Bombay High Court
Atur Park-4 Co-Operative Hsg. ... vs State Of Maharashtra And Ors on 19 April, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-AS:11849-DB
Shubham Talle
judgment in WP 10400-2019 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10400 OF 2019
Atur Park-4 Co-operative Housing ]
Society Limited, a Co-operative Society ]
registered under the provisions of the ]
Maharashtra Co-operative Societies Act ]
Being its Registered Office at:- Pune ]
Registration No. PNA/PNA(2) HSG(TC)/ ]
7832/2005-06, registered Office at ]
CTS11/1, Survey No. 477/A/B, 478/A/B.C.]
D1/D2, Naylor Road, Off Magaldas Road ]
Pune- 411052 ]
through its power of Attorney holder ]
M/s Atur Sangtani and Associates ]
through its partner, Rajiv Sangtani, ]
th
Age 41, Occ. Business, Address 6 floor, ]
Atur Chambers, 24, Moledina Road ]
Pune- 411001 ] ... Petitioner
Versus
1. The State of Maharashtra ]
(summons to be served on the learned ]
Government Pleader appearing for State]
of Maharashtra under Order XXVII, ]
Rule 4,of the Code of Civil Procedure ]
1908 ]
2. The Special Land Acquisition Officer ]
No. 15, Corporation Ward Officer ]
Jawahar Nehru Stadium, Tilak Road ]
Pune- 411030 ]
3. Collector, Pune, through Office of ]
PLAQ, Collector Compound, ]
Pune- 411001 ]
4. The Asstt. Director of Town Planning ]
1 /33
::: Uploaded on - 19/04/2023 ::: Downloaded on - 20/04/2023 13:02:14 :::
Shubham Talle
judgment in WP 10400-2019 (final).doc
Pune Municipal Corporation, Shivaji ]
Nagar, Pune -411005 ]
(summons to be served on the learned ]
Government Pleader appearing for State]
of Maharashtra under Order XXVII, ]
Rule 4,of the Code of Civil Procedure ]
1908 ]
5. Municipal Commissioner, ]
Pune Municipal Corporation, Shivaji ]
Nagar, Pune- 411005 ]
6. The Assistant Commissioner ]
Land and Estate, ]
Pune Municipal Corporation, Shivaji ]
Nagar, Pune- 411005 ]
State of Maharashtra ]
7. Deputy Municipal Commissioner ]
(Land Acquisition) ]
Municipal Corporation ]
Pune-411005 ]
8. The Executive Engineer ]
Building Development Control Dept ]
Zone IV Pune Municipal Corporation, ]
Pune- 411005 ]
9. The City Survey Officer No. 2 ]
Mamledar Kacheri, Shukrawar Peth ]
Pune-411042 ] ... Respondents
******
Mr. Gaurav Potnis a/w Ms. Amrita Kharkar i/b P.H. Potnis, Advocate
for the Petitioner.
Ms. S.S. Bhende, AGP for Respondent Nos. 1 to 3 and 9/State.
Mr. Rishikesh M. Pethe, Advocate for Respondent Nos. 5 to 8.
Mr. Nitin Desphande, for Inervenor-Atur Park Co-op Housing Society
Ltd.
2 /33
::: Uploaded on - 19/04/2023 ::: Downloaded on - 20/04/2023 13:02:14 :::
Shubham Talle
judgment in WP 10400-2019 (final).doc
******
CORAM: R. D. DHANUKA AND
M.M.SATHAYE , JJ.
RESERVED ON: 16th FEBRUARY 2023
PRONOUNCED ON : 19th APRIL 2023
JUDGMENT [ Per M.M.SATHAYE, J.]
1. Rule. Learned AGP waives service for Respondent Nos.
1 to 3 and 9. Mr. Pethe, learned Advocate waives service for
Respondent Nos. 5 to 8. Mr. Desphande appears for Atur Park Co-op
Housing Society Ltd. (Intervenor) who was permitted to attend final
hearing and make submissions if necessary, under Order dated
23/02/2021 in Interim Application No. 353 of 2021. Rule is made
returnable forthwith. The Petition is heard finally by consent of the
parties.
2. This is a Petition filed ostensibly by the Society but
through Power of Attorney holder Developer through its partner,
under Article 226 of the Constitution of the India, seeking a writ of
mandamus directing Respondents (State Government and Pune
Municipal Corporation Authorities) to acquire an area of 1891.85 sq
mtrs, comprising of 15.70 mtrs wide strip of land on the south side
of CTS No. 11/1/A adjoining to the railway track situated at 5,
3 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Koregaon Road, Taluka Haveli, District Pune. The Petitioner also
seeks a writ of mandamus directing Respondents to acquire the land
under The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (For short
Fair Compensation Act). The Petitioner in alternative to prayer clause
'A' seeks an order restraining the Respondents from utilising or
removing the barricades on the said strip of land. There is one more
prayer made in the Petition which is a direction to Respondents to
consider alignment of the D.P. road from boundary of the Railway
line as per the Development plan.
PETITIONER'S CASE :
3. The case of the Petitioner is summarised as under. The
Petitioner is a Co-operative Housing Society duly registered under
the provisions of the Maharashtra Co-operative Societies Act. The
Petitioner-Society is an owner of 8177 sq mtrs of land out of area
admeasuring 28012 sq. mtrs. bearing CTS No. 11/1/A, which land
was conveyed in the name of the society by the registered
Conveyance Deed dated 28th July 2018. According to the Petitioner-
Society, on the South side of the property, there is a strip of land
which is 15.7 sq. mtrs wide, admeasuring 1891.85 sq. mtrs.,
4 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
adjoining railway track, which comprises of internal road having a
width of 10.85 mtrs and the society garden having width of 4.85
mtrs which is shown in the sanctioned lay-out plan of the society.
According to the Petitioner, the internal road is partially overlapped
by Development Plan Road ("DP Road" for short) having width of 12
mtrs which is now shown in the Development Plan of the year 2017
abutting railway line.
4. On 15/10/1987, the Developer purchased Survey No.
11/1 from Sir Shapoorji Burjorji Broacha Charity Trust. From the
year 1987 till filing of the Writ Petition, the entire CTS No. 11/1 was
developed in 4 phases and multiple lay out plans have been
sanctioned.
5. In the year 1987, when the first lay out plan was
sanctioned, an area admeasuring 7111.12 sq. mtr, was required to be
handed over to the Government as part of requirement under Urban
Land (Ceiling and Regulation) Act, 1976 ("Ceiling Act" or "ULC" for
short). By an order dated 17/02/1990, an exemption order was
passed under Section 20(1)(a) of the Ceiling Act. This order was
passed after handing over another plot bearing survey no. 228/5 at
5 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Lohegaon admeasuring 18000 sq mtrs. By this exemption order, the
area admeasuring 7111.12 sq. mtrs. was exempted.
6. In the year 2001, the promoter got the area measured
from the department of Land Record because when the first lay out
plan was sanctioned, the area was not properly shown. Under this
measurement and demarcation plan, boundary of CTS No. 11/1/A is
shown extended upto railway line.
7. The area which was incorrectly shown in the first lay out
plan was finally corrected by Collector's order dated 25 th March
2004, under which the area is increased from 26703 sq. mtrs to
28012 sq. mtrs. and the boundary of CTS No. 11/1/A was extended
upto railway line.
8. On 25/09/2006, the developer paid Rs. 18,86,500/- as
premium for utilisation of FSI of internal roads admeasuring
1308.74 sq. mtrs. On 29/09/2006, the next lay out plan was
sanctioned after correction of area and payment of premium for FSI
under internal road. In this lay out plan, internal road on the south
side between society building and society garden was shown. After
the last lay out plan was sanctioned, a development plan was
6 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
finalised in the year 2017 which shows boundary of DP road passing
through the subject matter land as abutting to railway line. As per
this development plan, the D.P. road overlaps on the society garden
and partially on the internal road since the alignment of the D.P. road
has been changed in the year 2017 development plan.
9. It is contended that some-time in March 2019, the
internal road on the South side of the society was opened on either
side for the convenience of the society members to access both sides
(Koregaon Park road and Naylor road ). However, it was found that
this road was being used by non-members of the society for illegal
activities such as drinking alchohol, smoking, playing loud music etc.
and therefore for the safety and security of members, the Petitioner-
Society took steps for closing the said internal road by putting up
necessary board prohibiting tress-passers and thereafter by raising
barricades. On 28/03/2019, Petitioner-Society addressed a letter to
Sr. Inspector of Koregaon Park Police Station informing the said
development and again the similar letter is issued on 27/04/2019.
10. It is the case of the Petitioner-Society that barricades
raised by it was forcibly removed by the Officers of Pune Municipal
7 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Corporation and few people sent by local Corporator. It is contended
that on 03/06/2019, the members of Petitioner-Society were called
to the office of Municipal Corporation for discussing the issue
including compensation for the society. It is alleged that since no
further meaningful steps were taken by the Respondents including
the office of Collector and Municipal Corporation, Petitioner
addressed a letter to Pune Municipal Corporation on 12/06/2019. It
is further alleged that the issue had been kept unresolved by the
Respondents and they were neither taking steps to acquire the said
strip of land for D.P. road nor allowing the Petitioner-Society to put
up barricades and protect its internal road.
11. On the aforesaid case, the Petitioner-Society has filed
the present petition seeking various prayers as narrated above.
RESPONDENTS' CASE :
12. An Affidavit-in-Reply affirmed on 20/02/2021, is filed
by the Executive Engineer of Pune Municipal Corporation on behalf
of Respondent Nos. 5 to 8 i.e. Pune Municipal Corporation and its
officers. The case of Pune Municipal Corporation, inter alia in short
is that by present petition, the Petitioner-Society is indirectly seeking
8 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
cancellation of condition no. 6 of exemption order dated
03/09/1988 and condition no. 5 of exemption order dated
17/02/1990 passed under Section 20(1)(a) of the Ceiling Act. It is
contended that both these exemption orders are neither challenged
by the Petitioner-Society nor developer nor owner and as such they
have attained finality. It is contended that the Petitioner has
purposely not mentioned anything about these exemptions orders
resulting in suppression of material facts.
13. It is further contended that during the time of
development of subject matter land, the original owner and
developer have taken full benefits under said exemption orders and
developed the property in 4 phases and now after almost 31 years,
the Petitioner-Society is trying to challenge the conditions put under
exemption orders and therefore the present petition is merely a
chance litigation.
14. It is contended that the original owner (Trust) held
27,703.74 sq. mtrs vacant land in excess of ceiling limits in the Pune
Urban Agglomeration and out of such surplus land, under order
dated 03/09/1988, land admeasuring 20592.62 sq. mtrs was
9 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
exempted on condition that 7711.12 sq. mtrs of land at 5, Koregaon
Road was to be handed over free of cost. However, the Trust instead
of surrendering said 7111.12 sq. mtrs land, offered alternative land
at survey no. 228/5 at Lohegaon, Pune and said offer was accepted
by the Government. It is contended that in exercise of powers under
section 20(1)(a) of the Ceiling Act, Government exercised its powers
and passed second exemption order dated 17/02/1990 exempting
7111.12 sq. mtrs vacant land from the provisions of Chapter III of
Ceiling Act, subject to conditions and that is how the development
has been permitted, on which Petitioner-Society is standing.
15. It is contended that under condition no. 5 of the
exemption order dated 17/02/1990, it is provided that D.P. roads or
the reservations prescribed by the Planning Authority in the layout
for internal roads shall be transferred by the owner to the State
Government or Pune Municipal Corporation after being duly
developed without charging any monetary consideration and
Completion Certificate for last building in the project shall be
obtained only after such handing over. It is further provided in the
condition no. 5 that internal roads shall be brought upto the
standards laid down by the Pune Municipal Corporation.
10 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
16. It is contended that on 13/12/1988, Pune Municipal
Corporation issued Commencement Certificate and the conditions of
exemption orders are integral part of the said Commencement
Certificate. It is contended that by office circular dated 31/07/1989,
Pune Municipal Corporation has permitted the Developer to utilise
the FSI of the internal roads on payment of premium. It is further
contended that on 29/09/2006, Pune Municipal Corporation has
granted further Commencement Certificate and this also includes the
conditions imposed earlier and the conditions imposed under
exemption orders. It is further contended that the Developer had
made an Application requesting Pune Municipal Corporation to grant
permission for using FSI under the road and accordingly Pune
Municipal Corporation has granted building permission for
construction on additional building No. 18/ building J, under which
construction, the Developer has consumed 1429 sq mtrs FSI.
17. It is contended that on or about 10/07/2014, Pune
Municipal Corporation issued notice under Section 51(1) of the
Maharashtra Regional and Town Planning Act, 1966 ( "MRTP Act"
for short) for revocation/ modification of the Commencement
11 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Certificate because permissions were affected by publication of draft
development plan and more particularly 12 meter D.P. road. It is
contended that the developer submitted its say and assured Pune
Municipal Corporation to hand over the area for road widening as
and when demanded and after hearing the developer, an Order
dated 30/07/2014 was passed by the Pune Municipal Corporation.
It was directed that Developer to get plan revised by marking the
area affected under the draft of development plan as 'deferred area'
and the developer was further directed to hand over area of road to
Pune Municipal Corporation free of cost. After necessary assurance
from the Developer, the order was passed and thereafter the Pune
Municipal Corporation has issued Occupation Certificate on
29/11/2016.
18. Lastly it is contended that the subject matter road,
which according to the Petitioner-Society overlaps on the Society's
internal road, is completely maintained and repaired by Pune
Municipal Corporation including the street lights thereon along-with
the electricity consumption charges being borne by Pune Municipal
Corporation. Alongwith Affidavit-in-Reply, Pune Municipal
Corporation has produced Commencement Certificate, Office
12 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Circular, notice under Section 51(1) of the MRTP Act, assurance
letter given by the developer and Order dated 30/07/2014 which are
referred in the reply.
SUBMISSIONS :
19. Mr. Potnis, learned counsel for the petitioner has argued
orally as well as filed written submissions. He submitted that the said
strip of land was not reserved as DP Road in the year 1987 when the
development started, but the same came to be reserved as DP Road
subsequently in the year 2017. He further contended that the said
strip of land was not part of the property till 20.02.2000 and ULC
orders are dated 1988 and 1990 and the said strip of land was not
part of the ULC orders.
20. Learned Counsel contended that in the event, the
Respondents want to apply the ULC conditions of the year 1988 and
1990 to the said strip of land, then separate orders to that effect
must be passed, after the said strip of land became part of the layout.
He contended that the ULC orders would apply to the reservation
such as DP roads that were existing prior to the orders passed and
13 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
they cannot apply to subsequent reservations. He further submitted
that assuming that the ULC orders would apply till the completion
certificate which is of the year 2016, even in such scenario they
would not apply to the present subject matter strip of land because
the DP reservation is subsequent to the final sanction of layout and
completion certificate. He invited our attention to the clause 17 of
the commencement certificate dated 13.12.1988, and submitted that
this clause deals with construction of DP Road and not with the
compensation of the acquisition of land. He contended that the
width of the DP Road does not fit in the chart mentioned and hence
the chart cannot be said to be applicable to the Petitioner.
21. Learned Counsel contended that clause 17 has to be
read in toto and it basically deals with cost of construction of DP
Road and not with the compensation for its acquisition. He
submitted that there is no provision in law by which any space can
be transferred or vested in the Municipal Corporation free of cost
without payment of compensation and sanctioning of layout does
not provide for an entitlement to corporation to claim any land free
of cost. He relied upon article 300A of the Constitution of India
which provides for protection of citizens from the deprivation of
14 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
property save by authority of law. He submitted that there is no
provision in law by which any land can be transferred to sanctioning
authority without payment of compensation.
22. It is submitted that there is no provision under DCR by
which, any property can be transferred free of cost to corporation
and that in the event, such provision exists, it will be
unconstitutional and violative of Article 300-A and MRTP act. He
submitted that the DP Road is shown abutting the railway land but
internal Road is currently touching the boundary of the society, and
as a result, there needs to be demarcation of land. He further
submitted that scheme of section 51 of MRTP Act deals with
compensation payable for construction to be removed, as a result of
change in the DP plan. It does not deal with compensation for
acquisition which falls under section 126 and 127 of the MRTP Act.
He submitted that the letter dated 10.07.2014 does not say that
petitioner would give up the compensation but it only states that
land would be handed over on demand.
23. It is submitted that even if the letter dated 10.07.2019 is
15 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
to be given an absurd interpretation of waving the compensation, it
is only with reference to Section 51 which deals with compensation
for removal of construction and cannot be construed to mean
waiving compensation for acquisition of land which falls under
Sections 126 and 127 of the MRTP Act. Lastly he submitted that the
order issued under Section 51 of the MRTP Act dated 30.07.2014 is
with respect to deferred area which is shown in the layout attached
to the order. He submitted that deferred area of road does not fall on
the side strip of land but it runs along the length of the area.
According to him, the layout plan clearly demarcates the said strip of
land as Road and there is no marking of deferred area shown.
24. Learned counsel appearing for petitioner relied upon following
case law, in support of his case.
(i) Yogendra Pal and Ors. Vs. Municipality, Bhatinda and
Ors (1994) 5 SCC 709
(ii) Chet Ram Vashist (Dead) by Lrs. Vs. Municipal
Corporation of Delhi (1995) 1 SCC 47.
(iii) Vrajlal Jinabhai Patel and Ors. Vs. State of Maharashtra
and Ors. 2003(3) MhLJ 215.
(iv) The State of Maharashtra Vs. Bhimashankar Sidramappa
16 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Chippa, Partner of Umashankar Industries 2009 (4) BomCR 1.
(v) Kishor Sharad Borakake and Ors. Vs. The state of
Maharashtra and Ors. MANU/MH/1764/2019.
(vi) K.T. Plantation PVT. Ltd. And Ors. Vs. State of Karnataka
AIR 2011 SC 3430.
25. Per contra Mr. Pethe learned Counsel appearing for
Respondent/Pune Municipal Corporation opposed grant of any relief
in favour of the Petitioner/Society. He submitted that the subject
matter property was affected by draft DP published in 2013 and
therefore specific notice under Section 51(1) of the Maharashtra
Regional and Town Planning Act, 1966 (For Short "MRTP Act") was
issued to the developer which is produced on record. He submitted
that the said notice dated 10.07.2013, amongst other things, clearly
stated that existing permission under which is the property is being
developed is in violation of published revised draft Development
Plan dated 28th March, 2013 and it is specifically mentioned in
clause 7(a) of the said notice that the permission granted is in not in
conformity with provisions of the published revised DP since the said
land is affected by road widening 42 Mtr. and 12 Mtr.
17 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
26. It is submitted that the developer has given its reply
dated 10.07.2014, which is produced on record. Inviting our
attention to said reply of the developer, he submitted that a specific
request was made by the developer to permit continuation of
construction for the super structure and a clear undertaking is given
by the developer to hand over necessary area for road widening as
and when demanded by him.
27. Learned Counsel pointed out that by a specific order
dated 30.07.2014 passed in respect of the subject matter land,
making clear reference to the subject matter 12 Mtr. DP road, it is
ordered after hearing the developer, that development was permitted
to be continued under Section 51 (1) (A) of the MRTP Act, however,
the width of the road as per draft DP of 2013 to be shown as
deferred area and lay out be modified suitably and the
assurance/indemnity to be taken from the developer for handing
over the road space without any consideration to Pune Municipal
Corporation.
28. It is submitted that in the teeth of such specific notice
under Section 51 of the MRTP Act, reply and written assurance given
18 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
by developer thereon and specific order being passed for
modification of development permission, the Petitioner/Society, who
has now stepped into the shoes of developer/owner, cannot be
permitted to back-track and seek compensation for the area of the
said 12 Mtr. D.P. road which is affecting the subject matter land. He
further argued that the said order dated 30.07.2014 is not at all
challenged by the developer, not even in the present Petition. So also
original commencement certificate (conditions therein) and ULC
orders are also not challenged. He submitted that since all the said
permissions/ orders including last order under Section 51 have
attained finality, the Petitioner is a estopped by conduct as well as
under law from seeking compensation now.
29. Ld. AGP and Mr. Deshpande have submitted to the order
of the Court.
REASONS AND CONCLUSION
30. The question that therefore falls for our consideration is
whether in the peculiar facts and circumstances of this case, the
Petitioner Society can be permitted to seek compensation and seek
acquisition under Fair Compensation Act for the subject land affected
19 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
by 12 Mtr. D.P. road.
31. It is material to note that when the order under Section
51 of the MRTP Act was passed, the Petitioner's predecessor -
developer has been duly heard. When the notice was issued and
reply was filed by developer on 10.07.2014 as well as when the
order was passed on 30.07.2014, Fair Compensation Act had already
come into force. If the developer was not agreeable to hand over
necessary area for road widening without compensation, he should
have raised such grievance or at least should have challenged the
order dated 30.07.2014, as provided under law. Having not done so,
neither the developer nor the Petitioner/Society can be permitted to
challenge the effect of the said order, after a period of five years by
filing the petition in the year 2019.
32. Under clause 17 of the original Commencement
Certificate dated 30th December, 1888 when the development first
started on the subject matter land, it was stipulated that the Society/
promoter will construct at its own cost D.P. road/s passing through or
abutting the Society/land as per alignment given by the Pune
Municipal Corporation and these DP roads should be treated as
20 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
colony roads and their widths should be as per standards mentioned
therein.
33. It is further necessary to note that in condition No. 5 of
the 2nd exemption order dated 17.02.1990, by which the excess land
of 7111.12 Sq.Mtr was exempted from the application of the Ceiling
Act and was permitted to be utilized for development, a specific
condition has been imposed that the area falling under development
plan reservation including D.P. road shall be transferred by the owner
to Municipal Corporation after being duly developed without
charging any monetary consideration either before the work or at a
later date. It is further provided in the said condition that completion
certificate for the last building in the project shall be obtained only
after land under reservation including D.P. roads, if any, is actually
handed over to Municipal Corporation.
34. It is not disputed that the Owner/Developer/Society has
utilized the benefits under the exemption order dated 17th February,
1990 which is obvious from the fact that the earlier excess land of
7111.12 Sq.Mtr land is ultimately utilized for long phase-wise
development and construction of society buildings since 1987 till
21 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
2016. It is also not disputed that Owner/Developer/Society has
utilized the benefit of 1st commencement certificate dt. 13/12/1988
and other commencement certificates of the year 2006 for such
development and construction.
35. It is also obvious that in the teeth of revised DP being
published, affecting the subject matter land for 12 Mtr D.P. road, only
after giving written assurance dated 10th July, 2014, an order is
secured from the Municipal Authority for continuing with the
construction with road width being permitted to be shown as
deferred area and the Occupation Certificate has been obtained on
29th November, 2016. It is also obvious that had the Petitioner or
developer raised any grievance about handing over of D.P. road to
the Municipal Corporation as provided in the condition of the
exemption order or in response to the notice under Section 51, the
Occupation Certificate would not have been granted and the matter
would have proceeded as provided section 51(2) or 51(3) of the
MRTP Act.
36. The developer has not opted for such recourse and has
given written assurances and has utilized the benefits order under
22 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Section 51 and has obtained Occupation Certificate for the society
buildings. Having done so, in our considered view, the
Petitioner/Society cannot be permitted to back-track now after 5
years from the date of Order u/s. 51 and after 3 years from the date
of OC to seek compensation by fresh acquisition of the land for the
purpose of 12 Mtr. D.P. road through subject matter of land under the
Fair Compensation Act.
37. The argument of the Petitioner that the said strip of land
was not reserved as D.P. road in the year 1987 when the
development started but it is reserved only in the year 2017 or the
argument that the said strip of land was not part of property till
February, 2000 and the ULC orders passed of the 1988 and 1990 did
not cover the same, is attractive at the first blush. However, on
deeper consideration following material facts emerge :
(i) that by the ULC exemption orders, not only the original
retention land but also the excess land was made available for the
development.
(ii) The owner had offered alternative land so that the excess land
can also be used with the retention land for development. That
alternative land was accepted and the second exemption Order of
23 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
1990 was passed, as stated earlier.
(iii) Both the retention as well as excess land has been utilized for
development.
(iv) It is not in dispute that D.P. road of 2017 was already notified
as part of draft Development Plan which affected the subject matter
land in the year 2013 itself.
(v) It is also not disputed that therefore before issuance of
occupation certificate, specific notice under Section 51 of MRTP Act
was given, which was responded by the developer with written
assurance and an Order was secured for continuing with the
development.
38. These facts are sufficient reason to reject the argument
of the Petitioner that the said strip of land was not reserved from
beginning and was not part of the orders under The Urban Land
(Ceiling and Regulation) Act. For the same reasons the argument of
the Petitioner that the orders under the Ceiling Act would apply to
D.P. roads existing prior to the orders, needs to be rejected.
39. The argument that ULC orders will not apply to present
subject matter strip of land because D.P. reservation is subsequent to
24 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
final sanction of lay out and occupation certificate, also needs to be
rejected for the same reason that the D.P. road of 2017 was duly
notified prior to grant of occupation certificate and the procedure
under Section 51 has been already followed.
40. The argument about width of the D.P. road not fitting
the details mentioned in the clause 17 of the commencement
certificate dated 13.12.1988 is only stated to be rejected because
such roving inquiry including factual aspects cannot be done under
writ jurisdiction under Article 226 of the Constitution of India.
Similarly the argument of the Petitioner that the order under Section
51 of the MRTP Act is only with respect of deferred area and the
subject matter road does not fall within the deferred area and it runs
along the length of the plot, is also an argument requesting this
Court to go in inquiry of facts including reading of maps for lengths
and breadths, which cannot be done under writ jurisdiction under
Article 226 of the Constitution of India. Learned Counsel for the
Petitioner has raised certain arguments as if a suit is being argued in
a trial, which we are afraid, cannot be permitted.
41. The next argument of the learned Counsel for the
25 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
Petitioner that clause 17 of the commencement certificate dated
13.12.1988 and application of Section 51 only deals with waiving of
construction costs and therefore it does not affect the right of the
Petitioner/Society to seek compensation for deprivation of its
property rights under Article 300-A of the Constitution of India r/w
Section 126 and 127 of the MRTP Act, cannot be gone into at today's
belated stage when the Petitioner has accepted and not challenged
the order under Section 51 of the MRTP Act dated 30.07.2014, as
also occupation certificate dated 29.11.2016. If the Petitioner had
agitated this issue of compensation prior to getting O.C. or at the
time of answering notice under Section 51, this contention could
have been gone into. Afterall it is matter of public utility of road
under applicable Development Plan.
42. Now let us consider various judgments relied upon by
the Petitioner in support of its case. In the case of Yogendra Pal and
Ors. Vs. Municipality, Bhatinda and Ors. (supra) the question of law
before the Apex Court was whether the provisions of Section 192 (1)
(c) of the Punjab Municipal Act, 1911 and the corresponding
provisions of Section 203(1)(c) of the Haryana Municipal Act, 1973
for compulsory transfer of the land to the Municipal Committees
26 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
without payment of compensation, were valid. Careful reading of the
said judgment, specially para 8 relied upon by the Petitioner, shows
that the Apex Court has considered the purport of word 'transferred'
against the word 'acquired'. The Apex Court has held in the context
of Section 192(1)(c) of the Punjab Municipal Act, 1911 that the
transfer is nothing short of acquisition divesting the land owner of all
his rights as owner of the land. The question of back-tracking from
written assurance given by the developer so far as the D.P. road is
concerned, was not under consideration in the said judgment and
therefore, in our considered view, the said judgment will not advance
the case of the Petitioner.
43. In the case of Chet Ram Vashist (Dead) by Lrs. Vs.
Municipal Corporation of Delhi (supra) the question under
Consideration before the Apex Court was whether the Municipal
Corporation of Delhi, in absence of any provision in the Delhi
Municipal Corporation Act, 1957, was entitled to sanction the plan
for building activities with condition that the open spaces for parks
and schools be transferred to the Corporation free of cost. Careful
reading of the facts of this judgment shows that what was under
consideration was 'transfer of open spaces' and not DP roads.
27 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
44. It will not be out of place to mentioned here that in D.C.
rules applicable to matter in hand (at Pune), streets/roads, open
spaces & amenities spaces are differently provided and they are
distinct in the nature so far as their utility for public or plot/flat
owners/purchasers in the lay-out is concerned. In the facts where the
corporation was insisting on transfer of open space for parks and
schools free of costs, the order of the High Court was modified by
the Apex Court and it was left open to the Corporation to get the
said open spaces transferred after paying the market price as
prevailing on the date of sanction of lay out.
45. In the present case, the question of transfer of open
space for park and school is not at all involved. So also in the present
case, there has been specific hearing after notice of modification was
issued by Respondent/Corporation under Section 51 of the MRTP
Act. The Petitioner's predecessor (Owner/Developer) having
developed the entire project by drawing benefits under not only
Commencement Certificate but also under exemption-orders passed
under Ceiling Act and Section 51 of the MRTP Act. In that view of
the matter, the said judgment is clearly distinguishable and does not
28 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
advance the case of the Petitioner.
46. In the case of Vrajlal Jinabai Patel and Ors Vs. State of
Maharashtra and Ors. (supra) once again the issue of acquisition of
open space was involved and in that context, the coordinate bench of
this Court had held that the title in the open space is not transferred
to the Municipal Council merely on the passing of lay-out and
acquisition of open spaces is not contemplated under Section 183 of
the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965. In the present case, there is no
acquisition of open space involved in the matter and therefore the
said judgment also does not advanced the case of the Petitioner.
47. In the case of The State of Maharashtra Vs.
Bhimashankar Sidramappa Chippa (supra) once again coordinate
Bench of this Court was considering the acquisition of land reserved
for playground and there were actual proceedings of acquisition
undertaken in which defence of conditions imposed at the time of
sanction of lay-out was raised by municipal authority. In a challenge
arising out of such facts, this Court had held that there is no
provisions of law which authorizes transfer of open space ownership
29 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
in favour of the Municipality. In the case there are no acquisition
proceedings before us. Present case is also not about open space but
the question involved is of making available D.P. road as per order
under Section 51 as also the condition imposed at the time of
commencement of the Development. For that reason, this judgment
also, being distinguishable, would not advance the case of the
Petitioner.
48. In the case of Kishor Sharad Borawake and Ors. Vs. The
State of Maharashtra and Ors (supra) the maintainability of the
orders passed by Municipal Councils to transfer open space and
space for amenity free of cost and consequential taking of possession
free of cost as condition for sanctioning the layout, was under
consideration. This alone distinguishes the present case from the said
judgment relied upon by the Petitioner. Admittedly, in the present
case the order granting permission, both, commencement order
dated 13.12.88 and 30th July, 2014 u/s. 51 of MRTP Act are not
challenged in this Writ Petition and the prayer of direction to acquire
the land and pay compensation as per the Fair Compensation Act is
also made belatedly. Once again, in the said judgment relied upon by
the Petitioner, this Court was considering the transfer of open space
30 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
and amenity spaces and not a D.P. road.
49. In that view of the matter, the said judgment relied upon
by the Petitioner is clearly distinguishable and does not advance the
case of the Petitioner. It is not out of place to mention here that this
judgment is relied upon by the Petitioner primarily for the delay
caused, because in para 45 of the said judgment, a coordinate bench
of this Court had exercised its jurisdiction despite long delay. It is
obvious that the said exercise was made in the facts and
circumstances of that case. When the order of the Municipal
Corporation u/s. 51 dated 30th July, 2014, and the original condition
of the Commencement Certificate dt. 13.12.88, are admittedly not
challenged in the present Petition till 2019 when this petition is filed
on 21.06.2019, we are not inclined to exercise our extra ordinary
writ jurisdiction under Article 226 of the Constitution of India.
50. So far as the last judgment relied upon by the Petitioner
in the matter of K.T. Plantation Pvt. Ltd and Ors. Vs. State of
Karnataka (supra) is concerned, the reliance placed by the Petitioner
on the said judgment is totally misplaced, in as much as the ratio of
that judgment of the Apex Court is related to 'invalidation of the
31 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
legislation on the ground of delegation of essential legislative
functions or on the ground of conferring un-guided, un-controlled
and vague powers upon the delegate without taking into account
preamble of act as also other provisions of the statute'. In that case
the constitutional validity of Roerich and Devika Rani Roerich Estate
(Acquisition & Transfer) Act, 1996 and legal validity of Section 110
of the Karnataka Land Reforms Act, 1961 were under consideration.
The facts of this case are not even remotely close to the facts of that
judgment, and therefore this judgment also does not help the
Petition.
51. Before parting, it is necessary to note that in none of the
judgments relied upon by the Petitioner, there was specific order for
modification of the development permission as in the present case
viz. order under Section 51 of the MRTP Act.
52. Having fully utilized and derived benefits from all the
commencement certificates, ULC exemption Orders, section 51
(MRTP Act) Order of modification to continue construction and
having given written assurances, all this for a long phase-wise
development and construction of society buildings since 1987 till
32 /33
Shubham Talle
judgment in WP 10400-2019 (final).doc
2016 and having acquired Occupation Certificate in 2016 itself, now
cannot be allowed to raise a spacious argument that Respondents be
directed to acquire said strip of land under Fair Compensation Act
and pay or let the Society keep the road to itself. This is being asked
when 3 years have passed from the grant of O.C., 5 years have
passed from the modification order under Section 51 of the MRTP
Act and about 29 years have passed after the exemption orders
under Ceiling Act. No explanation is given whatsoever for delay and
laches.
53. Thus in the background of aforesaid peculiar facts and
circumstances, we decline to exercise our extra ordinary writ
jurisdiction under Article 226 of Constitution of India. The Petition is
therefore dismissed. Rule is discharged. No order as to costs.
[M.M.SATHAYE,J.] [R. D. DHANUKA, J.]
33 /33
