Bombay High Court
The Madhya Railways Employees ... vs Shri. Mahadeo Jangluji Kamatkar ... on 15 February, 2023
Bench: Sunil B. Shukre, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION NO.42 OF 2023
IN
MISC. CIVIL APPLICATION (REVIEW) NO. 190 OF 2023
IN
PUBLIC INTEREST LITIGATION NO.122 OF 2013 (DECIDED)
Madhya Railways Employees Housing Association
-Vs-
Mahadeo Jangluji Kamatkar and ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.P. D.Meghe, counsel for the Applicant/Petitioner.
Mr. S.S.Joshi, counsel for respondent No.3
Mr.A.S.Fulzele, Addl G.P for respondent Nos.4,5,6,8 and 10.
CORAM :SUNIL B.SHUKRE &
G.A.SANAP, JJ.
DATE : 15.02.2023.
1. Heard.
2. This is an application for condonation of delay
in filing review application.
3. For the reasons mentioned in the application,
the application is allowed and the delay is hereby
condoned.
4. Review application be registered forthwith.
5. Civil application stands disposed of.
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MISC. CIVIL APPLICATION (REVIEW) NO. 190 OF 2023
1. Heard.
2. Considering the fact that the learned counsel
appearing for the petitioner Association was no more
having died of illness arising from the Covid-19 infection
at the time when this petition was heard and finally
disposed of, we are of the view that in the interest of
justice, the application deserves to be allowed and it is
allowed accordingly. The impugned judgment/order
dated 20.07.2022 is hereby recalled and the petition is
restored to the original file, subject to the condition of
payment of costs of Rs.10,000/-. The costs so imposed by
this Court shall be adjusted against costs of Rs.10,000/-
already deposited by the petitioner in terms of the order
dated 20/07/2022.
3. Civil Application stands disposed of.
PUBLIC INTEREST LITIGATION NO.122 OF 2013
1. Not on board. Taken on board and heard
forthwith.
2. Learned counsel appearing for the petitioner
has invited our attention to the order passed by the
Competent Authority under Section 20 of the Urban Land
(Ceiling and Regulation) Act, 1976,(hereinafter referred
to as the "U.L.C. Act,1976") on 09/10/2000 (page 64)
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thereby granting exemption in respect of the excess land
mentioned in the order for the purpose of providing plots,
and/or making of construction of tenements in
accordance with the special dispensation issued by the
Government Resolution Housing and Special Assistance
Department No.CSC/ULC/1091/5(3977)D-XIII dated
15.01.1992. He points out that there is a specific
condition in the order which prohibits respondent Nos.1
and 2 from selling the land meant for public utilities to
respondent No.3. He submits that though it is true that
NIT in it's reply has admitted that it has released the
Public Utility Land in favour of respondent No.3 and that
it has accorded sanction for construction thereon of a
school building as per the applicable Development
Control Rules, such admission of the NIT is of no
consequence when the other admission given by the NIT
in response to the application filed by the petitioner
under the Provisions of Right to Information Act is
considered. In support, he takes us to the response of the
NIT at page No.168 of the paper book and it shows that
answer of the NIT to the question as to whether or not PU
land, open space forming part of the lay out sanctioned in
terms of Section 20 of the U.L.C Act,1976 can be sold, the
NIT has given answer to the effect that NIT is not
concerned with the issue raised and it is the U.L.C., which
is the Competent Authority in that regard. He also
submits that the petitioner has also made several
representations in this regard to the Competent Authority,
but to no avail. In support, he relies upon a letter dated
23.10.2013 sent to the Director Maharashtra Regional
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Town Planning, Nagpur and except for this letter, which
according to the learned counsel for the petitioner is a
representation made to the Competent Authority making
a complaint about breach of Section 20 ULC order, there
is no other representation or complaint to the Competent
Authority filed on record.
3. Shri.Joshi, learned counsel appearing for
respondent No.3 submits that this petition has been
dismissed not just because the then learned counsel for
the petitioner was absent rather, this petition has been
dismissed after considering the worth of the petition and
merits of the issue involved in the matter. He submits
that NIT being the Planning Authority has considered the
whole issue and in the light of the Provisions made in the
applicable Development Control Rules, has also released
the land reserved as public utility in the lay out
sanctioned for construction of a building for the purpose
of education. Accordingly, building permit has also been
granted by the NIT, so submits the learned counsel. He
further submits that the petition has been dismissed on
several other grounds such as the dispute being of private
character and the dispute involving several disputed
questions of fact which could be adjudicated upon
properly, only by a Civil Court. He, therefore, submits
that this petition deserves to be dismissed.
4. Learned Additional Government Pleader,
submits that there was no occasion for the Competent
Authority under the U.L.C. Act,1976, to consider the issue
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involved in this petition in any manner as no
representation whatsoever has been made to the
authority by the petitioner. He further submits that
whatever NIT has done, it has done in the capacity of a
Planning Authority and that too after taking into
consideration applicable Development Control Rules and
unless it is shown by the petitioner that the action taken
by the NIT is patently against law, petitioner cannot have
any grievance in that regard.
5. The rival contentions can be addressed
properly if we begin the exercise from the order dated
09.10.2000 passed under Section 20 of the U.L.C.
Act,1976 by the Competent Authority. By this order,
exemption from provisions of ULC,Act, 1976 has been
granted to the owners of the land and it is regarding the
excess land. The purpose for which the exemption has
been granted is of providing plots and/or making of
construction of tenements in accordance with the GR
dated 15.01.1992. This exemption has been made subject
to several conditions and the conditions which are
relevant here are prescribed as condition Nos.5 and 11.
These conditions are, for the sake of convenience ,
reproduced below:
"5. All the land (whether vacant or
non-vacant) from the total holdings of the said
person falling under development plan,
reservations, DP Roads or the reservations
prescribed by the planning authority in a
layout for various public amenities as well as
the internal roads (whatever these are to be
transferred by local authorities rules) shall be
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transferred by the said person to the State
Govt.(sic-or) concerned Planning Authority
after being duly developed as per the Rules of
the concerned Planning Authority without
changing any consideration, either before the
work actually commences or it a latter date as
may be obtained by the said person only after
land under reservation etc. if any is actually
handed over to Govt./Planning Authority if so
prescribed by the concerned Planning
Authority, internal roads shall be brought up to
the standard laid down by the concerned
Planning Authority before they are transferred.
11. The area required to be kept open
according to the DC Rules building regulations
of Planning Authority. Town Planning rules
and other statutory regulations shall always be
kept open. This part of the land shall not be
used for any construction whatsoever, even if
there is a change in FSI in future, permitting
additional constructions''.
6. Insofar as condition no.11 is concerned, we
would find that the area of the excess land which is
mandatorily required to be kept open by the land
owners/developer as per Development Control Rules,
should always be kept open and it is a condition of
exemption granted under Section 20 of the U.L.C.
Act,1976. This aspect of the matter has already been
adequately dealt with in the reply of the NIT which was
admittedly the Planning Authority at the time when the
issue involved in this dispute arose. The NIT has already
made clear that the release of the PU Land by it for the
purpose of construction of a building for education
purpose is as per the applicable Development Control
Rules. So, on this ground, no doubt can be entertained
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about the construction of the building on the PU land.
7. Now what remains is the condition No.5. As
per this condition, that portion of the land from out of
the total holding of the land owner which is covered by
development plan, reservations, DP roads or reservations
prescribed by the Planning Authority for various public
amenities and internal roads while sanctioning the lay
out is required to be transferred by the owner to either
the State Government or the concerned Planning
Authority without charging any consideration. This
condition also requires the land owner to transfer such
portion of the land either before commencement of
actual work or at a latter date, to be obtained from the
concerned authority.
8. So it is quite clear from the above condition
that in order that the rigor of condition No.5 is brought
to bear upon the land owner or the developer or the
purchaser like the respondent No.3, the requisites given
below must be fulfilled. They read as under:-
1. The land must be covered by the
development plan.
2. The land must be subjected to
reservations for public purposes or DP
roads or subjected to the reservations
prescribed by the planning authority while
sanctioning the lay out for such purposes
as public amenities or internal roads.
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09. It is only when the above referred requisites
are fulfilled that the requirement as prescribed under
condition No.5 regarding transfer of the land to the State
Government or the concerned Planning Authority would
arise. In the instant case, the land in question falls under
development plan but, under the development plan, it is
not reserved for either the DP road or for any other
public purpose. Therefore, there was no need for the land
owner to transfer the land to the State Government or
the beneficiary of the reservation provided under the
development plan. This land, was, however, reserved for
public amenities by the Planning Authority i.e. NIT in the
lay out plan sanctioned by it, and therefore, there was
indeed a requirement of the land owner, as per condition
N0.5, to transfer the land in question without charging
any consideration in favour of the NIT. But, the land
owner was relieved of his such an obligation by the NIT
when, it released the land in question from it's
reservation as public utility land in favour of respondent
No.3 for due consideration. This can be seen from the
reply of the NIT.
10. The reply of the NIT, which is admittedly the
Planning Authority here, had taken a conscious decision
regarding release of the public utility land in favour of
respondent No.3. It has submitted that as the earlier
Planning Authority did not undertake any development in
respect of the lay out in question nor the plot owners had
taken any pains to get their lay out developed, the NIT
thought it fit to release the public utility land in favour of
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the respondent No.3 after charging Rs.55/- per sq.ft.of
the land and accordingly it did so. It has further stated
that the NIT has also sanctioned the Building Plan.
Finally it has stated in para-10 of it's reply that in the
circumstances reproduced earlier, the NIT, being the
Planning Authority for the said area, itself undertook the
work of according sanction and releasing the public
utility land in favour of respondent No.3 and that was
strictly in consonance to the Regional Development Plan
and Development Control Rules, applicable to the land in
question.
11. The aforestated reply of the NIT clearly shows
that the land in question was initially reserved as a public
utility land in the lay out plan but owing to the
circumstances specified in it's reply, NIT took the decision
to release the land from such reservation in favour of
respondent No.3. We do not find that there is anything
wrong in the decision so taken by the NIT, nor has
anything objectionable been pointed out to us by the
learned counsel for the petitioner. Once, it is seen that
the land in question has been released by the NIT from
it's reservation as public utility land, in the lay out plan,
as a necessary corollary, the conclusion is that there is no
breach of condition No.5 of section 20 U.L.C. order dated
09/10/2000. If the land in question has lost it's character
as a land reserved as public utility land in the lay out
plan, there is no obligation on the land owner or the
purchaser to transfer it free of cost to the Planning
Authority i.e. N.I.T.
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12. As regards the objection of learned counsel for
the petitioner that NIT could not have stated in the reply
that it has released the land in question from its
reservation as a public utility land in the lay out plan
because of it's contradictory stand taken in reply given to
the petitioner in response to the petitioner's query made
under the provisions of Right to Information Act, we must
say that the reply given by the NIT clearly did not
indicate any contrary stand. The query raised was-
"whether PU land, Open Space forming part of lay out
sanctioned under ULC Act, under Section 20 of U.L.C.
Act, 1976 can be sold?", and reply to this query was-
"not concerned with NIT and U.L.C. is, the Competent
Authority regarding this". The question was about the lay
out sanctioned under the ULC Act and it was not about
the lay out plan sanctioned by the NIT. NIT could not
have given reply to such a query as the information
relating to ULC affairs was not expected to be within it's
knowledge. Here, the reply of the NIT is confined to the
lay out plan sanctioned by it as a Planing Authority and
release of the land in question from it's reservation as
public utility land provided under the lay out plan. The
reply filed here by the NIT does not deal anything with
the lay out sanctioned under the ULC Act, if any and,
therefore, it cannot be said that the response given to the
RTI query of the petitioner by the NIT contradicts it's
stand taken in this petition.
13. The learned counsel for the petitioner has also
submitted that the letter dated 23.10.2013 is a
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representation made to the Competent Authority under
U.L.C. Act for redressal of the grievance of the petitioner
that the land in question has been illegally and
unauthorisedly sold by the land owner to the respondent
No.3. However, a bare perusal of the communication
dated 23.10.2013 would show that it is neither a
representation nor a communication addressed to the
Competent Authority designated under the U.L.C. Act for
the purpose of Section 20 of U.L.C.Act,1976. It is a
communication addressed to Assistant Director
Maharashtra Regional Town Planning, Nagpur and it
seeks clarification regarding sale of public utility land,
Khasra No. 138 (old 278) Mouza Godhani, Nagpur.
Clarification sought is to the effect as to whether or not
the owners could sell the PU land meant for the
beneficial use of the plot holders. It is obvious that
communication dated 23.10.2013 does not seek any
redressal of the grievance.
14. There is one more communication sent by the
petitioners to the Collector, Nagpur, which we have come
across while going through the paper book of the
petition. This communication could be said to be a
representation made by the affected persons but not the
petitioner in it's representative capacity. But these
affected persons have ultimately sought a relief from the
Collector of his advising the Progressive Education
Society Bezanbag, Nagpur, the builder and his agent to
cease and desist from any more encroachment on the
open spaces/premises and not to disturb the status-quo,
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which disturbance was causing lot of resentment amongst
the residents of the area. Of course, this communication
also states that respondent No.3 had started making
construction on the land in question without any
authority but, it was not the representation made by the
petitioner and was the representation made in individual
capacities by some affected persons.
15. The discussion made in the earlier paragraphs
would show that quite contrary to the submission of the
learned counsel for the petitioner, the petitioner has not
raised any specific grievance before the Competent
Authority regarding breach of condition No.5 by the land
owner and respondent No.3 and the petitioner has not
sought any redressal of its grievance from the Competent
Authority. If it had made such a representation to the
Competent Authority, it would have enabled the
Competent Authority to render it's decision in the matter.
Be that as it may, now much water has flown under the
bridge and we have already found that the land in
question was reserved as a public utility land while
sanctioning the lay out plan by the planning authority,
but this land was later on released from reservation as
public utility land by the NIT as per the provisions made
in Development Control Rules. Still, if the petitioner has
any grievance to make, it would be against the action
taken by the NIT and not the Competent Authority under
the U.L.C. Act, 1976.
16. Thus, we do not find that there is any ground
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for the petitioner to question the action of the State
Government or respondent Nos.1, 2 and 3 for converting
the land reserved as a public utility land in the lay out
plan to some other purpose. If the petitioner still has any
grievance against the NIT, the petitioner is at liberty to
make a suitable representation to the NIT.
17. In this view of the matter, we find that there is
no substance in the present public interest litigation. The
public interest litigation stands dismissed.
18. Liberty is granted to the petitioner to make a
suitable representation to the NIT, if any and if so advised
within a period of four weeks from the date of the order.
JUDGE JUDGE
Signed By:KAVITA PRAVIN
TAYADE
P. A.
Signing Date:17.02.2023 14:51
Kavita
