Bombay High Court
Sneha Shirish Gadiya vs The State Of Maharashtra Through ... on 23 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1821-DB
wp-9343.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9343 OF 2023
Mrs. Sneha W/o Shirish Gadiya,
Age-52 years, occu:Agri. & Business,
R/o-Gut No.403, Village Golwadi,
Taluka and District-Aurangabad.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Department of Urban
Development, Mantralaya,
Mumbai-32,
2) Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-32,
3) The Collector,
Aurangabad,
4) Special Land Acquisition Officer,
(Special Unit), Aurangabad,
5) City Industrial and Development
Corporation Ltd.,
Through its Chief Administrator,
Udyog Bhavan, Town Centre,
New Aurangabad - 431003,
6) Administrator, New Towns,
City Industrial and Development
Corporation Ltd., Waluj Mahanagar,
Aurangabad,
wp-9343.23
2
7) The Additional Town Planning Officer,
CIDCO, Waluj Mahanagar,
Aurangabad.
...RESPONDENTS
...
Mr. D.P. Palodkar Advocate for Petitioner.
Mr. P.S. Patil, Additional G.P. for Respondent Nos.1 to 4.
Mr. V.P. Deshmukh Advocate for Respondent Nos.5 to 7.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 23rd JANUARY, 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel appearing for the respective parties finally, by consent.
2. The petitioner is the owner and possessor of the land
admeasuring 0 Hectare 14 R out of Gut No.131 of village
Valadgaon, Taluka and District-Aurangabad. Respondent No.5
CIDCO, came to be appointed as Special Planning Authority of
Waluj notified area by the State Government. The draft
development plan of Waluj notified area came to be published on
16th April 1992. The State Government accorded sanction to the
development plan under Section 31 of the Maharashtra Regional
wp-9343.23
3
Town Planning Act, 1966 (for short "the MRTP Act") and it was
published in the official gazette on 14 th August 2001. It was
shown in the said development plan that the land belonging to
the petitioner would be affected by the "play ground"
reservation.
3. It is the case of the petitioner that the planning authority
was under obligation to acquire the properties of the private
persons affected by the reservation within the period of ten
years from the date of enforcement of final development plan.
However, respondent No.5 is not interested in acquiring the land
nor even in a position to develop the said land as per its
reservation. Therefore, the petitioner was constrained to issue
notice under Section 127 of the MRTP Act on 8 th March 2021,
which was received by respondent No.6 on the same day. Reply
has been given by respondent No.6 on 8 th July 2021 stating that
reservation is falling under the category of 'Optional
Development' (reservation). In the said reply it has been further
stated that as per the resolution passed of the Board of Directors
of the CIDCO on 24th April, 2017, a policy of giving compensation
in the form of only Development Right Certificate (TDR) towards
wp-9343.23
4
acquisition of lands under the DP Reservation of 'Optional
Development (reservation)" has been approved. The petitioner
replied to the said communication of respondent No.6 on 10 th
August 2021 pointing out that the stand of the respondent is
contrary to the land acquisition policy and the notification of the
Government dated 5th July 2016. It was pointed out that choice
of selecting mode of compensation is with the land owners as
per the provisions of law and the planning authority cannot force
the land owner to accept the compensation in the form of TDR /
DRC. The period for taking action by respondent No.6 has lapsed
due to its own inaction and therefore, the petitioner is
constrained to file the present Writ Petition.
4. One Mr. Ashutosh Vasant Uikey, Additional Chief Planner,
CIDCO, has filed affidavit-in-reply on behalf of respondent Nos. 5
to 7. It is contended that the Petition is not tenable in view of
the fact that the petitioner filed Writ Petition No. 9343 2023 for
lapsing of reservation of land which is notified for part of Waluj
CIDCO, Aurangabad. The petitioner had challenged the said
reservation and it was pointed out by the respondent that Waluj
project is based on unique policy of public and private
wp-9343.23
5
participation. In the development plan, it is envisaged that
CIDCO will act as catalyst for the development by acquiring
100% land in the Growth Center areas and develop the same
with all physical and social infrastructure. 25% land from each
land holding falling within the Phase-I will be acquired by paying
land compensation and the said land will be used for 18 Mtrs.
wide roads and above, mini stadium, general public utilities and
civil services along the roads. As the project was proposed to be
developed through public participation, it was envisaged that
some of the reservations will be developed by the land owners
themselves. The play ground is outside the Growth Centers and
therefore the land owners may develop the same or they may
surrender lands under these reservations to the CIDCO for
development. It has been contended that CIDCO is likely to incur
exorbitant cost for acquiring and developing infrastructure on
such lands and the pace of development in all the Nagars outside
Growth Centers is not viable if the burden of acquiring these
lands under reservations of optional development would be
through monetary compensation and therefore, the resolution
came to be passed by the Board of Directors of CIDCO on 27 th
April 2017. The proposal was, therefore, forwarded to the State
wp-9343.23
6
Government for approval. It is contended that respondent CIDCO
would give compensation in the form of D.R.C. i.e. Development
Right Certificate towards acquisition of lands under the D.P.
reservations of 'optional development' and therefore,
compensation for acquired land cannot be given as per the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013. As the interest of the
public is involved, it should not be treated that the reservation
for the play ground has lapsed. The petitioner is required to be
directed to take the benefit of D.R.C.
5. Heard learned Advocate Mr. Palodkar for the petitioner,
learned Additional Government Pleader Mr. Patil for respondent
Nos.1 to 4 and learned Advocate Mr. Deshmukh for respondent
Nos.5 to 7.
6. In order to cut short, it can be said that all the learned
Advocates have argued in support of their respective
contentions.
7. As aforesaid, most of the facts are admitted. Respondent
wp-9343.23
7
No.5 is the appropriate authority. The plans were sanctioned and
the land belonging to the petitioner is shown to be affected with
the reservation of 'play ground'. Certainly the development of
the land was under the MRTP Act and therefore the provisions of
the said Act would govern in the matter. Certainly, the owner of
the land should have the choice either to accept compensation or
the accept the Development Right Certificate if offered by the
developing authority. But herein this case it appears that
respondent Nos.5 to 7 want to force the petitioner to accept the
Development Right Certificate, to which the petitioner is not
ready. Respondent Nos. 4 to 7 cannot go against the provisions
of law. We follow the decision of the Full Bench of this Court in
Writ Petition No.2231 of 2019 (Shree Vinayak Builders and Developers
vs. State of Maharashtra and others) . The ratio laid down in Girnar
Traders (2) vs. State of Maharashtra, 2007 (7) SCC 53, Girnar Traders
(3) vs. State of Maharashtra, 2011(3) SCC 1, Shrirampur Municipal
Council vs. Satyabhamabai, 2013(5) SCC 627 , would be applicable
in this matter. In spite of giving notice under Section 127 of the
MRTP Act, respondent No.5 has not taken further appropriate
steps. Rather with a belated reply it appears that respondent
No.5 insisted the petitioner to accept the Development Right
wp-9343.23
8
Certificate. Further in reply to the communication made by
respondent No.5 when petitioner made it known to respondent
No.5 that she is not willing to accept the Development Right
Certificate, yet the further steps have not been taken. It will
have to be held that the reservation on the petitioner's land has
lapsed. In consequence the petitioner's land is free from
reservation and is available for the development by her.
8. The Writ Petition therefore, deserves to be allowed. Hence
the following order:-
ORDER
(I) The Writ Petition stands allowed.
(II) It is declared that the reservation of the 'play ground' on
the land of the petitioner i.e. admeasuring approximately 0
Hectare 14 R land out of Gut No.131 of village Valadgaon, Taluka
and District-Aurangabad has lapsed and the land is free from
reservation and available for development to the petitioner as
per the use permissible to the adjacent land.
wp-9343.23
(III) Respondent Nos.1 and 2 are directed to issue the order as
prescribed under Section 127(2) of the MRTP Act, 1966
regarding lapsing of reservation in respect of the petitioner's
land, within a period of FOUR WEEKS from today.
(IV) Respondents are directed to issue development permission
in favour of the petitioner in respect of her land without insisting
for publication of order under Section 127(2) of the MRTP Act,
1966.
(V) Rule is made absolute in above terms.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24
