Bombay High Court
Zumber Baburao Bhalerao And Ors vs The State Of Maharashtra Thr Its ... on 31 July, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:21223-DB RR Realtors vs The State of Maharashtra & Ors+
2-aswp-1268-2019-J+.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1268 OF 2019
RR Realtors,
A Partnership Firm,
Through their respective partners
a. Hero Notandas Motwani,
Age: 56 years, Occupation: Business
b. Laxmandas Chudmal
Vaswani,
Age: 64 years, Occupation: Business
Office at: Shop No. 94, Pimpri Bazaar,
Pune 400 017.
R/at: Prasanna Colony, Rahatni, Taluka
Haveli, District: Pune 400 17. ...Petitioners
~ versus ~
SHEPHALI 1. The State of Maharashtra,
SANJAY
MORMARE
Through its Urban Development
Digitally signed by
SHEPHALI
SANJAY
MORMARE
Ministry
Date: 2023.07.31
12:21:30 +0530
2. The Competent Authority &
Deputy Collector,
Pune Urban Agglomeration, Pune.
3. The Municipal Corporation
of Pimpri & Chinchwad,
Pimpri 411 018.
4. Criminal Investigation
Department, ...Respondents
Maharashtra State,
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Near Modern Law College, Pune
University Chowk, Chavannagar,
Pashan Road, Pune 411 008.
WITH
WRIT PETITION NO. 9722 OF 2022
1. Zumbar Baburao Bhalerao,
Age: 69 years, Occ.: Agri./Service
2. Rajesh Baburao Bhalerao,
Age: 52 years, Occ.: Agri/Service,
Nos. 1 & 2 r/o Siddharth Nagar,
Rahatani, Pimpri, Pune 411 017.
3. Yogesh Ramchandra
Tudayekar,
Age: 50 years, Occ.: Agri./Business
4. Leena Yogesh Tudayekar,
Age: 46 years, Occ.: Practicing Doctor,
Nos. 3 & 4 r/o B-21, Suvarnayug,
New DP Road, Aundh, Pune 411 007. ...Petitioners
~ versus ~
1. The State of Maharashtra,
Through its Urban Development
Department, Government of
Maharashtra, Mantralaya, Mumbai.
2. The Collector, Pune.
3. The Additional Collector
and Competent Authority,
Pune Urban Agglomeration,
Pune.
4. The Tahasildar,
Pune Urban Agglomeration, Pune.
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5. Municipal Corporation of
city of Pimpri Chinchwad,
District Pune.
6. Crime Investigation
Department,
Having its office at Bharari Pathak,
Opp. Modern College, Pashan Road,
Maharashtra State, Pune 411 008.
Through its Investigating Officer ...Respondents
A PPEARANCES
for the petitioners Mr YS Jahagirdar, Senior
in wp/1268/2019 Advocate, with Suresh Sabrad,
Neha Parte.
for the petitioners Mr Atul Damle, Senior Advocate,
in wp/9722/2022 i/b Suresh Sabrad.
for respondent- Mr SB Kalel, AGP.
state in both
matters
for respondent no. Mr Rohit Sakhdeo.
3-PMC in
wp/1268/2019
for respondent no. Mr Deepak More.
5-PMC in
wp/9722/2022
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 31st July 2023
ORAL JUDGMENT (Per GS Patel J):-
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1. Rule. Rule returnable forthwith.
2. These two Petitions have been pending since 2019. There are
Affidavits in Reply and Rejoinder. By consent, Rule is made
returnable forthwith and the Petitions are taken up for hearing and
final disposal. In any case, by our order dated 19th June 2023, we
put parties to notice that we would dispose of the Petitions finally on
the adjourned date.
3. We have heard counsel for the parties.
4. In Writ Petition No. 1268 of 2019, the Petitioners are a firm of
developers. They are the successors in title and have purchased a
plot at village Rahatni, Taluka Haveli, District Pune. The Petitioners
("RR Realtors") are not the original owners nor are they persons
who had, while it was in force, made any application under the
Urban Land Ceiling and Regulation Act 1976. The first two
Petitioners in Writ Petition No. 9722 of 2022 ("the Bhaleraos") are
the original owners with others of land at village Rahatani, Taluka
Haveli, District Pune. They entered into a Memorandum of
Understanding ("MoU") on 28th August 2015 with Petitioners
Nos. 3 and 4 ("the Tudayekars") for part of their land.
5. The common question involved in both these Petitions is
whether the authorities are justified in demanding that the
Petitioners obtain a No Objection Certificate or NOC from the
Competent Authority under the now-repealed Urban Land (Ceiling
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and Regulation) Act, 1976 ("the ULC Act") as a pre-condition to
considering and deciding the application of Petitioners for building
permissions of the respective lands in question.
6. First, a brief description of the lands in question. Both
Petitions pertain to portions of Survey No. 5/9A. This initially
measured a total of 71 Ares and it lies in village Rahatne, Taluka
Haveli, District Pune. It was originally the property of one Zumbar
Baburao Bhalerao and others in his family, the predecessors-in-title
of the Bhaleraos. Of this total area of 71 Ares, a portion of 13 Ares is
the subject matter of the RR Realtors' Writ Petition No. 1268 of
2019. Another 14 Ares is the subject matter of Writ Petition No.
9722 of 2022 filed by the Bhaleraos and the Tudayekars.
7. RR Realtors acquired title under the sale deed dated 26th
August 2018. As we have noted earlier, the Bhaleraos executed a
MoU of 20th August 2015 in favour of the Tudayekars in respect of
a portion of 14 Ares, i.e., for 10.06 Ares.
8. The origins of present trouble can be traced back 20 years to
14th October 2003. It was then that the original owners of this
Survey No. 5/9A, that is to say, Zumbar Baburao Bhalerao and
others signed a development agreement with one Sharad Kokate.
This covered 35.5 Ares from total of the 71 Ares comprised in
Survey No. 5/9A.
9. It seems that Kokate then somehow joined hands (the word
used is 'colluded') with several others: Ramesh Popat Giramkar,
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Sanjay Bhausaheb Shinde, Atul Ramchandra Panse and Sujay
Surendra Chopade, to apparently obtained by fraud an order under
the ULC Act . That covered Survey Nos. 5/9A, 5/9B and 5/13B/1
or at village Rahatani, Taluka Haveli, District Pune.
10. On 5th May 2006, there came to be made an order under
Section 8(4) of the Urban Land Ceiling ("ULC") Act. This was
after the original owners (Zumbar Baburao Bhaleraa et al) filed
mandatory returns under Section 6(1) of the ULC Act and also
following the preparation of draft statement under Section 8(3) of
that Act. The order under Section 8(4) was that the original owners
held vacant lands of 5065 sq mtrs in excess of the ceiling limit.
11. The ULC Act was repealed by the Urban Land (Ceiling and
Regulations) Repeal Act 1999. On 29th November 2007, the State
Legislature adopted the Repeal Act and it was brought into force in
the State of Maharashtra. As we shall presently see, the Repeal Act
had a solitary savings clause in Section 3.
12. We considered the jurisprudential background in our order of
6th June 2023 in Voltas Ltd & Anr v Municipal Commissioner of Thane
Municipal Commissioner & Ors.1 The relevant paragraphs of the
order in Voltas read thus:
"7. On 3rd September 2014, a Full Bench of this Court
considered the effect of the Repeal Act in Maharashtra
Chamber of Housing Industry & Ors v State of Maharashtra &
1 Interim Application No. 1463 of 2022 in Writ Petition No. 7222 of 2007.
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Anr.2 The majority held that exemptions granted under
Section 20 of the ULC Act did not abate on repeal. 3
8. The Government of Maharashtra appointed a
committee under the chairmanship of Mr Justice BN
Srikrishna (as he then was) and this committee
recommended that the issue of exemption orders under
Section 20 could and should be closed by accepting a
certain payment. That proposal by the State Government
was ultimately accepted in a Civil Appeal before the
Supreme Court (order dated 2nd July 2019).4
9. This led to the State Government issuing the first of
the GRs dated 1st August 2019 by which it effectively
offered to close all pending issues regarding surplus land
and retention land by accepting a payment, which we shall
call a premium, since this is the terminology commonly
used throughout these proceedings. There was a second GR
dated 16th September 2019.
10. To appreciate the context, and this may be necessary
because we are finally disposing of the Petition itself, it is
necessary to briefly review the position in law. We
considered these aspects in a recent judgment delivered on
30th March 2023 in Salim Alimahomed Porbanderwalla &
Anr v State of Maharashtra & Ors.5 For compactness, we
reproduce the relevant portion of that order:
12. The ULC Act's stated purposes were
two: first, to prevent land speculation and
2 2014 SCC OnLine Bom 1083 : (2014) 6 Mah LJ 829 (FB) : (2014) 6 Bom
CR 247 (FB).
3 Per SC Dharmadhikari and GS Kulkarni JJ; SC Gupte J dissenting.
Kulkarni J delivered a separate judgment concurring with Dharmadhikari J.
4 Maharashtra Chamber of Housing Industry & Ors v State of Maharashtra
& Anr, Civil Appeal No 558 of 2017 (unreported), originally Special Leave
Petition (C) No 29006 of 2014 from the Full Bench decision, supra.
5 NC: 2023:BHC-OS:2190-DB : 2023 SCC OnLine Bom 731.
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profiteering by a concentration of urban lands
in the hands of a few; and, second, to achieve
an equitable distribution of land in urban
agglomeration for the greater common good.
13. Chapter III of the ULC Act had
specific provisions directed towards these
objective. Broadly, there were three strategies.
(1) the imposing of a 'ceiling' on vacant land
in urban agglomerations, (2) acquiring lands
exceeding the ceiling, and (3) regulating
construction on such land. Chapter III thus --
and logically -- had three sub-parts. Sections
3 through 18 dealt with ceiling limits,
determining vacant land and the acquisition of
'surplus' land (land exceeding the ceiling).
Sections 19 to 22 dealt with exemptions (and
this is important for our purposes today).
Sections 23 and 24 dealt with disposal of
vacant lands. Section 3 was what we may call
the trigger provision. It contained the
prohibition -- the heart of the ULC Act. No
person could hold vacant land beyond the
prescribed ceiling limit in the areas covered by
the ULC Act. Ceilings and the method of
computing these for different agglomerations
were set out in Section 4. We pass over some
of the following sections and come to Sections
6 through 9. These set out the operability of
the Act. The 'determination' (of ceilings,
surplus land, etc) began with a compulsory
filing of statements by anyone who held
vacant land beyond the ceiling limit as on the
date of the ULC Act's commencement.
Particulars were to be submitted. The excess
vacant land was to be determined under
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Section 9. A final statement of determination
of excess vacant land (and its service) was to
be done under Section 9 (Section 8 contained
parallel provisions for a draft statement).
Section 10 dealt with the acquisition of excess
vacant land by the State Government. A
notification with particulars was required
proposing the acquisition inviting claims,
determining these, and then a declaration of
the acquisition. On publication of that
notification, the land was deemed to vest
absolutely in the State Government with
effect from the specified date. Between the
dates of the notifications, transfers were
forbidden. Then there were provisions for the
government to take possession of the acquired
lands, including a surrender or possession by
force. Compensation was the subject of
Sections 11 to 14. Section 19 dealt with
situations of exemption -- where Chapter III
would not apply to certain vacant lands (such
as those held by the State or Central
Government, banks, etc). Then came Section
20. This empowered the State Government to
exempt any vacant land on specific conditions
and also empowered it to withdraw any such
exemption for non-compliance. Section 21 set
out the circumstances in which some surplus
vacant lands would not be treated as such, and
Section 22 addressed cases under which land
owners could retain the excess vacant land.
Sections 23 and 24 had provisions for disposal
of vacant lands so acquired by the State
Government (i.e., in advancement of the
principle of equitable distribution).
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14. We need not be delayed with a fuller
examination of the remaining sections.
Historically, not all acquisitions were
completed. Some indeed were, and possession
followed. Others were pending, winding their
way through appeals and revisions.
15. But for some lands, orders came to be
made under Sections 20 and 21, sanctioning
what are called 'schemes'. Typically, these
took the form of proposals by landholders.
They had to be approved. Some were, with
conditions applied. For others, excess vacant
land was directed not to be treated as excess
(i.e., the landholder's representation for
exemption was accepted). Where there were
schemes mandated, some were completed,
others not. Where exemption conditions were
breached, there were also cases of exemptions
being withdrawn, thus restarting the cycle of
acquisition. This is how matters stood in 1999
at the time of the Repeal Act.
16. Section 3 of the Repeal Act had a
savings clause. Section 3(1) said the repeal
would not affect (1) the vesting of any land of
which possession had been taken by the State
Government; (2) the validity of any
exemption order under Section 20(1) or any
action taken thereunder;6 or (3) any payment
made to the State Government as a condition
for granting a Section 20(1) exemption.
Section 3(2)(a) said that where any land
vested in the State Government but
possession had not yet been taken by the State
6 'notwithstanding any judgment of any court to the contrary'.
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Government, and under (b) where any
amount had been paid by the State
Government regarding such land, then that
land would not be restored unless the amount
paid (if any) was refunded to the State
Government.
17. It is the savings clause that fell for
consideration. The reference to the Full
Bench was made because there were as many
as five Division Bench decisions that took
conflicting views.7 Ultimately, by a 2:1
majority, the Full Bench held:
"(a) That the repeal of the
Principal Act shall not affect the
validity of the order of exemption
7 Sundersons v State of Maharashtra, 2008 SCC Online Bom 602 : (2008)
6 Mah LJ 332 : (2008) 5 Bom CR 85 held that the Collector could not instruct
sub-registrars to insist on a NOC from the Competent Authority before
registering a document of transfer -- the invoked circular did not confer such
power. In Damodar Laxman Navare v State of Maharashtra, 2010 SCC OnLine
Bom 951 : (2010) 5 Mah LJ 92 : (2010) 6 Bom CR 611, the Division Bench
quashed two letters one preventing sanctioning of plans or registering and the
other demanding penalty for extending time to complete a Section 20 scheme.
In Mira Bhayandar Builders & Developers Welfare Association v Deputy Collector,
2009:BHC-AS:15192-DB, the Division Bench upheld a circular directing the
sub-registrar to verify if the scheme holder had sought a time extension to
complete the scheme, and, if it had, not to register a document if no time
extension had been sought (i.e., preventing transfers without completion or a
time extension being sought for completion). In Jayesh Tokarshi Shah v Deputy
Collector, (Writ Petition No 3815 of 2010, decided on 26th October 2010),
another Division Bench considered similar circulars prohibiting registration of
conveyances of flats constructed under delayed Section 20 schemes which did
not have time extensions or NOCs. That Bench perceived a conflict between
the views in Sundersons and Navare on the one hand and Mira Bhayandar on the
other. The Jayesh Tokarshi Shah court referenced another decision that held
that the powers of the State under Section 20 in cases of breach of exemption
conditions were restricted to withdrawing the exemption. The Division Bench
preferred this view, but said it would conflict with the decision in Mira
Bhayander Builders, and therefore a reference to a Full Bench was necessary.
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under section 20(1) of the
Principal Act and all
consequences following the same
including keeping intact the
power to withdraw the said
exemption by recourse to section
20(2) of the Principal Act.
Further, merely because section
20(2) is not specifically
mentioned in the saving clause
enacted by section 3(1)(b) of the
Repeal Act that does not mean
that the power is not saved. The
said power is also saved by virtue
of applicability of section 6 of the
General Clauses Act, 1897. That
section of the General Clauses
Act, 1897 applies to section 3(1)
(b) of the Repeal Act.
(b) Once having held that the
power to withdraw the exemption
also survives the repeal of the
Principal Act, then, all
consequences must follow and
the said power can be exercised
by the State Government in
accordance with law. That power
and equally all ancillary and
incidental powers to the main
power to impose conditions are
also saved and survive the repeal.
Meaning thereby the terms and
conditions of the order of
exemption can be enforced in
accordance with law.
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(c) Question Nos. 1 and 2 in the
AFFIRMATIVE, by holding that
section 6 of the General Clauses
Act, 1897 applies to the savings of
the exemption order including all
terms and conditions thereof,
validity of which or any action
taken thereunder has been saved
by section 3(1)(b)
notwithstanding any judgment of
any Court to the contrary.
(d) Question Nos. 3 and 4 will
have to be answered as above, but
by clarifying that though it would
be open for the State to enforce
the exemption order and terms
and conditions thereof, validity of
which is saved by the Repeal Act,
but having regard to the language
of section 20(2) of the Principal
Act it cannot be held that same
can be enforced only by
withdrawal of the order of
exemption in terms of sub-
section (2) of section 20, which
power also survives the repeal of
the Principal Act. In other words,
though section 3(1)(b) of the
Repeal Act read with section 6 of
the General Clauses Act, 1897
states that repeal of the Principal
Act shall not affect the validity of
the exemption order passed
under section 20(1) of the
Principal Act or any action taken
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thereunder notwithstanding any
judgment of any Court to the
contrary, still the obligations and
liabilities incurred voluntarily
under the exemption order by the
person holding the vacant land in
excess of ceiling limit need not be
enforced only by exercise of
powers under sub-section (2) of
section 20 of the Principal Act,
but by all other legally
permissible means.
(e) We also clarify that though
our answers to Questions 3 and 4
would be as aforesaid, still
whether any of these powers
could be exercised and to what
extent are all matters which must
be decided in the facts and
circumstances of each case. In
the event the State desires to take
any action in terms of section
20(2) of the Principal Act it
would be open for the aggrieved
parties to urge that such an action
is not permissible in the given
facts and circumstances
particularly because of enormous
and unexplained delay, the
parties having altered their
position to their detriment, the
proceedings as also the orders in
that behalf are grossly unfair,
unjust, arbitrary, high handed,
mala fide and violative of the
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principles of natural justice and
of the Constitutional mandate
enshrined in Articles 14, 19(1)(g),
21 and 300-A of the Constitution
of India. These and other
contentions can always be raised
and irrespective of our
conclusions, individual orders
can always be challenged and
action thereunder impugned in
appropriate legal proceedings
including under Article 226 of
the Constitution of India.
(f ) The aggrieved parties can also
urge that while seeking to enforce
the terms and conditions of the
exemption order or recalling or
withdrawing the exemption itself
the competent authorities/State
has not adhered to the provisions
of law applicable for such
exercise. Meaning thereby there
has to be a specific order in that
behalf and mere issuance of
administrative instructions or
circulars will not suffice. All such
objections can as well be raised
and in individual cases.
(g) By our answers to Questions 1
to 4 above, we should not be
taken to have held that there is a
mandate under the Repeal Act to
withdraw the order of exemption
passed under section 20(1) of the
Principal Act and the
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Government is obliged to
withdraw it in the event the said
order or any terms or conditions
thereof have not been satisfied
rather violated or breached. In
the light of the wording of section
20(2) of the Principal Act the
State is competent to withdraw,
but only after giving a reasonable
opportunity to the persons
concerned for making
representation against the
proposed withdrawal. The
Government is obliged to pass an
order withdrawing any exemption
and needless to clarify that in the
event such an order is passed it
can be impugned and challenged
by the aggrieved parties in
appropriate proceedings on the
grounds that it is unreasoned
and/or in the given facts and
circumstances such an order
could not have been passed or
need not be passed and the
Government could have granted
time to comply with the terms
and conditions or that the terms
and conditions relying on which
and for breach of which the
exemption order is withdrawn are
not violated or breached, they
were not mandatory and have
been substantially complied with
or were incapable of being
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complied with because of several
factors, obstacles and hurdles
each of which cannot be
enumerated or termed as
exhaustive in any manner.
Therefore, if the Government is
not mandated to withdraw the
exemption order, but can ensure
compliance of the terms and
conditions without withdrawal of
the exemption order or without
recourse to section 20(2) of the
Principal Act, then, needless to
clarify that all liabilities,
obligations and equally the
remedies available to the parties
are unaffected by repeal and can
be resorted to in the afore stated
events.
(h) In the light of our conclusions
as enumerated in paragraph No.
125 above we hold that the view
taken by the Division Bench in
Vithabai Bama Bhandari v. State
of Maharashtra reported in 2009
(4) Mh. L.J. 693: 2009 (3) Bom.
C.R. 663 (Writ Petition No.
4241/2008 decided on 31st
March/16th April, 2009) does
not lay down the correct law and
to the extent indicated
hereinabove."
11. This is the jurisprudential background to the Repeal
Act and Section 20 of the ULC Act.
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12. As regards Section 21, this Court passed an order on
11th March 2015 in Writ Petition No. 1178 of 2014, Swastik
Constructions v State of Maharashtra & Ors.8 That decision
inter alia held that Section 21 of the ULC Act would not
survive the repeal of the ULC Act. The conditions of the
Exemption Order under Section 21 are not enforceable.
The Division Bench held, inter alia following an earlier
decision of this Court in Voltas Ltd & Anr v Additional
Collector and Competent Authority & Ors:9
9. The effect of an order under Sub-
Section (1) of Section 21 is that the vacant
land held in excess of ceiling limit which is
covered by the order under Sub-Section (1) is
declared as not be excess land for the
purposes of Chapter III and permit such
person to continue to hold such land for the
purposes set out in Sub-Section (1), subject to
the terms and conditions incorporated in the
said order. Sub-Section (2) provides that if
there is any contravention of the conditions
incorporated in the permission under Sub-
Section (1) of Section 21, the Competent
Authority is empowered to declare such land
to be a vacant land held in excess of ceiling
limits and thereupon all the provisions of
Chapter III shall apply to the land held in
excess of ceiling limit.
10. It will be necessary to make a reference
to Sections 3 and 4 of the Repeal Act. From
Clause (b) of Sub-Section (1) of Section 3, it
appears that notwithstanding the Repeal, the
8 2015 SCC OnLine Bom 3848.
9 NC: 2008:BHC-AS:14572-DB : 2008 SCC OnLine Bom 701 : (2008) 5
Bom CR 746.
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validity of any order granting exemption
under Sub-Section (1) of Section 20 will not
be affected. In short, the validity of such order
has been saved. Section 4 provides that all
proceedings relating to any order made or
purportedly made under the Principal Act
(ULC Act) pending immediately before the
commencement of the Repeal Act, before any
Court, Tribunal or other authority shall abate.
Section 4 saves the proceedings only
relating to Sections 11, 13 and 14 of the
ULC Act insofar as such proceedings are
relatable to the land, the possession of
which has been taken by the State
Government.
11. We have perused the order dated 27th
November, 1983 under Sub-Section (1) of
Section 21 of the ULC Act. The legal effect of
order under Sub-Section (1) of Section 21 is
already noted above. Once there is such an
order under Sub-Section (1) of Section 21, the
vacant land held in excess of ceiling limit
cannot be treated as an excess land for the
purposes of Chapter III. Only in case of
breach of terms and conditions of the order
under Sub-Section (1) of Section 21 that the
power under Sub-Section (2) can be exercised
by the Competent Authority of declaring the
vacant land to be an excess land. On plain
reading of the Repeal Act, the validity of
order under Sub-Section (1) of Section 21
has not been saved. Even the power under
Sub-Section (2) of Section 21 has not been
saved. Therefore, till the date of Repeal
(i.e. 29th November, 2007), the said land
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was not a vacant land held in excess of
ceiling limit. Though the repeal Act does
not save the validity of an order under Sub-
Section (1) of Section 21 of the ULC Act,
after 29th November, 2007, the provisions
of Chapter III cannot be applied to the said
land.
(Emphasis added)
13. A Special Leave Petition against this order was
dismissed on 5th October 2015, 10 and the decision in
Swastik Constructions thus attained finality.
14. To return to the facts of the matter at hand, following
the Swastik Constructions decision and the dismissal of the
Special Leave Petition, the State Government issued a
Circular dated 5th December 2018. This specifically
references the Swastik Constructions judgment and it directs
all Municipal Corporations (which would include the
TMC) not to insist on compliance with ULC conditions
under Section 21 of the ULC Act. A copy of that Circular is
annexed as Exhibit 2 to the Interim Application."
13. In the present Petitions, it is clear that there were no further
proceedings after the order under Section 8(4) of the now repealed
ULC Act. The Petitioners predecessors never lost possession; it was
never taken from them.
14. The inevitable consequence is, therefore, that all proceedings
have lapsed and abated.
10 SLP (C) No 18067 of 2015.
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15. On 1st March 2008 and 7th June 2011 (pages 38 and 39 of
Writ Petition No. 1268 of 2019) we find government resolutions
directing that in cases not covered by Sections 10(3), 10(5), 20 and
21, it was not necessary to obtain permission of a competent
authority for selling or developing properties in urban areas.
16. There remained the question of the fraudulent order obtained
on a Power of Attorney by Kokate et al. That order was dated 11th
March 1999. The original land owners were not connected with it.
This Court issued directions in a Public Interest Litigation ("PIL")
and an offence was registered against Kokate and two other accused.
The original owners were only shown as witnesses. On 22nd
February 2011, in the pending Criminal Public Interest Litigation
No. 6 of 2008, this Court constituted a Special Investigative Team.
That order was carried to the Supreme Court by the state
government which, on 11th March 2011, stayed the High Court
order. The CID completed its investigation and on 16th August 2011
filed a charge sheet. The owners of the land were named as
witnesses. No charges or offences were registered against him. That
trial is going on.
17. On 9th May 2017, on an application for building permission
made by RR Realtors, the 3rd Respondent namely, the Pimpri
Chinchwad Municipal Corporation ("PCMC") demanded a No
Objection Certificate from the Competent Authority in the ULC
department and, for want of that NOC, declined to grant
permission. On 26th August 2018, the original owners, Zumbar
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Baburao Bhalerao et al, executed a sale deed in favour of RR
Realtors in respect of 13 Ares from Survey No. 5/9A.
18. At page 379 is an Affidavit in Reply filed by Respondents Nos.
1 and 2 namely, the State of Maharashtra and the Competent
Authority under the ULC Act. This Affidavit says that the
fraudulent order in question relates to land owned by one Dilip
Sadashiv Devkar. The Petitioners are not concerned with this land.
19. There is a Rejoinder of 17th November 2022 pointing out that
neither the Petitioners nor their transferors (original owners) had
anything at all to do with this bogus ULC order.
20. There is a further Affidavit of the Pimpri Chinchwad
Municipal Corporation of 15th February 2023 reiterating that the
building permission was refused for a failure to produce an NOC
from the ULC competent authority and mentioning the Supreme
Court's stay order referred to earlier. The matters before the High
Court and the Supreme Court related to the criminal cases and the
fraudulent order which, as noted above, does not even relate to the
lands in question.
21. There is no manner of doubt that no further steps were taken
after the Section 8(4) order under the ULC Act. Possession was
never taken and the original owners/transferees continued to be in
possession.
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22. In the companion Writ Petition, the facts are broadly similar
except for the aspect of the MoU in question. But they too have
been told that an NOC from the competent authority under the
ULC Act is required.
23. We believe that the stand of the 3rd Respondent, the PCMC,
is not one that can be sustained in law. It proceeds on the
assumption that the Section 8(4) order survives the repeal, which is
contrary to law, or, at any rate, that steps have been taken pursuant
to that order, which is contrary to the record. In view of the law as
set out above and the decisions of this Court regarding Section 3 of
the Repeal Act, this insistence on a NOC cannot be sustained.
24. In the RR Realtors Writ Petition prayer clause (e) (introduced
by amendment) at page 12A reads thus:
"(e) by an appropriate writ, order or direction, this
Hon'ble Court be pleased to direct the Respondent No. 5
Corporation to consider and decide the application of the
Petitioners for building permission in respect of land
admeasuring 14 Ares from and out of Survey No.5/9A,
situated at Rahatani, Taluka Haveli, District Pune, on its
own merits, without insisting for issuance of NOC from the
Respondent Nos. 3 and 6 and irrespective of pendency of
the appeal before the Hon'ble Supreme Court and on the
basis of directions issued by this Hon'ble Court in several
writ petitions, as expeditiously as possible."
25. In the Bhalerao-s-Tudayekars Writ Petition the relevant
prayer clause (d) at page 31 is as follows:
"(d) by an appropriate writ, order or direction, this
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Hon'ble Court be pleased to direct the Respondent No. 5
Corporation to consider and decide the application of the
Petitioners for building permission in respect of land
admeasuring 14 Ares from and out of Survey No.5/-
A(C.T.S. No.1015), situated at Rahatani, Taluka Haveli,
District Pune, on its own merits, without insisting for
issuance of NOC from the Respondent Nos. 3 and 6 and
irrespective of pendency of the appeal before the Hon'ble
Supreme Court and on the basis of directions issued by this
Hon'ble Court in several writ petitions, as expeditiously
possible."
26. Having regard to the position in law and the facts as briefly set
out above, it is clear that there is no basis for the insistence by the
PCMC of an NOC from the ULC Authorities. The PCMC cannot
possibly insist on such an NOC after the Repeal Act given that there
is only Section 8(4) order and nothing further.
27. For these reasons, we make Rule absolute in both Petitions in
the following terms:
(a) The Pimpri Chinchwad Municipal Corporation will
consider and decide the applications by the Petitioners
in the two Writ Petitions for building permissions in
respect of lands admeasuring 13 Ares in the RR
Realtors Petition and 14 Ares in the Bhaleraos -
Tudayekars Petition on merits and in accordance with
extant development planning rules, policies, law,
regulations and norms but without insisting on an NOC
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from the competent authority under the ULC Act or an
NOC from the CID.
(b) These applications are to be decided at the earliest
possible and, in any event, within 12 weeks from today.
28. Rule is made absolute in these terms. There will be no order
as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
31st July 2023
