therein; whereas, the latter clause provides that lands notified
by the M.I.D.C. in future for bona fide industrial purpose shall
be treated as if in industrial zone. It was, thus, contended by
him that alignment of new roads were tentative and the said
plan itself contemplated an 'industrial area' at the instance of
the M.I.D.C. in future, provided the same were for bona fide
industrial purpose.
54. Dr. Sathe next referred to the Notification dated May 25,
2000 whereby lands were acquired by the GoM for the
M.I.D.C. and emphasis was laid by him on the specific user of
- 46 -
land consequent upon acquisition, i.e., declared as acquired
for expansion of Pune Infotech Park (Hinjawadi). Based on the
same, it was contended that the Pune Regional Plan stood
modified once such notification was issued; and that with
possession of the acquired lands being handed over to the
M.I.D.C. on March 23, 2001, it had full authority in law to
allot lands for industrial purposes to interested companies.
Continuing further, it was contended that construction of
buildings on such acquired lands, which had earlier been
declared as 'industrial area' by the GoM, permitted by the
M.I.D.C. are perfectly valid in law.
55. While concluding, Dr. Sathe referred us to the judgment
authored by Lord Denning in John Neil Mouat vs. Betts
Motors Ltd., reported in Privy Council 1959 PLD 56, where in
view of the facts before it the Court had observed that the
importers having received certain letters were entitled to
assume that the right hand of the Government knew what the
left hand was doing, and therefore to assume that the
Director of Price Control knew that dealers had to exact a
special covenant and fixed the maximum price on that basis.
- 47 -
56. Dr. Sathe was heard once again advancing arguments
for the M.I.D.C. to clarify the position in view of the charge of
the U.D.D., GoM and the P.M.R.D.C. that the M.I.D.C. had
failed to follow the requirements of section 40 of the MRTP
Act. Refuting such charge, Dr. Sathe contended that
proposals, from time to time, were placed before the U.D.D.,
GoM which, having sanctioned/approved the same, initially
led to the Development Control Regulations, 1999 and upon
repeal thereof the Development Control Regulations, 2009
being duly notified. According to him, once such Regulations
were sanctioned/approved, any plan such as the Pune
Regional Plan would stand modified to the extent parts of
such plan were affected by reason of acquisition of lands
made by the GoM under the MID Act for the M.I.D.C.
CONTENTIONS ON BEHALF OF THE P.M.R.D.A.
57. Appearing for the P.M.R.D.A., Mr. Deshpande, learned
counsel contended that the P.M.R.D.A., since it came into
existence, has been following the MRTP Act in all earnestness
and its objection to grant of the O.C./the B.C.C. to GERA by
the M.I.D.C. rests on firm foundation. He referred to the
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provisions of sub-section (1A) of section 128 of the MRTP Act
and contended that in view of its opening words it is clear
that whatever is postulated by it would be subject to the
MRTP Act or the other provisions of law for the time being in
force. According to him, sub-section (1A) read with sub-
section (3) can have no effect unless the provisions of section
40 of the MRTP Act are, in terms, followed by the M.I.D.C.
Section 40 gives "the notified area" the status of a "new
town" and in terms of sub-section (3) thereof, the provisions
of Chapter VI shall, subject to the provisions of sections 40
and 41, apply mutatis mutandis to the Special Planning
Authority as they apply in relation to a Development
Authority, as if the notified area were a new town, but with
modifications as indicated in section 40 itself. While not
questioning the acquisition of land made by the GoM for the
M.I.D.C., he submitted that the requirement of sub-section
(4) of section 40 to give due regard to the Pune Regional Plan
ought to have been kept in mind; however, surprisingly, no
proposal was placed by the M.I.D.C. before the GoM despite
being fully aware of certain plots of the acquired land,
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comprised in "the notified area", falling in the alignment of
the proposed ring road. Since development permission had
been granted by the M.I.D.C. without due regard to the Pune
Regional Plan, question of attraction of the provisions of
section 128 to the present case does not and cannot arise.
He, accordingly, prayed for dismissal of W.P.-I qua the
P.M.R.D.A.
58. Mr. Deshpande submitted that looking at the provisions
of the MRTP Act, the Regional Plan is not automatically varied
by reason of acquisition of land under the MRTP Act. The
reason therefor is that section 128(1A) opens with the words
"save as otherwise provided in this Act or any other law for
the time being in force." Thus, sub-section (1A) of section
128 of the MRTP Act creates an altogether different category
of acquisition which is subject to relevant provisions of the
MRTP Act or any other law for the time being in force.
Significantly, sub-section (1A) of Section 128 does not begin
with a non obstante clause. Looking to the MRTP Act, section
40 cannot be ignored even while the land is acquired under
the MIDC Act. The process that is embodied in sub-sections
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(3) and (4) of section 40 of the MRTP Act not having been
undertaken by the MIDC, the question of sub-section (5)
thereof coming into operation does not and cannot arise.
CONTENTIONS ON BEHALF OF THE GoM
59. Mr. Pabale, learned AGP representing the GoM adopted
the submission of Mr. Deshpande and asserted that no
Development Plan under section 40 of the MRTP Act was ever
submitted by the M.I.D.C. and in view thereof, any
development permission granted by the M.I.D.C. in favour of
GERA or the other allottees of land comprised in "the notified
area" is of no consequence; and construction, if any, made in
the alignment of the proposed ring road cannot be allowed to
remain.
60. Responding to our query as to why the GoM chose not to
answer the Rule in W.P.-I, why no action was taken from the
side of the U.D.D., GoM to stop construction in the alignment
of the proposed ring road, what would be the effect of the
Development Control Regulations of the M.I.D.C.
approved/sanctioned by the GoM, and whether such
Regulations took shape upon the M.I.D.C. placing proposals
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before the GoM under section 40(3)(d) of the MRTP Act, Mr.
Pabale seemed to be in utter discomfort for want of
instructions.
CONTENTIONS ON BEHALF OF KAPIL
61. Mr. Anturkar appearing for Kapil submitted at the outset
that Kapil is only interested in protecting his property.
Presently, as the alignment of the proposed ring road stands,
Kapil is not affected at all. However, if the alignment is
changed once again (and there is every reason for Kapil to so
perceive) having regard to the minutes of meeting dated April
1, 2021, Kapil's agricultural lands standing on the edge of the
M.I.D.C. area could be affected.
62. Mr. Anturkar contended that the petitioners as well as
the M.I.D.C. have proceeded on a misconstruction of the
statutory provisions. According to him, the most crucial
provision is sub-section (3) of section 128 of the MRTP Act
and referring to the same, much emphasis has been laid by
him on the expression "shall be deemed to be suitably varied
by reason of acquisition of the said land". The emphasized
portion of section 128(3) is in the nature "of legal fiction", and
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is a limited deeming provision for achieving a "purpose". In
order to understand the meaning of this legal fiction, one has
to identify the "purpose" for which the legal fiction is
employed. Law, he has contended, is well-settled that
although full effect is required to be given to the legal fiction,
after identifying the "purpose" for which the legal fiction is
employed, by virtue of the rule of purposive interpretation, it
cannot be interpreted or permitted to travel beyond that
purpose. Reliance in this connection has been placed by him
on the decision of the Supreme Court in Nandkishore
Ganesh Joshi vs. Commissioner, Municipal Corporation
of Kalyan & Dombivali, reported in (2004) 11 SCC 417,
which has been affirmed in State of Karnataka vs State of
Tamil Nadu, reported in (2017) 3 SCC 362, as well as on the
decisions in Amazon.com NV Investment Holdings LLC vs
Future Retail Limited, reported in 2021 SCC Online SC 557,
and in Vineeta Sharma vs. Rakesh Sharma, reported in
(2020) 9 SCC 1.
63. Mr. Anturkar further submitted that the words "by
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reason of the acquisition of the said land" are most important
because they would indicate, what is the "purpose" for which
the legal fiction in sub-section (3) of section 128 is employed,
and the purpose of the legal fiction is to ensure suitable
variation only of those aspects of the relevant plan or
scheme, which have been necessitated "by reason of" viz. "on
account of" acquisition of the said land.
64. Elaborating his arguments, Mr. Anturkar submitted that
there are only three variations which are necessitated "on
account of" or "by reason of" acquisition of the said land, viz.
(a) the owner of the land is divested of his ownership rights
and ownership of the land changes in favour of the State
because the land vests in the GoM; (b) irrespective of the fact
that in the Regional Plan the land is in whichever zone, after
the acquisition, the land shall be deemed to be in the
"Industrial Zone"; and (c) the third is what is provided in sub-
section (2) of section 128, i.e., the consequence if the earlier
planning authority has spent any amount qua the acquired
land.
65. Further, it has been submitted by Mr. Anturkar that in
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order to understand the significance and importance of the
aforesaid noun clause, viz. "by reason of acquisition of the
said land", one has to firstly put that clause under an eclipse
and read sub-section (3) of section 128 without the aforesaid
noun clause, and then remove that eclipse and read sub-
section (3) with that noun clause. Also, he submitted that the
significance of that noun clause would clearly unfold that the
suitable variation contemplated by sub-section (3) of section
128 is only that variation which is necessarily occasioned by
reason of the acquisition of the said land, viz. the three
variations which are referred to above. All other variations are
outside the scope of section 128(3) and will be subsequently
done under section 40(3) of the MRTP Act.
66. Mr. Anturkar's further submission has been that
importantly, the verb used in sub-section (3) of section 128 is
"suitably varied"; and by no stretch of imagination, the word
"varied" can be understood or interpreted so as to mean that
the reservation automatically lapses. MRTP Act, according to
Mr. Anturkar, has used the word "varied" in section 92, section
92(proviso) and section 165(2), or "suitably varied" in section
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71(5) and section 128(3). It has further used the words
"property will be relieved from reservation" in sections 49(7),
50(3), 127(1) and 128(2). Further, the verb "lapsed" has
been used in sections 127, 48, 21(4A) and 48 and the words
"deemed to have lapsed" in sections 127, 37(1), 49(7)
58(37), "stand modified" in section 158(5) or "modified" in
sections 20(3), 28(1), 31(30, 31(1) third proviso, 40(3)(d),
51(1), 67, 79(1), 108(1), 120, 124(3), 157(1), "to substitute"
in sections 159A, First Schedule Cl.3(2), 3(2)(b), S.
40(3)(c)(ii), "to change" in sections 2(7), 18(1), 22A(1),
28(1) and 37(1AA)(a), "to amend" in sections 9(2)(b), 20(4),
37(1) and 70(1). It has also used verbs such as "amend" or
"change" or "substitute" or "alter".
67. After referring to all such statutory provisions where
different words/phrases/expressions carrying almost similar
meaning have been used, Mr. Anturkar contended that
whenever the Legislature in one enactment has deliberately
used different words/phrases/expressions, its intention is
clear, i.e., it did not intend to convey the same meaning, and
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for this reason separate/ different words have been used. As
submitted, whenever the MRTP Act wanted to say that the
reservation "has lapsed" or "the property is relieved from
reservation", it has expressly said so. The very fact that it has
not said so in section 128(3) is clearly indicative of the fact
that it never intended to convey that meaning and, therefore,
it has used a different word, viz. "varied". Similarly, wherever
the Legislature intended to say "to amend", "to substitute",
"to modify", "to change", it has expressly said so. To vary,
according to Mr. Anturkar, is indicative of a very minor type of
change, which is consequential in nature. All other phrases to
which he invited our attention, indicate the ladder upward
showing different level of changes. Thus, the very fact, that
the Legislature instead of using these phrases has used an
innocuous phrase like "to vary" and that too, to "suitably
vary", shows that it never intended that the Regional Plan
enbloc would become redundant or that the reservation in the
Regional Plan enbloc would "stand lapsed" as argued.
68. Mr. Anturkar, while countering the arguments on behalf
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of the petitioners, urged us to note the difference between
"lapsed" and "stand lapsed". The word "stand lapsed" is
indicative of an automatic lapsing. No such word is used in
the MRTP Act. The enactment has used phrases such as
"lapsed" and also "deemed to have lapsed". It was submitted
that by no stretch of imagination, the word "suitably varied"
could be interpreted so as to mean "stand lapsed".
69. While winding up, it was also submitted by Mr. Anturkar
that merely because the land becomes an Industrial Zone,
reservation does not automatically come to an end. In any
case, roads are needed even in the Industrial Zone also and,
thus, merely because by virtue of section 128(3) of the MRTP
Act, the land is included in the Industrial Zone, it cannot be
said that the reservation of the road has become so
inconsistent, with Industrial Zone, that the reservation would
automatically lapse, as argued.
70. After extensive arguments on the points of law, Mr.
Anturkar challenged the authority of the Chief Executive
Officer of the M.I.D.C. to write the letter dated November 2,
2020 referring to section 4 of the MID Act. According to him,
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the said officer exceeded his jurisdiction in so writing, without
taking any positive step to remove the constructions in the
alignment of the proposed ring road which was brought to the
notice of the M.I.D.C. by the P.M.R.D.A. repeatedly. It was his
contention that on the face of the letters of the P.M.R.D.A., it
is rather surprising that the M.I.D.C. is supporting GERA. He
even went to the extent of submitting that the M.I.D.C. and
GERA want illegalities committed in raising constructions in
the alignment of the proposed ring road to be sanctified by
the Court. If indeed M.I.D.C. has not committed any error in
sanctioning the building plan, it should go ahead with
issuance of the O.C./the B.C.C. to GERA.
71. Resting on the aforesaid contentions, Mr. Anturkar
prayed that W.P.-I, accordingly, be dismissed.
72. Appearing in support of W.P.-II, Mr. Anturkar submitted
that the cause of action for institution of the same may not
survive if W.P.-I is dismissed. However, if we are inclined to
direct the official respondents in W.P.-I to realign the proposed
ring road in terms of the decision taken in the meeting dated
April 1, 2021 and in so realigning Kapil's lands are acquired,
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certainly he would be a person aggrieved and entitled to
maintain W.P.-II for the relief as claimed by him.
ARGUMENT IN REJOINDER
73. Mr. Tulzapurkar argued that it is absurd for the GoM, the
P.M.R.D.A. and Kapil to contend that the acquisition of lands
under section 32 of the MID Act notwithstanding, such lands
cannot be used for the purpose for which the same had been
acquired because of the Pune Regional Plan. Once acquisition
of lands for the specified purpose was made, the provisions of
sub-sections (1A) and (3) of section 128 of the MRTP Act are
attracted with the result that the said plan is varied and no
further act is required in this behalf. Also, the M.I.D.C. having
placed proposals before the GoM which have since been
sanctioned/approved giving birth to the Development Control
Regulations, the Pune Regional Plan would stand modified in
terms of sub-section (5) of section 40. The provisions of law
are quite clear and no interpretative exercise of the nature
resorted to by his adversaries are called for in the
circumstances.
74. Insofar as the three variations referred to by Mr.
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Anturkar are concerned, it was argued that the argument is
irrelevant and untenable. According to Mr. Tulzapurkar, the
entirety of section 128 is to sub-serve a purpose of use
different from the original use; hence, variation referred to in
sub-section (3) of section 128 must also necessarily relate to
a purpose. What sub-section (3) envisages is that the purpose
for which reservation has been made in the Regional Plan
would stand replaced by the new purpose, no sooner
acquisition therefor, as referred to in sub-section (1A), is
made. As a corollary, it has been submitted that 'to the
extent required' for the 'industrial area' is the meaning to be
given to the expression "suitably varied"; if not, sub-section
(3) would be rendered meaningless.
75. Mr. Tulzapurkar cited the decision in Madanlal
Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills
Ltd. & Ors., reported in AIR 1962 SC 1543, for the
proposition that it is an elementary rule of construction that
the words used in a section must be given their plain
grammatical meaning and while dealing with two sub-sections
of a section, it is necessary that the two sub-sections are
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construed as a whole with "each portion throwing light, if
need be, on the rest"; also, that the two sub-sections must be
read as parts of an integral whole, and as being inter-
dependent, an attempt should be made in construing them to
reconcile them if it is reasonably possible to do so and to
avoid repugnancy. Also, the decision in Shri Ramtanu Co-
operative Housing Society Ltd. & Anr. vs. State of
Maharashtra & Ors., reported in (1970) 3 SCC 323, was
cited for the proposition that acquisition of lands for the
M.I.D.C. is a public purpose.
76. In conclusion, it was prayed that relief as claimed by the
petitioners ought to be granted.
ADJUDICATION
77. We are indeed tasked to resolve a tricky but broad issue,
i.e., whether, the Final Regional Plan for Pune Region (notified
on November 11, 1997) notwithstanding, the petitioners are
entitled in law to claim that the M.I.D.C. ought to be directed
to issue the O.C. and the B.C.C. for the said building
('Imperium Rise') constructed on land falling within portions
of the alignment of the proposed ring road? We are conscious
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of the absence of any authority on the interplay of the various
sections of the MID Act and the MRTP Act. Also, the situation
calls for keeping an eye on both public and private interest
which are intrinsically connected. Exploring a wise middle
path is sometimes considered a necessity; and that we did
attempt in fair and reasonable measure expecting that the
different authorities would resolve the issues, but had to
abort the same in view of the contentious stand of the
parties, leaving the issues for our decision. Required as we
are to adjudicate the merits of the rival claims, we need to
break away from the previous abortive attempts to reach a
workable solution and start on a clean slate. The path of
simple adherence to the mandate of law is what we propose
to tread, guarding against any prejudice or predilection
arising from such attempts.
78. To render an appropriate decision on these proceedings,
it would be convenient for us to first chronologically arrange
certain relevant but undisputed facts and circumstances which
we have culled out from the pleadings on record, then notice
the applicable law and interpret the same, and to ultimately
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apply the law to such facts and circumstances.
IMPORTANT EVENTS
i. A notification dated May 18, 1990 of the U.D.D.,
GoM was published in the Official Gazette dated
May 20, 1990, whereby for preparation of the
Regional Plan for Pune Region the Pune Regional
Planning Board was constituted under section
4(1) and (2) read with section 20 of the MRTP
Act.
ii. A draft Regional Plan for Pune Region, prepared
by the Planning Board under section 16(1) of the
MRTP Act, was published on September 30,
1993.
iii. On October 14, 1993, the M.I.D.C. was
appointed as the Special Planning Authority in
terms of section 40(1A) of the MRTP Act.
iv. The draft Regional Plan [at (ii) supra] was
accorded sanction on November 11, 1997 by the
GoM leading to the Final Regional Plan of Pune
Region being notified, to take effect from
February 10, 1998. Inter alia, a 90 mtr. wide ring
road with length of approximately 128 kms. was
proposed for the Pune Region.
v. A notification dated March 19, 1999 was
published in the Official Gazette notifying that in
exercise of power conferred by section 1(3) of
the MID Act, the GoM has appointed March 20,
1999 as the date from which Chapter VI thereof
would take effect in the area mentioned in
Schedule A annexed thereto and such area was
declared as 'industrial area' under section 2(g).
vi. By a further notification dated September 2,
1999 issued under sub-section (2) of section 32
of the MID Act, which was published in the
Official Gazette, opportunity was extended to
persons interested to object to the proposed
acquisition of lands for the 'industrial area'.
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vii. Finally, on May 25, 2000, another notification
under sub-section (1) of section 32 of the MID
Act was published in the Official Gazette
notifying that the lands mentioned in the
attached schedule, which were notified earlier for
the purpose of development of 'industrial area',
upon consideration of objections received are
declared as acquired for expansion of Pune
Infotech Park (Hinjawadi). The acquired lands
would cover approximately 400 acres of land
including few kms. of the proposed ring road.
viii. On March 23, 2001, possession of the acquired
lands was made over to the M.I.D.C.
ix. By a lease deed March 26, 2004 executed by and
between the M.I.D.C. and International Biotech
Park Limited, the former granted lease of 103.37
acres to the latter in Zones A to D, Pune Infotech
Park for a term of 95 years commencing from
March 26, 2004, together with right of renewal.
x. On August 31, 2009, Revised Development
Control Regulations made by the M.I.D.C. for the
'notified areas' as defined under section 40(1A)
of the MRTP Act were sanctioned by the GoM in
the U.D.D, to be enforced w.e.f. September 24,
2009, upon repeal of the Development Control
Regulations, 1999 sanctioned on January 7,
1999.
xi. International Biotech Park Limited on March 23,
2015 sought for permission of the M.I.D.C. to
transfer and assign Plot No.1B to the GERA.
xii. P.M.R.D.A. was constituted under section 42C of
the MRTP Act on March 31, 2015.
xiii. M.I.D.C., on August 24, 2015, accorded
permission to the aforesaid prayer of
International Biotech Park Limited.
xiv. A deed of assignment was executed on
December 16, 2015 by and between
International Biotech Park Limited and GERA in
respect of Plot No.1B, admeasuring 14,855 sq.
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mtrs. or thereabout, in pursuance whereof the
leasehold rights in respect of such plot were
acquired by GERA with the consent of the
M.I.D.C.
xv. On March 30, 2016, the M.I.D.C. in its capacity
as Special Planning Authority under the MRTP Act
granted additional F.S.I. to GERA upon receiving
payment in excess of Rs.23 crore.
xvi. Between April 12, 2016 and January 11, 2018,
from time to time, the M.I.D.C. sanctioned
building plan for the said building, i.e.,
'Imperium Rise'. Based thereupon, GERA
commenced construction.
xvii. On March 17, 2017 and September 13, 2019, it
is alleged by the M.I.D.C. (see: paragraph 4.1 of
affidavit dated April 19, 2021) and admitted by
the P.M.R.D.A. (see: paragraph 5 of affidavit
dated June 4, 2021) that by notifications of even
date, there has been modification of the Regional
Plan/the alignment of the proposed ring road.
xviii. A stop-work notice dated July 17, 2018 was
issued by the P.M.R.D.A. to GERA on the ground
that the under-construction building was coming
in the way of the alignment of the ring road.
xix. Immediately, the petitioners challenged this
notice in W.P.7910 of 2018 before this Court.
xx. On July 30, 2018, the P.M.R.D.A. by a
communication withdrew the stop-work notice on
the ground that the M.I.D.C. was the Special
Planning Authority.
xxi. This Court disposed of W.P. 7910 of 2018 on
August 1, 2018 as withdrawn, since by reason of
the communication dated July 30, 2018, the
grievance of the petitioners had been
substantially worked out.
xxii. In December, 2019, the petitioners completed
construction of the said building.
xxiii. On January 1 and March 6, 2020, the M.I.D.C.
granted final Fire NOC and plot boundary
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verification certificate to the petitioners,
respectively.
xxiv. M.I.D.C., on January 16, 2020, submitted a plan
with revised alignment for implementation but
the P.M.R.D.A. did not approve the same.
xxv. The petitioners applied for the O.C. and the
B.C.C. for the said building on March 11 and 12,
2020, respectively.
xxvi. Between July 13 and November 6, 2020,
reminders were sent and follow-ups made by the
petitioners for the O.C. and the B.C.C., but in
vain.
xxvii. The Chief Executive Officer of the M.I.D.C. on
November 2, 2020 although informed the
Principal Secretary, U.D.D., GoM that the O.C. is
being issued, no such certificate was issued.
xxviii. On January 19, 2021, W.P.-I was instituted with
prayers as noted above.
xxix. A meeting of the parties was convened on April
1, 2021, the minutes whereof are reproduced in
paragraph 30 supra.
xxx. On April 18, 2021, W.P.-II was instituted by Kapil
challenging the minutes of meeting dated April 1,
2021.
xxxi. Pursuant to a meeting convened on April 26,
2021 attended, inter alia, by the parties to these
proceedings, part O.C. was granted on June 10,
2021 in favour of the petitioners by the M.I.D.C.
on the terms and conditions mentioned therein.
THE APPLICABLE LAW
79. The applicable law for deciding the controversy are the
two local enactments which are dozens of years old albeit the
amendments as made from time to time, viz. the MID Act and
the MRTP Act. We shall presently note relevant provisions of
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the said laws for having a firm grip over the controversy and
in our pursuit to resolve the same strictly in accordance with
such laws.
80. However, before we commence our journey, we consider
it most appropriate to remind ourselves of the observations of
the Supreme Court in its decision in Reserve Bank of India
vs. Peerless General, reported in (1987) 1 SCC 424, as to
how a statute should be read. Since we intend to seek
guidance from paragraph 33 thereof, the relevant portion is
quoted below:
"33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this
knowledge, the statute must be read, first as a whole
and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at, in the
context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour
and appear different than when the statute is looked at
without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no
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word of a statute can be construed in isolation. Statutes
have to be construed so that every word has a place and
everything is in its place. ***"
81. While bearing the above observations in mind, let us
now turn to the MID Act first, since it is prior in point of time
to the MRTP Act.
MID Act:
82. To find out why the MID Act was enacted, reading its
preamble would make the task easy. It reads:
"An Act to make special provision for securing the
orderly establishment in industrial areas and industrial
estates of industries in the state of Maharashtra, and to
assist generally in the organization thereof, and for that
purpose to establish an Industrial Development
Corporation, and for purposes connected with the
matters aforesaid."
83. The MID Act is spread over eight chapters. We are
required only to read the relevant provisions therein.
84. Chapter I contains the customary provisions including,
inter alia, the definitions. We quote below definitions of some
of the important terms as used in the MID Act:
"2. In this Act, unless the context otherwise requires, -
(b) 'building' means any structure or erection, or part
of a structure or erection, which is intended to be used
for residential, industrial, commercial or other purposes,
whether in actual use or not;
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(e) 'development' with its grammatical variations,
means the carrying out, of building, engineering,
quarrying or other operations in in, or over or under
land, or the making of any material change in any
building or land, and includes redevelopment, but does
include mining operations; and 'to develop' shall be
construed accordingly;
(g) 'industrial area' means any area declared to be an
industrial area by the State Government by notification
in the Official Gazette, which is to be developed and
where industries are to be accommodated;
(h) 'industrial estate' means any site selected by the
State Government, where the Corporation builds
factories and other buildings and makes them available
for any industries or class of industries;
85. Chapter II provides for the establishment and
constitution of the M.I.D.C. In exercise of power conferred by
section 3 of the MID Act, the M.I.D.C. was established as a
body corporate and constituted with such of the members as
specified in section 4. The Minister for Industries, GoM, ex
officio, would be the Chairman of the M.I.D.C. Chapter III
provides for the functions and powers of the M.I.D.C. In terms
of section 14, it is the function of the M.I.D.C. to generally
promote and assist in the rapid and orderly establishment,
growth and development of industries in the state and in
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particular to, inter alia, establish and manage industrial
estates [as defined in section 2 (h)] at places selected by the
GoM and to develop industrial area [as defined in section 2
(g)] selected by the GoM for the purpose and make them
available for undertakings to establish themselves. Section
15, inter alia, confers power on the M.I.D.C. to lease, sell,
exchange or otherwise transfer any property held by it on
such conditions as may be deemed proper by it. What is
mandated by section 18 is that the M.I.D.C. would be bound
to follow and act upon general or special directions as to
policy given by the GoM for the purpose of carrying out the
purposes of the MID Act. Acquisition and disposal of land is
the subject of Chapter VI of the MID Act. As has been noted
above, Chapter VI was enforced w.e.f. March 20, 1999.
86. For the purpose of these proceedings, section 32 of the
MID Act is of significance and hence, is quoted below in its
entirety:
"32. Compulsory acquisition - (1) If at any time in the
opinion of the State Government, any land is required
for the purpose of development by the Corporation, or
for any other purpose in furtherance of the objects of
this Act, the State Government may acquire such land
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by publishing in the Official Gazette a notice specifying
the particular purpose for which such land is required,
and stating therein that the State Government has
decided to acquire the land in pursuance of this section.
(2) Before publishing a notice under sub-section (1),
the State Government shall by another notice call upon
the owner of the land and any other person who in the
opinion of the State Government may be interested
therein, to show cause, within such time as may be
specified in the notice, why the land should not be
acquired. The State Government shall also cause public
notice to be given in the manner laid down in section 53
and in the Official Gazette:
Provided that, if the land proposed to be acquired falls
within a Scheduled Area then the State Government
shall before such acquisition consult,-
(i) the Gram Sabha and the Panchayat concerned if
the land is falling within the area of one
Panchayat;
(ii) the concerned Gram Sabhas and the Panchayat
Samitee if the land is falling within the area of
more than one Panchayats in the Block
concerned;
(iii) the concerned Gram Sabhas and the Zilla
Parishad if the land is falling within the area of
more than one Block in the district concerned;
such consultation shall be carried out in the
manner as may be laid down by the State
Government by issuing a general or special order in
this behalf:
Provided that the decision taken by the majority
of the Gram Sabhas concerned by passing a resolution
in the above matters shall be binding on the
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concerned Panchayat Samiti or the Zila Parishad as
the case may be.
Explanation. - For the purposes of these provisos,-
(i) the expressions 'Gram Sabha' or 'Panchayat'
and 'Scheduled Areas' shall have meanings,
respectively, assigned to them in the Bombay
Village Panchayats Act, 1958;
(ii) the expressions 'Panchayat Samitee' and 'Zilla
Parishad' shall have the meaning, respectively,
assigned to them in the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 1961.
(3) After considering the cause, if any, shown by
the owner of the land and by any other person
interested therein, and after giving such owner and
person an opportunity of being heard, the State
Government may pass such orders as it deems fit.
(4) When a notice under sub-section (1) is published
in the Official Gazette, the land shall, on and from the
date of such publication, vest absolutely in the State
Government free from all encumbrances:
Provided that if before actual possession of such land
is taken by or on behalf of the State Government, it
appears for the State Government that the land is no
more required for the purposes of this Act, the State
Government may, by like notice, withdraw the land
from acquisition and on the publication of such notice
in the Official Gazette, the land shall revest with
retrospective effect in the person in whom it was
vesting immediately before the publication of the
notice under sub-section (1), subject to such
encumbrances, if any, as may be subsisting at that
time. The owner and other persons interested shall be
entitled to compensation for the damage, if any,
suffered by them in consequence of the acquisition
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proceedings as determined in accordance with the
provisions of section 33.
(5) Where any land is vested in the State
Government under sub-section (4), the State
Government may by notice in writing, order any
person who may be in possession of the land to
surrender or deliver possession thereof to the State
Government or any person duly authorised by it in
this behalf within thirty days of the service of the
notice.
(6) If any person refuses or fails to comply with an
order made under sub-section (5), the State
Government may take possession of the land, and
may for that purpose use such force as may be
necessary.
(7) Where the land has been acquired for the
Corporation or any local authority, the State
Government shall, after it has taken possession
thereof, by notification published in the Official
Gazette, transfer the land to the Corporation or that
local authority, as the case may be, for the purpose
for which it was acquired, and the provisions of
section 43-1A shall apply to any land so transferred."
MRTP Act:
87. It is now time to look at the MRTP Act. We may record
that a clear understanding of the relevant provisions thereof
would be the clinching factor.
88. Since the preamble of the MRTP Act makes the reason
for its enactment clear as crystal, we reproduce the same
hereunder:
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"An Act to make provision for planning the
development and use of land in Regions established for
that purpose and for the constitution of Regional
Planning Boards therefor; to make better provisions for
the preparation of Development Plans with a view to
ensuring that town planning schemes are made in a
proper manner and their execution is made effective;
to provide for the creation of new towns by means of
Development Authorities; to make provisions for the
compulsory acquisition of land required for public
purposes in respect of the plans; and for purposes
connected with the matters aforesaid."
89. Originally, there were 9 (nine) chapters in the MRTP Act
which came into force w.e.f. January 11, 1967. In due course
of time, Chapters III-A and VI-A have been inserted by
Amending Acts 25 of 2009 (w.e.f. August 25, 2009) and 16 of
1992 (w.e.f. August 10, 1992), respectively. Out of these 11
(eleven) chapters that comprise the MRTP Act, we need to
notice only a few of them which are absolutely relevant for
our purpose and not all.
90. From Chapter I of the MRTP Act titled 'Preliminary', the
meaning of certain terms as defined in section 2 thereof have
to be kept in mind while we read the other chapters. The
same read as follows:
"Section 2. In this Act, unless the context otherwise
requires, -
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(9) 'Development plan' means a plan for the
development or redevelopment of the area within the
jurisdiction of a Planning Authority and includes
revision of a development plan and proposals of a
special planning Authority for development of its land
within its jurisdictions;
(19) 'Planning Authority' means a local authority; and
shall includes (sic, include), -
(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed
under section 40; and
***
(23) 'Region' means any area established to be a
Region under section 3;
(24) 'Regional Board' or 'Board' means a Regional
Planning Board constituted under section 4;
(25) 'Regional plan' means a Plan for the development
or redevelopment of a Region which is approved by the
State Government and has come into operation under
this Act.
(27) 'Regulation' means a regulation made under
section 159 of this Act and includes zoning, special
development control regulations and other regulations
made as a part of a Regional Plan, Development plan,
or town planning scheme;"
91. Chapter II contains provisions relating to Regional Plans,
with sections 3 and 4 ordaining establishment of 'Region' and
constitution of 'Regional Planning Boards', respectively.
Sections 13 to 16 lay down, inter alia, the steps to be taken
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prior to preparation of the Regional Plan, its contents, and the
procedure to be followed in preparing the same and its
approval by the GoM. Section 17 requires publication of the
Regional Plan after approval and section 18 restricts change
of user of land or development thereof. Revision or
modification of the Regional Plan is permitted by section 20,
in the manner specified.
92. Chapter III is devoted to Development Plan. The
intendment of this chapter is that the Development Plan
ought to be prepared in accordance with the provisions of a
Regional Plan, if there be any, and in the manner laid down in
the other provisions thereof. Section 22 enumerates what the
contents of a Development Plan should be and we consider it
appropriate to reproduce only a part thereof hereinbelow:
"22. A Development Plan shall generally indicate the
manner in which the use of land in the area of a
Planning Authority shall be regulated, and also indicate
the manner in which the development of land therein
shall be carried out. In particular, it shall provide so far
as may be necessary for all or any of the following
matters, that is to say,-
(a) proposals for allocating the use of land for
purposes, such as residential, industrial, commercial,
agricultural, recreational;
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(b) proposals for designation of land for public
purpose, such as schools, colleges and other educational
institutions, medical and public health institutions,
markets, social welfare and cultural institutions, theatres
and places for public entertainment, or public assembly
museums, art galleries, religious buildings and
government and other public buildings as may from time
to time be approved by the State Government.
(g) proposals for designation of sites for service
industries, industrial estates and any other development
on an extensive scale."
93. Section 23 of the MRTP Act lays down the procedure to
be followed in preparing and sanctioning the Development
Plans. The other sections following it are also relatable to the
Development Plans but not being essential for a decision, are
not referred to in detail.
94. However, the next important provision to be taken note
of in Chapter III of the MRTP Act is section 40. Having regard
to the contentions raised before us by learned counsel for the
parties, in our view, section 40 has to be considered as the
most relevant provision. Although all sub-sections are not
relevant, we consider it appropriate to reproduce below the
said section in its entirety for facility of proper appreciation:
"40. Special Planning Authority for developing certain
notified areas.
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(1) The State Government may, by notification in the
Official Gazette for any undeveloped area specified in
the notification in this Act referred to as 'the notified
area' either-
(a) constitute an authority consisting of a
Chairman, a Vice-Chairman, a member of the
Maharashtra Legislative Assembly representing the
notified area, one member representing the
municipal area, if any, included in the notified area,
the Deputy Director of Town Planning, and the
Executive Engineer, Public Health Works Division,
each having jurisdiction over the notified area, and
an officer not below the rank of an Assistant
Collector; or
(aa) appoint the Authority constituted under the
Maharashtra Housing and Area Development Act,
1976, or
(b) appoint any Development Authority declared
under sub-section (3A) of section 113, or
(c) appoint the Bombay Metropolitan Region
Development Authority established under the
Bombay Metropolitan Region Development
Authority Act, 1974, to be the Special Planning
Authority for developing the notified area, or
(d) appoint the Metropolitan Region Development
Authority established under the Maharashtra
Metropolitan Region Development Authority Act,
2016.
(1A) Notwithstanding anything contained in sub-section
(i), any area where Chapter VI of the Maharashtra
Industrial Development Act, 1961 (hereinafter in this
section referred to as 'the said Act'), applies, or any
other area comprising Government land handed over to
the Maharashtra Industrial Development Corporation
established under section 3 of the said Act, shall be
deemed to be 'the notified area'; and the Maharashtra
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Development Corporation established under section 3 of
the said Act, shall be the Special Planning Authority in
respect of such notified area, and shall be deemed to
have been appointed as such under this section, for the
purposes of this Act:
Provided that, at any time, as provided in the first
proviso to sub-section (3) of section 1 of the said Act,
where the State Government by notification in the
Official Gazette, directs that the said Chapter VI shall
cease to be in force in that area or any part thereof,
from the date specified in such notification then from
such date, the said area or part thereof, as the case may
be, shall cease to be the notified area, and the
Maharashtra Industrial Development Corporation shall
cease to be the Special Planning Authority for the
purposes of this Act for such area or part thereof:
Provided further that, the provisions of clauses (e) and
(f) of sub-section (3) or of section 116, 117, 126, 127
and Chapter VIII shall not be applicable to such Special
Planning Authority.
(1B) Notwithstanding anything contained in sub-section
(1), the State Government may, by notification in the
Official Gazette, appoint any agency or authority created
by or in accordance with Government order or
instrument, or any company or corporation established
by or under any State or Central Law, to be the Special
Planning Authority for any notified area.
(2) The Chairman and Vice-Chairman of the Special
Planning Authority constituted under clause (a) of sub-
section (1) shall be appointed by the State Government;
but if any municipal area forms part of any notified area
then the President of the Municipal Council of such
municipal area shall be the Vice Chairman. The Officer
not below the rank of an Assistant Collector shall be the
Secretary and the Chief Executive Officer.
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(3) The provisions of Chapter VI of this Act shall, subject
to the provisions of this section and Section 41 apply
mutatis mutandis to the Special Planning Authority as
they apply in relation to a Development Authority, as if
the notified area were a new town, subject to the
following modification, namely:-
(a) in section 113-
(i) in sub-section (6) after the words 'Regional
Board' the words and figure 'with the modification
that section 8 shall not apply in relation to notified
area' shall be added;
(ii) to sub-section (8) the following proviso shall be
added, namely:
Provided that it shall not be necessary for a Special
Planning Authority to make any development plan
or town planning scheme for any notified area for
the purpose of carrying out its objects under this
Act. It may submit its proposals for the
development of the land in the notified area (being
land either vesting in it or land which has been
acquired or is proposed to be acquired under
section 116) as provided in section 115;
(b) section 113A shall be omitted;
(c) in section 114,-
(1) in sub-section (1),-
(i) the words, figures and letter 'subject to the
provisions of section 113A' shall be omitted;
(ii) in the proviso, for the words, brackets and
figures 'constituted under sub-section (2) of
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section 113' the words 'unless empowered by the
State Government so to do' shall be substituted;
(2) in sub-section (2) in the proviso, in clause (a)
for the portion beginning with the word
'constituted' and ending with the words 'such
Authority', the following shall be substituted,
namely:-
'and if both the Chairman and Vice-Chairman are
not available, with such officer or officers as may
be authorised by such authority.';
(d) for section 115 the following shall be substituted,
namely:-
'115: PLANNING AND CONTROL IN NOTIFIED
AREA.-
(1) A Special Planning Authority shall from time to
time, submit to the State Government its proposals
for the development of land (being land either
belonging to, or vesting in it or acquired or
proposed to be acquired under section 116), and
the State Government may, after consultation with
the Director of Town Planning, approve such
proposals either with or without modification.
(2) Before submitting the proposals to the State
Government, the Special Planning Authority shall
]carry out a survey and prepare an existing land-
use map of the area, and prepare and publish the
draft proposals for the lands within its jurisdiction
together with a notice in the Official Gazette and
local newspapers in such manner as the Special
Planning Authority may determine, inviting
objections and suggestions from the public within a
period of not more than 30 days from the date of
notice in the Official Gazette. The Special Planning
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Authority may, if it thinks fit, give individual notices
to persons affected by the draft proposals.
(3) The Special Planning Authority may after duly
considering the objections or suggestions, received
by it, if any, and after giving an opportunity to
persons affected by such draft proposals of being
heard modify its proposals, if necessary, and then
submit them to the State Government for its
approval. The orders of the State Government
approving such proposals shall be published in the
Official Gazette.';
(e) for section 116 the following shall be substituted,
namely:
'116: POWER OF SPECIAL PLANNING AUTHORITY
TO ACQUIRE LAND IN NOTIFIED AREA.-
Every Special Planning Authority shall have all the
powers of a Planning Authority under this Act as
provided in Chapter VII for the purposes of
acquisition of such land in the notified area as it
considers to be necessary for the purpose of
development in that area either by agreement or
under the provisions of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013, or any land adjacent to such area which is
required for the development of the notified area
and land whether adjacent to that area or not
which is required for provision for services or
amenities for the purposes of the notified area.';
(f) for Section 117, the following shall be substituted,
namely:-
'117: OBLIGATION TO PURCHASE LAND IN
NOTIFIED AREA.-
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Where any land has not been acquired within a
period of ten years from the date of notification
under sub-section (1) of section 40 any owner of
the land may by notice in writing served on the
Special Planning Authority, require it to acquire his
interest therein; and thereupon, the provisions of
Section 127 providing for 'lapsing of reservations
shall apply in relation to such land as they apply in
relation to land reserved under any plan under this
Act.';
(g) in section 122, in sub-section (1), the words,
brackets and figures 'constituted under sub-section (2)
of section 113' shall be omitted.
(4) In preparing and submitting its proposals for
developing any land under section 115 and in approving
them under that section, the Special Planning Authority
and the State Government shall take particular care to
take into consideration the provisions of any draft or
final Regional Plan, draft or final development plan or
any draft or final town planning scheme, or any building
bye-laws or regulations, which may already be in force
in the notified area or in any part thereof.
(5) Where any proposals for development of any land
are approved by the State Government under section
115, the provisions of the proposals approved by the
State Government shall be final, and shall prevail, and
be deemed to be in force, in such notified area; and to
that extent the provisions of any such plan or scheme
applicable to and in force in the notified area or any part
thereof shall stand notified by the proposals approved by
the State Government."
95. Section 40 is peculiarly drafted. Certain other provisions
of the MRTP Act are bodily lifted and incorporated therein with
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modifications, which makes it difficult for a reader. It would
have been desirable if the provisions that are lifted and
incorporated with modifications were broken into separate
sub-sections and made part of section 40. Be that as it may.
96. The next equally important provision deserving
consideration is Section 128 of the MRTP Act under Chapter
VII, titled 'Land Acquisition'. It reads as under:
"128. Power of State Government to acquire lands
for purpose other than the one for which it is designated
in any plan or scheme.
(1) Where any land is included in any plan or scheme
as being reserved, allotted or designated for any
purpose therein specified or for the purpose of Planning
Authority or Development Authority or Appropriate
Authority and the State Government is satisfied that the
same land is needed for a public purpose different from
any such public purpose or purpose of the Planning
Authority, Development Authority or Appropriate
Authority, the State Government may, notwithstanding
anything contained in this Act, acquire such land [under
the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
(1A) Save as otherwise provided in this Act or any
other law for the time being in force where any land
included in any plan or scheme as being reserved,
allotted or designated for any purpose therein specified
or for the purposes of a Planning Authority or
Development Authority or Appropriate Authority, is
being acquired by the State Government under the
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provisions of the Maharashtra Industrial Development
Act, 1961, for the Maharashtra Industrial Development
Corporation (being the Special Planning Authority
deemed to have been appointed as such under sub-
section (1A) of section 40, the provisions of sub-
sections (2) and (3) of this section shall mutatis
mutandis, apply to such acquisition proceedings.
(2) In the proceedings under the provisions of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
the Planning Authority or Development Authority or
Appropriate Authority, as the case may be, shall be
deemed to be a person interested in the land acquired;
and in determining the amount of compensation to be
awarded, the market value of the land shall be
assessed as if the land had been released from the
reservation, allotment or designation made in the (sic)
any plan or scheme or new town, as the case may be,
and the Collector or the Court shall take into
consideration the damage, if any, that Planning
Authority or Development Authority or Appropriate
Authority, as the case may be, may sustain by reason
of acquisition of such land under the provisions of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
or otherwise, and the proportionate cost of the
Development plan or town planning scheme or new
town, if any, incurred by such Authority and rendered
abortive by reason of such acquisition.
(3) On the land vesting in the State Government under
Section 38 or 40 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, as the case may be, the
relevant plan or scheme shall be deemed to be suitably
varied by reason of acquisition of the said land."
- 86 -
97. Chapter IX of the MRTP Act contains 'Supplemental and
Miscellaneous Provisions'. Section 159 forming part of the said
chapter confers powers on the authorities mentioned therein
the power to make regulations for carrying out the purposes
of the MRTP Act. For facility of convenience, we quote the
same hereinbelow:
"159. Power to make regulations:
(1) Any Regional Board, Planning Authority or
Development Authority may, with the previous approval
of the State Government, make regulations consistent
with this Act and the rules made thereunder, to carry out
the purposes of this Act, and without prejudice to the
generality of this power,-
(i) A Regional Board or a Development Authority
may make,-
(a) Regulations subject to which it shall exercise
powers and perform functions under this Act;
(b) Regulations for regulating its procedure and
the conduct of its business at its meeting;
(c) regulation providing for any other matter
which has to be or may be prescribed by
regulations;
(ii) a Planning Authority may make,-
(a) regulations prescribing the manner in which
its order under sub-section (1) of section 45 shall
be communicated to the applicant seeking
permission under that section;
(b) regulations prescribing the time within which
and the manner in which a notice shall be served
on the State
Government under sub-section (1) of section 49;
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(c) regulations providing for any other matter
which has to be or may be prescribed by
regulations.
(2) Subject to the provisions of this Act, the State
Government may, by notification in the Official Gazette,
make Special Development Control Regulations
consistent with this Act and the rules made thereunder,
for the purpose of implementing any Scheme, Project,
Programme or Policy, of the Central or the State
Government, in the whole or a part of the State.
(3) The State Government shall, before making such
Regulations prepare a draft thereof and publish a notice
in the Official Gazette stating the draft Regulations have
been prepared. The notice shall state that the names of
the places where a copy of such draft Regulations shall
be available for inspection by the public at all reasonable
hours mentioned therein and the copies thereof or any
extract therefrom, certified to be correct, shall be
available for sale to the public at a reasonable price; and
invite objections and suggestions from any person with
respect to the draft Regulations before such date as may
be specified in the notice. The notice shall also be
published in at least two newspapers having wide
circulation in the area to which the Regulations are to be
made applicable and also in such other manner as the
State Government may think fit.
(4) After considering the objections and suggestions
received by it, the State Government may approve such
draft Regulations with modifications or without
modifications, if any, as it may think fit, or decide not to
approve the same and shall publish a notification in the
Official Gazette stating that the Regulations have been
approved with or without modifications or have not been
approved, as the case may be. In case the Regulations
are approved, the notification shall specify therein the
date on which the Regulations shall come into operation.
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(5) Where Special Development Control Regulations
are made, the provisions of such Regulations shall be in
force in the area to which such Regulations are made
applicable and the provisions of any plan or scheme
applicable to and in force in such area or part thereof,
prior to the date of coming into force of such
Regulations under sub-section (4) shall, to the extent of
the provisions contained in such Regulations, stand
modified."
REASONS:
98. Having noticed the statutory provisions laying down the
scheme of Governmental policy, viz. to secure rapid but
orderly establishment and organization of industries in
industrial areas and industrial estates in the state on the one
hand, and, to have a well-planned development and use of
lands in the Regions of the state on the other, we now move
on to the main part of our judgment, i.e., the reasons for our
conclusions to rest on.
99. The factual narrative would reveal the respective stands
taken by the three sets of official respondents.
100. As noticed above, the U.D.D., GoM for quite some time
maintained a stoic silence. Mr. Pabale representing the U.D.D.,
GoM, we have recorded, was put to utter embarrassment for
want of appropriate instructions. As a matter of fact, the
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U.D.D., GoM chose not to answer the Rule. The reasons are
not far to seek. The U.D.D., GoM had failed to take effective
steps pursuant to the Pune Regional Plan, sanctioned on
November 25, 1997, by way of acquisition of lands in terms of
the provisions contained in Chapter VII of the MRTP Act for
the ring road project while, at the same time, it acquired the
plots of land in terms of section 32 of the MID Act to further
the objects of the M.I.D.C. which, in turn, proceeded to allot
plots of land to various companies for the purpose of setting
up of the Infotech Park as well as for expanding it. This has
resulted in creation of third-party interests and the problem
has indeed taken such serious turn that it is sort of a crisis
situation now. In the circumstances, without considerations of
any equity, a decision has to be given as to what the law
requires and whether the law has been followed, without
being unnecessarily troubled by the constructions that have
since come up in the alignment of the proposed ring road. If
the law has not been followed, the construction of the said
building raised by GERA has to be demolished.
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101. We may, at this stage, recall paragraph 33 of the
decision in Reserve Bank of India (supra), interpret the
relevant statutory provisions and apply the law irrespective of
who/what would be the casualty in the process.
102. To recapitulate, the sole reason appearing from the
affidavit filed on behalf of the U.D.D., GoM for supporting its
view of sub-section (1A) read with sub-section (3) of section
128 of the MRTP Act not coming into the picture is that the
M.I.D.C. had not followed section 40 of the MRTP Act. This
assertion is premised on the failure/omission of the M.I.D.C.
to obtain approval of the GoM for development of the
acquired lands.
103. Our discussion should start with section 128 of the MRTP
Act. The marginal note encapsulates what the contents of the
provision are all about. The section empowers the GoM to
acquire lands for a purpose other than the one designated in
any plan or scheme. Therefore, designation of a purpose in
any plan or scheme notwithstanding, the GoM has the power
to acquire lands for other purposes. Sub-section (1) is not
relevant for the present purpose. Sub-section (1A) having
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application insofar as the M.I.D.C. is concerned, however,
begins with the expression "(S)ave as otherwise provided in
this Act or any other law for the time being in force ...". We
propose to consider such expression immediately after
completing our discussion on how sub-sections (1A) to (3)
have to be construed. Sub-section (1A) of section 128 ordains
that provisions of sub-sections (2) and (3) thereof shall apply,
mutatis mutandis, to acquisition proceedings which the GoM
has initiated for acquiring lands under the MID Act for the
M.I.D.C., although such lands are included in any plan or
scheme as being reserved, allotted or designated for any
purpose therein. Since the provisions of sub-sections (2) and
(3) are to apply mutatis mutandis to proceedings for
acquisition under sub-section (1A), what is intended by the
legislature is to bring an idea of adaptation and make a
change, but so far only as it is necessary for the purpose of
the change, without altering the essential nature of the thing
changed. In other words, having regard to what is ordained
by sub-section (1A) and the purpose sought to be achieved by
sub-section (3), we hold that once the lands vest in the GoM
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free from all encumbrances under sub-section (4) of section
32 of the MID Act for an 'industrial area', the relevant plan
including the purpose for which any land included in such plan
has been reserved, allotted or designated, by reason of the
legal fiction, is "deemed to have been suitably varied" to the
extent of the purpose for which acquisition of lands under the
MID Act is made by the GoM. Any question as to whether the
Pune Regional Plan, or for that matter, the proposed ring road
project, automatically lapses because of such acquisition
under section 32 of the MID Act read with sub-section (1A) of
section 128 of the MRTP Act, does not and cannot really arise,
since the plan or scheme is "deemed" to be "suitably varied",
i.e., to the extent of the purpose for which the lands covered
by the subject acquisition is to be utilized, viz., selection and
declaration by the GoM of an area for setting up an 'industrial
area' for the purposes of the M.I.D.C.; and, thus, to such
limited extent, the reservation, allotment or designation in
any plan or scheme would be "deemed to be suitably varied"
as opposed to lapsing of the plan or scheme.
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104. At this stage, we may briefly identify the purpose for
which legal fiction is created by using the term "deemed".
This requirement arises in view of the decisions cited by Mr.
Anturkar on legal fiction.
105. There can be no dispute that when a statute creates a
legal fiction saying that something shall be deemed to have
been done which, in fact and truth, has not been done, the
Court has to examine and ascertain for what purpose and
between which persons such a statutory fiction is to be
resorted to, and thereafter the Courts have to give full effect
to such a statutory fiction and it has to be carried to its logical
conclusion.
106. The principle that can be culled out from the cited
decisions is that, it is the bounden duty of the Court to
ascertain the purpose for which the legal fiction has been
created and once such purpose is ascertained, it should be
carried to its logical conclusion by giving full effect. It is also
the duty of the Court to imagine the fiction with all real
consequences and instances, unless prohibited from doing so.
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107. Having regard to such settled law, the term "deemed" in
sub-section (3) of section 128 of the MRTP Act has to be read
in its context and further, the fullest logical purpose and
import are to be understood keeping in mind the object of the
legislation. The words "relevant plan or scheme" in sub-
section (3) came in substitution of the words "relevant draft
plan or scheme", pursuant to an Amendment Act of 1976.
Therefore, the word "draft" stands deleted with the
consequence that not only would the "relevant plan" in sub-
section (3) relate to a plan in draft form but also to a plan in
its final form. By reason of sub-section (1A) of section 128
ordaining mutatis mutandis application of, inter alia, sub-
section (3) to acquisition proceedings under the MID Act,
reference in sub-section (3) to "Section 38 or 40 of the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013" would have to be
read as "section 32(4) of the MID Act", because of the
change, and take the fiction to its logical conclusion, although
there may not have been, in fact and truth, variation of the
relevant plan by any action taken under section 20 of the
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MRTP Act. By virtue of user of the term "deemed", the
position in law seems to be inescapable that upon vesting of
the land in the GoM, the statutory fiction is to be resorted to
and by carrying it to its logical conclusion, the Pune Regional
Plan would be deemed to be suitably varied owing to
acquisition of land for the M.I.D.C. for furthering its objects
under the MID Act.
108. Mr. Anturkar's attempt to explain how the verb "varied"
in sub-section (3) of section 128 is to be construed in the
light of the other provisions in the MRTP Act, where the verbs
"modified", "altered", "lapsed", etc. have been used, is of little
impact. We need not indulge in an exercise on semantics in
ascertaining the meaning of the verb "varied" in the light of
the other referred verbs. Examining the provisions of sub-
sections (1A) and (3) not merely in semantics but in the
broader and more appropriate context of the Governmental
policy, aiming at planned development of Regions as well as
orderly growth of industries, coupled with the text and
context of the MRTP Act and the MID Act, leads us to the
inevitable conclusion that the plan or scheme, or for that
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matter to be specific, the purpose of reservation, allotment or
designation of any land comprised in a plan or scheme, would
have to give way to the purpose of the 'industrial area' which,
upon acquisition of land by the GoM, is declared as such by
none other than the GoM itself; and to the extent necessary
(this is because of the expression "suitably varied") and
subject, of course, to what is provided elsewhere in the MRTP
Act because of the opening words of sub-section (1A). As a
consequence, the plan or scheme by reason of the deeming
provision in sub-section (3) shall be deemed to be "suitably
varied" to give way to the purpose of orderly establishment
and development of industries in the notified area/industrial
area.
109. We may record that the thrust of Mr. Anturkar's
argument has been aimed at showing how the words "suitably
varied" in sub-section (3) of section 128 of the MRTP Act
ought to be construed. He, however, seems to have missed
the tree for the woods. Sub-section (3) of section 128 is not a
standalone provision. Being preceded by sub-section (1A), it
has always to be read in the light thereof. Thus read, the
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words "suitably varied" cannot have overriding effect over the
other provisions. Considering the provisions in sub-section
(1A) to the effect that to acquisition proceedings, initiated by
the GoM under the MID Act for the M.I.D.C., sub-section (3)
would apply mutatis mutandis leaves none in doubt of the
legislative intent. Not much argument was advanced by Mr.
Anturkar on the purpose of sub-section (1A) and the effect it
has on sub-section (3) for which we hold that his arguments
do not cover the entire gamut of either the statutory provision
or the legislative intent behind it. His argument based on sub-
section (3) of section 128 and how "varied" has been defined
in Law Dictionaries and how other verbs have ben used in the
MRTP Act pale into insignificance for the reasons we have
discussed above. His contention, therefore, stands rejected.
110. However, section 128 is not a provision which is a
charter for the M.I.D.C. to proceed in its own way once lands
are acquired under section 32 of the MID Act by the GoM for a
different purpose. The stage is now set for us to consider
what the opening words of sub-section (1A) connote. "Save
as otherwise provided in this Act or any other law for the time
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being in force ...", it has not been disputed at the Bar, would
mean that if there is any provision in the MRTP Act or in any
other law for the time being in force, expressly debarring
enforcement of sub-sections (1A), (2) and (3) or expressly
restricting its operation in any manner or from taking effect,
obviously section 128 has to yield to such other provision of
the MRTP Act or the other laws, as the case may be. We have
not been shown any express bar either in the MRTP Act or any
other laws for section 128 of the MRTP Act to take effect;
rather, it is common ground that the provisions in section 128
would be subject to the provisions of section 40 of the MRTP
Act. This obviously would necessitate looking for the
requirements laid down by section 40 that could act as
restrictions on section 128 having full effect and which the
M.I.D.C., as the Special Planning Authority, is statutorily
obliged to follow and whether the accusation of the U.D.D.,
GoM in its affidavit dated August 13, 2021 that the same has
not been followed, is justified or not.
111. Having read section 40 in between the lines, particularly
in the light of incorporation of other provisions of the MRTP
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Act therein (viz. section 115, providing for 'Planning and
control in notified area') for its applicability to a Special
Planning Authority like the M.I.D.C., we are of the opinion
that the entire section is not relevant here. It is only sub-
sections (1A), (3)(d) and (e), (4) and (5), which require
exercise of our minds.
112. Sub-section (1A) of section 40 carves out what "the
notified area" is, in respect whereof the M.I.D.C. would be the
Special Planning Authority. The lands covered by the
Notification dated March 19, 1999 comprise "the notified
area". As per sub-section (3), the provisions of Chapter VI of
the MRTP Act titled 'New Towns' shall apply mutatis mutandis
to the Special Planning Authority as they apply in relation to a
Development Authority, as if the notified area were a new
town, subject to the provisions in sections 40 and 41 and
subject to, inter alia, the modification of sections 115 and 116
as mentioned in clauses (d) and (e). Sub-section (4) requires
that the Special Planning Authority and the GoM while
preparing and submitting its proposals for developing any
land under section 115 and in approving them under that
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section, as the case may be, shall take particular care to take
into consideration the provisions of, inter alia, any Final
Regional Plan which may already be in force in the notified
area or in any part thereof. However, the mandate of sub-
section (5) is that if any proposal for development of any land
is approved by the GoM under section 115, the provisions of
the approved proposal shall be final and shall prevail, and be
deemed to be in force in such notified area; and to that
extent, the provisions of any plan or scheme applicable to and
in force in the notified area or any part thereof shall stand
modified by such proposal approved by the GoM (emphasis
supplied).
113. This being the scheme of section 40, we need to
examine the accusation of the GoM in paragraph 13 of its
affidavit (noted above) against the M.I.D.C.
114. Dr. Sathe has brought to our notice clauses MRPG-6 and
MRPG-9 of the Pune Regional Plan, published in the Official
Gazette dated November 25, 1997. In terms of the former
clause, the alignment of new roads shown in the Pune
Regional Plan shall be considered as tentative and it also
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enables necessary changes in the alignment, if warranted, in
the manner specified therein. The latter clause provides that
lands notified by the M.I.D.C. in future for bona fide industrial
purpose shall be treated as if in industrial zone. The term
'industrial zone' is, however, neither defined in the MID Act
nor in the MRTP Act; instead, we have noticed what an
'industrial area' and an "industrial estate" are in terms of the
MID Act.
115. Dr. Sathe has also placed on record the Revised
Development Control Regulations framed by the M.I.D.C. and
approved by the GoM. It would be convenient for us to
reproduce the terms of the Notification dated August 31, 2009
issued by the U.D.D., GoM, upon revision of the earlier
Development Control Regulations approved vide Notification
dated January 7, 1999. The same reads as under:
"URBAN DEVELOPMENT DEPARTMENT
Mantralaya, Mumbai 400 032, dated 31st August, 2009
NOTIFICATION
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT,
No.TPB/4308/465/CR-64/08/UD-11.- Whereas, the
Government of Maharashtra in exercise of the powers
conferred by sub-section (1A) of section 40 of
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Maharashtra Regional and Town Planning Act, 1966,
(hereinafter referred to as "the said Act") has
appointed Maharashtra Industrial Development
Corporation (MIDC) as a Special Planning Authority
(hereinafter referred to as "the said Authority");
And whereas, in exercise of the powers conferred
by the provision of the said act and all other powers
enabling it in this behalf the said Authority has
prepared the Development Control Regulation
(hereinafter referred to as "the said Regulations") for
the notified areas of MIDC;
And whereas, vide section 115(1) of the said Act,
the Urban Development Department, Government of
Maharashtra has sanctioned the said regulation vide
notification No. TPB/4395/353/CR-135/95/UD-11,
th
dated 7 January 1999;
And whereas, the said Authority felt necessary to
revise the said regulations and the said Authority in
their Meeting No.314, dated 7th September 2007 vide
Resolution No.4401 has approved to revise the said
regulations;
And whereas, consulting the various organization
and Industrial Association, MIDC has prepared the
Draft Revised Regulation;
And whereas, after publication of Draft Revised
Regulation u/s 115(2) and after considering the
suggestions and objections received by it, the said
Authority has accorded their approval to draft Revised
D.C. Regulations vide meeting No.322, dated 24th July
2008;
And whereas, the said Authority vide its letter
No.2195, dated 18th September 2008, has submitted
the said Revised Development Control Regulations to
Government for sanction;
And whereas, Government of Maharashtra after
consulting the Director of Town Planning, has came
(sic, come) to the conclusion that the said Revised
Development Control Regulations shall be sanctioned
with certain charges (sic, changes) as appended in the
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schedule hitherto.
Now, therefore, Government of Maharashtra
hereby accords it's sanction to the said Revised
Development Control Regulations as per the powers
conferred under section 115 of the said act, and the
said regulations shall come into force from the date of
it's publication in the Official Gazette.
Note.- A set of Development Control Regulations is
available for inspection and sale of the general public
during office hours in the all offices of M.I.D.C."
116. The notification was published in the Official Gazette on
September 24, 2009 and, therefore, the Revised Development
Control Regulations came into force with effect from that
date.
117. It is clear on a bare reading of the Notification dated
August 31, 2009 that in exercise of power conferred by the
modified version of section 115, since incorporated in section
40(3)(d) of the MRTP Act, and after consultation with the
Director of Town Planning, the GoM accorded sanction to
revise the earlier Development Control Regulations, 1999,
which led to publication of the Revised Development Control
Regulations by the Notification dated August 31, 2009.
Although the notification only refers to section 115 as the
enabling power, we find from the preamble to the said
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Revised Development Control Regulations that the M.I.D.C.,
being the Special planning Authority for the "notified areas"
as defined in sub-section (1A) of section 40, had evidently
exercised the power conferred by clause (d) of sub-section
(3) of section 40, which includes modified section 115, as
applicable to a Special Planning Authority like the M.I.D.C.
This position stands fortified from the recital in the
Notification dated August 31, 2009 that the draft Revised
Regulations under sub-section (2) of section 115 was
published and suggestions/objections received by the M.I.D.C.
were considered.
118. According to Dr. Sathe, the proposals offered by the
M.I.D.C. in terms of sub-section (1) of section 115, upon
being approved by the GoM, took shape and got transformed
into the Revised Development Control Regulations which the
U.D.D., GoM notified on August 31, 2009 by the aforesaid
notification and the said notification itself was published in the
Official Gazette on September 24, 2009.
119. Indeed, section 40, or for that matter section 115
incorporated in section 40, make no reference to any
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Regulation. The power to make Regulation is conferred by
section 159 of the MRTP Act. Although, of course, a special
planning authority in terms of sub-section (1) of section 159
is also empowered to make regulation consistent with the
MRTP Act and for carrying out the purposes of such Act,
section 159 has not been referred to as the source of the
power. The GoM too, while sanctioning/approving the draft
Revised Regulations, has not invoked its power under sub-
section (1) of section 159. The well-settled principle of law
that mere omission to refer to the source of power or
erroneous reference to any provision does not vitiate an
action, so long the power is otherwise available under the law,
is not attracted here. Bearing in mind that the Revised
Development Control Regulations have been framed in
exercise of power conferred by section 40 of the MRTP Act
and regard being had to the definition of "Development Plan"
in section 2(9) thereof, we are inclined to the view that the
Revised Development Control Regulations are more in the
nature of a Development Plan regulating development of
areas covered by such plan, rather than a Regulation, the
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contents whereof are consistent with the provisions of section
22 of the MRTP Act.
120. Coming back to the accusation of the U.D.D., GoM that
section 128 is not applicable because the M.I.D.C. did not
follow section 40 by placing proposals before the GoM, we
need to deal with the same considering the developments as
noted in the Notification dated August 31, 2009 as well as the
contents of the Revised Development Control Regulations.
The noun in plural "proposals" or the expression "proposals
for the development of land" have not been defined in the
MRTP Act. In common parlance, a 'proposal' is a plan or
suggestion, especially a formal or written one, put forward for
consideration by others. The M.I.D.C. having placed its
proposal for revising the earlier Development Control
Regulations before the GoM for approval, can it be said that
section 40 was observed in the breach so as not to attract the
rigours of section 128? The M.I.D.C. in forwarding the draft of
the Revised Regulations having followed the provisions in sub-
sections (2) and (3) of section 115, as incorporated in section
40, can it be alleged that the provisions of section 115 stand
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breached? The answers to the above cannot but be in the
negative.
121. The Revised Development Control Regulations in its Part
II and in clause 17.1 'Classification of land-uses' thereunder,
has 'Industrial' land-use as one of several classes of land-
uses. Clauses 18 to 22 thereunder deal with different aspects
of such land-use. In fact, such Regulations appear to be a
complete code in itself that has been conceived and designed
not only for the purpose of orderly establishment and
organization of industries but optimum use of the facilities on
offer. True, the Revised Development Control Regulations do
not specifically refer to any land in particular but sight cannot
be lost of the fact that in terms of clause 1.2, the same would
be applicable to all development activities in the "notified
areas" under the jurisdiction of the M.I.D.C. The U.D.D., GoM
while considering the draft of the Revised Regulations appears
to have consulted the Director of Town Planning too as per the
mandate of sub-section (1) of section 115. Since such
provision refers to "proposals for development of land", the
U.D.D., GoM must be presumed to have proceeded to approve
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the draft of the Revised Regulations as if it were a proposal
from the M.I.D.C. and that too, the same had been generated
after compliance with the provisions in sub-sections (2) and
(3) of section 115. Also, in the absence of anything to the
contrary, the Revised Development Control Regulations ought
to be presumed to have been prepared by the M.I.D.C., and
approved by the GoM, upon taking note of the Pune Regional
Plan dated November 25, 1997. Thus, it can safely be held
that not only the M.I.D.C. but also the GoM strictly adhered to
the mandate of sub-section (4) of section 40 of the MRTP Act.
In any event, it has not been claimed by any of the
respondents, viz. the GoM, the P.M.R.D.A. or Kapil, that the
Revised Development Control Regulations had been
sanctioned/approved by the GoM without any proposal
received from the M.I.D.C. At this distance of time and when
no other plausible explanation is forthcoming from the side of
the U.D.D., GoM or any other party, we cannot allow any
accusation that has been flung, for argument's sake, to colour
our views for saving an important project, such as the ring
road, from facing hurdles in its way at the cost of
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buildings/structures that have been built in accordance with
building plans sanctioned by the M.I.D.C. on the basis of the
laws that govern it. We are, thus, left with no other option but
to hold that the accusation from the side of the U.D.D., GoM
of the M.I.D.C. not having followed the provisions of section
40 of the MRTP Act for attracting section 128 thereof, has
been hurled to be rejected. If indeed there was any breach of
the statutory provisions, we wonder whether the U.D.D., GoM
would have at all at sanctioned/approved the Revised
Development Control Regulations; also, whether it would have
allowed other industries to come up and occupy a part of the
alignment for the ring road project. We wish, the GoM had
woken up from its slumber while constructions in the
'industrial area', falling within the alignment of the proposed
ring road, were in progress. If while in slumber it has allowed
the same, it must be regarded as a tacit approval of the
projects undertaken in such 'industrial area'. The specificity of
facts and a consistent course of action of the GoM of
disapproving what had been proposed by the M.I.D.C. (for
development of land within the "notified areas", to be used for
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industries), convincing enough to draw the inference that law
was breached being conspicuous by its absence, the exercise
of power by the U.D.D., GoM under sub-section (1) of section
115 in sanctioning/approving the Revised Development
Control Regulations cannot be seen to be an idle ritual, bereft
of reality.
122. We repeat, the GoM had all the time at its disposal to
acquire land for the ring road project ever since the Pune
Regional Plan was published in the Official Gazette on
November 25, 1997. Instead, the GoM acquired land under
section 32 of the MID Act for the M.I.D.C. The subject land
was one among many plots specifically acquired for the
purpose of setting up the Infotech Park. Viewed in the light of
sub-section (1A) of section 128 of the MRTP Act, such
acquisition was a permissible course of action for the GoM and
having regard to compliances with the provisions of section
115, as incorporated in section 40, we also have no hesitation
to hold that the provision in sub-section (5) of section 40
would spring into life and render the Pune Regional Plan
modified to the extent of approval of the proposals for
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development of land by the GoM under sub-section (1) of
section 115.
123. The logical conclusion that can thus be drawn from the
above discussion is that the U.D.D., GoM and the P.M.R.D.A.
are incorrect in their understanding of the legal provisions and
have no authority in law to object to issuance of the O.C. and
the B.C.C. in favour of GERA.
124. Apart from the discussions on the relevant provisions of
law, it needs to be realized by one and all that strict
adherence to the Pune Regional Plan (which contemplates a
ring road but the alignment whereof was to be considered
tentative as per the said plan) by turning a blind eye to what
has happened over the years post such plan and what have
been achieved post the acquisition of lands under section 32
of the MID Act, would not only be a cause of embarrassment
but could cost the GoM heavily, not only in terms of money,
but by retarding the growth of the Infotech Park itself
together with all other ancillary industries. It is in such
circumstances that the issue ought to be given a quietus.
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125. The point canvassed by Mr. Tulzapurkar by relying on the
doctrine of 'desuetude', however, does not impress us. On
facts, it is evident that the Pune Regional Plan was notified on
November 25, 1997. It is also evident from the affidavit of
U.D.D., GoM that some steps have been taken in terms of
such plan after the birth of P.M.R.D.A. to acquire lands for the
proposed ring road project. The hiatus between the two is
not so wide that it would attract the aforesaid doctrine. The
contention, accordingly, is overruled.
126. Before parting, we may also make a brief reference to
the conduct of the P.M.R.D.A. in first issuing the stop-work
notice dated July 17, 2018 and then withdrawing such notice
on July 30, 2018, thereby preempting a decision on the
petitioners' earlier writ petition. Had it not sou motu
withdrawn the notice, despite being aware of the said building
coming up within the limits of the ring road project, the issue
could have been thrashed out three years back. The conduct
of the P.M.R.D.A., thus, hardly inspires confidence.
127. It is now time to examine the subject matter of
challenge in W.P.-II. The minutes of meeting dated April 1,
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2021 have been questioned by Kapil, as noted above,
apprehending that giving effect to the decision recorded in
such minutes could abrogate his property rights. Such
meeting had been convened in pursuance of a previous order
dated March 3, 2021 passed by us to explore a workable
solution. Now that we have almost concluded the process of
deciding W.P.-I on its own merits having regard to our reading
and understanding of the relevant laws and we do not
propose to make any direction to any of the authorities, who
are respondents before us, to give effect to the decision
arrived at in such meeting, no right of Kapil can be said to
have been breached warranting interdiction by the writ court.
As on date, there being no valid decision taken by the GoM
with regard to further re-alignment of the ring road that could
prejudicially affect Kapil's property rights, the cause of action
for instituting W.P.-II does not survive.
128. Insofar as I.A.-I and I.A.-III are concerned, we had while
reserving judgment on W.P.-I and W.P.-II, observed that such
applications for intervention do not deserve to be entertained
and that the applicants would be given liberty to pursue their
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remedies in accordance with law, for the reasons to follow.
129. As noticed above, the allegations in the said two
applications are that in constructing the said building, GERA
has encroached the agricultural lands of the applicants and
that there has been no acquisition thereof in accordance with
law; consequently, allegations have been levelled that the
applicants stand deprived of compensation payable according
to law.
130. Insofar as W.P.-I is concerned, such applicants have no
right to intervene. Having regard to the nature of disclosure
made by the said applicants in I.A.-I and I.A.-III that have left
them aggrieved and the reasons which we have assigned
hereinabove on the contentious issue, we see no reason as to
why they should be allowed to participate in the proceedings
of W.P.-I. Certainly, the writ court is not expected to examine
whether in raising construction of the said building GERA has
encroached any adjoining property. That is a matter which
ought to be left for consideration of the M.I.D.C. while it
would proceed to issue the O.C./the B.C.C. in respect of the
said building. If at all the allegation of encroachment of
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agricultural lands of the applicants by GERA is correct, the
remedy of the applicants lies in approaching the appropriate
civil court for declaration and injunction.
131. It is also on record that the applicant in I.A.-III has
approached the MahaRERA for redressal. If that is the
admitted case and the MahaRERA has the jurisdiction and
competence to grant relief to the applicant in I.A.-III, it would
be open to him to seek appropriate remedy before the
MahaRERA in accordance with law.
132. We have also observed on August 24, 2021 (when
judgment was reserved) that we would allow Kapil to
intervene since he had instituted an independent proceeding
by way of W.P.-II to ventilate his grievance against the
minutes of the meeting dated April 1, 2021. In view of the
findings that we have recorded above in the course of our
discussion, on the relevant laws, we see no reason to pass
any further order on I.A.-II.
CONCLUSION
133. For the foregoing reasons, we pass the following order:
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ORDER
(I) I.A. No.959 of 2021 stands allowed.
(II) I.A. No. 768 of 2021 and I.A. No.1426 of 2021 stand
dismissed with liberty to the respective applicants to
pursue their legal remedies before the appropriate forum
in accordance with law.
(III) Insofar as W.P.-I (Writ Petition No.896 of 2021) is
concerned,
(a) the Rule in W.P.-I is made absolute; and
(b) it is directed that the M.I.D.C. and its officers shall
be under an obligation to grant Occupancy
Certificate and Building Completion Certificate to
the petitioners in respect of the building 'Imperium
Rise', if the same has been constructed in
accordance with the sanctioned building plan(s),
upon completion of all legal formalities within a
period of three months from today.
(IV) Regarding W.P.-II (Writ Petition St.No.9531 of 2021), it
is directed that:
(a) the same stands disposed of with the observation
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that the cause of its institution does not survive in
view of the reasons assigned by us for making the
Rule in W.P.-I absolute;
(b) however, the petitioner in W.P.-II shall be at liberty
to seek legal remedy in accordance with law, if at
all as a result of future re-alignment of the ring
road, his property rights are affected.
134. The parties shall bear their own costs.
(G.S. KULKARNI, J.) (CHIEF JUSTICE)
PRAVIN
DASHARATH
PANDIT
Digitally signed by
PRAVIN DASHARATH
PANDIT
Date: 2021.11.22
20:48:30 +0530
