Pranali Ravindra Puttewar vs Union Of India, Thr. Secretary, Dept. Of ...
2025 Latest Caselaw 5057 Bom

Bombay High Court

Pranali Ravindra Puttewar vs Union Of India, Thr. Secretary, Dept. Of ... on 29 April, 2025

Author: Avinash G. Gharote

Bench: Avinash G. Gharote

2025:BHC-NAG:4459-DB

                                                             WP 4722 of 2019 - J.odt
                                            1


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH AT NAGPUR.


                                WRIT PETITION NO.4722/2019

                 PETITIONER :         Pranali Ravindra Puttewar, Aged about 38
                                      years, Occ.: Business, R/o House No.35,
                                      Nirmal Nagri, Umred Road, Nagpur-24.
                                        ...VERSUS...
                 RESPONDENTS:    1.   Union of India, Through its Secretary,
                                      Department of Urban Housing and Poverty
                                      Allevation, New Delhi.
                                 2.   State of Maharashtra, through its
                                      Secretary, Department of Housing & Urban
                                      Affairs Mantralaya, Mumbai-32.
                                 3.   Maharashtra Real Estate Regulation
                                      Authority (MahaRERA), through its
                                      Chairman, 3rd Floor, A-Wing, Slum
                                      Rehabilitation Authority, Administrative
                                      Building, Anant Kanekar Marg, Bandra (E),
                                      Mumbai-400051.
                                 4.   Nagpur Municipal Corporation, Through
                                      its Commissioner, Nagpur.
                                 5.   Nirmal Ujwal Credit Co-operative Ltd.
                                      (Multistate), through its Secretary, Pramod
                                      s/o Natthuji Manmode, aged about 53
                                      years, Occu.: Business, R/o 193, Main
                                      Road, Nandanwan, Nagpur-440009.
                                 6.   The Executive Engineer, Maharashtra State
                                      Electricity Distribution Company Ltd.,
                                      Umred Road, Sub-Station, Nagpur-440024.
                                                                                      WP 4722 of 2019 - J.odt
                                                         2

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Mr. I.S. Charlewar, Advocate for Petitioner.
Mr. N.S. Deshpande, DSGI for respondent No.1
Mr. P.P. Pendke, AGP for respondent No.2
Mr. S.P. Deshpande, Advocate for respondent No.3
Mr. A.M.Quazi, Advocate for the respondent No.4.
Mr. S.K.Mishra, Sr. Advocate a/b Mr. P.B. Patil, Advocate for respondent No.5.
Mr. S.V. Purohit, Advocate for the respondent No.6.
----------------------------------------------------------------------------------------------------------



 CORAM :                             AVINASH G. GHAROTE                              &
                                     ABHAY J. MANTRI, JJ.
DATE                                  29.04.2025


ORAL JUDGMENT :                      (PER : AVINASH G. GHAROTE, J.)

1. Heard.

2. Rule. Rule made returnable forthwith. The petition is heard

finally with the consent of the learned Counsel for the parties.

3. The petition seeks a direction, against the respondent No.4,

Nagpur Municipal Corporation, to take appropriate action against the

respondent No.5 and to remove the unauthorized construction as

indicated in the notice dated 25/07/2017, issued by the respondent

No.4. That is the only relief which remains for consideration in this

petition, in view of the order dated 17/12/2024, passed by this Court,

which records the statement of the learned Counsel for the petitioner, WP 4722 of 2019 - J.odt

that the complaint filed by the petitioner with the respondent No.3

under Section 59(2) of the Real Estate (Regulation and Development)

Act, 2016 (for short hereinafter "RERA Act, 2016") has already been

decided on 04/01/2019, by imposing a penalty of Rs.6 Crores on the

respondent No.5, which is presently in challenge before the Hon'ble

Apex Court, on account of which, the grievance raised in the petition in

that regard did not survive.

4. The notice dated 25/07/2017 (pg.61), was issued by the

respondent No.4, to the respondent No.5 in which the following

illegalities were indicated.

^^vuqlqph** tfeuhP;k rif"kyklg vuf/kd`r fodklkps fooj.k (A) 24.00 eh-:afnP;k jLR;kr dsys cka/kdke (ERD FLOOR)

(i) bZysDVªhd lcLVs"ku = 16.10 x 12.60 = 202.66 m2

(ii) VªkUlQkWjej nkHkksG QkÅaMs"ku %& 2 Nos. x 1.50 x 2.00 = 6.00 m2

(iii) okWVj fVªVesUV IykUV = 10.30 x 6.80 + 7.30 x 3.00 = 91.94 m2 300.80 m2 (B) bZekjr Ø-B3 ef/ky 7 O;k etY;kps ok<ho cka/kdke

(i) 62.996 x 8 Flats = 503.968 m2 (A) + (B) 300.80 + 503.968 = 804.768 m2"

It is material to note, that out of the above illegalities, it is

an admitted position on record, that the one indicated in para-B of the WP 4722 of 2019 - J.odt

above statement, which relates to new construction on the 7 th floor of

the Building No.B-3 made by the respondent No.5 stands regularized by

the respondent No.4.

5. The respondent No.5 had floated a scheme of development

in respect of the land of Khasra Nos.15/1, 16/1, 18/1, 2 and 20 of

Mouza Harpur, Tahsil and District Nagpur. The respondent No.5 had

submitted building plan for sanctioning a group housing scheme, to the

respondent No.4, which came to be sanctioned vide Building Permit

No.1604/TP/E/NMC/1578, dated 01/09/2008 (pg.92). The plan

sanctioned indicated a 24 meters wide Development Plan Road inside

the eastern boundary of the above said land, in which, there was a

compound wall, which was proposed to be demolished. This is apparent

from the perusal of the plan, the sanctioning of which building plan on

01/09/2008, is not disputed by the respondent Nos.4 and 5.

5.1. The respondent No.5, thereafter had submitted a revised

plan for sanction, which came to be sanctioned, on 04/08/2012. A

further layout plan came to be submitted for sanction by the respondent

No.5, which came to be sanctioned on 09/12/2019 (pg.93), however,

this second revised sanction plan dated 09/12/2019 (pg.93), does not WP 4722 of 2019 - J.odt

show the existence of the 24 meters wide development plan road inside

the eastern boundary of the layout of the respondent No.5. What is

shown instead thereof, are three structures therein, as indicated in the

notice dated 25/07/2017 (pg.62), which are (1) electric sub-station,

(2) transformer Dabhol foundation and (3) water treatment plant. This

would make it apparent, that the area of 24 meters wide DP road

instead of being left open, has been taken over and made use of by the

respondent No.5, for the three structures as indicated in the notice

dated 25/07/2017.

5.2. Mr. Mishra, learned Senior Counsel for the respondent

No.5, does not dispute the above two sanctioned plans. The learned

Senior Counsel however, submits, that there is no commercial

exploitation of the said DP road land, as what is constructed therein,

are structures, which are for benefit of the residents. We are not

impressed with this argument for the reason, that an area, which is

reserved in the sanctioned development plan, for Nagpur for being used

as a 24 meters wide road, in terms of the provisions of the Maharashtra

Regional and Town Planning Act, 1966 (for short hereinafter "MRTP

Act"), cannot be diverted from the said use, unless the development

plan is got modified, in terms of Section 37 of the MRTP Act, or the WP 4722 of 2019 - J.odt

reservation gets lapsed, in terms of Section 126/127 of the said Act.

That this has not been done, is not a disputed position, in view of

which, the user of the land reserved for 24 meters DP road cannot be

permitted to be diverted for the benefit of the respondent No.5 or the

residents of the locality/township, which the respondent No.5 has

constructed.

5.3. Mr. Mishra, learned Senior Counsel further relies upon the

provisions of section 5 of the Maharashtra Gunthewari Developments

(Regularisation, Upgradation and Control) Act, 2001 (hereinafter

referred to as the "Gunthewari Act, 2001" for the sake of brevity), to

contend, that the provisions of the development plan would stand

modified or relaxed, as may be required, in terms of the aforesaid

provision and therefore, no action can be taken in this regard. What is

however necessary to be noted, is that the sanction of the

layout/building plans of the respondent No.5, are not under the

provisions of the Gunthewari Act, 2001, which is apparent from a

perusal of both the plans, dated 01/09/2008 and 09/12/2019 (Pgs.92

and 93) as there is no endorsement therein, that they have been

sanctioned in terms of the provisions of the Gunthewari Act, 2001.

Though Mr. Mishra, learned Senior Counsel invites our attention to the WP 4722 of 2019 - J.odt

communication dated 12/07/2005 (pg.142) to contend, that the

aforesaid two layout plans, have been sanctioned under the Gunthewari

Act, 2001, that however, is a factually incorrect position, as the

communication dated 12/07/2005 (Pg.142), relates to Khasra Nos.53,

57/1, 58 of Mouza Dighori, whereas the layout plans, which are

referred to above at pages 92 and 93, relate to, a layout on Khasra

No.20, 18(part), Mouza Harpur, Umrer Road, Nagpur and therefore, the

communication dated 12/07/2005 has no relevance or bearing

whatsoever, upon the matter in issue. The plea therefore, seeking to

take benefit, of the Gunthewari Act, 2001 is bereft of any merits and is

rejected.

5.4. Mr. Mishra, learned Senior Counsel then relies upon the

provisions of Section 53(3) of the MRTP Act, to contend, that it creates

an embargo, from taking any action, in terms thereof, unless the

provisions of Section 44 of the MRTP Act are exhausted. We, however,

are not impressed by this argument, for the reason, that Section 53(3),

merely states, that if any person is aggrieved by a notice under Section

53(1) requiring removal of unauthorized development, it is open for

such person to apply for permission under Section 44 for retention.

However, in the instant matter, no such application has been made, and WP 4722 of 2019 - J.odt

even otherwise, was not permissible to be made, as the provisions of

Section 44 would not be applicable, for retention of any construction,

made upon lands reserved under the development plan. The contention

therefore, is rejected.

5.5. Mr. Mishra, learned Senior Counsel then submits, that since

there are more than 700 families residing in the township, any direction

to remove water treatment plant, electric sub-station and transformer

would lead to disrupting the life of the 700 families and therefore, in

view of larger public interest, the action of removing the construction

made on the DP road ought not to be taken. In our considered opinion,

it was necessary for the respondent No.5, to ensure, that the 24 meters

wide DP road was kept open and after misusing the same by

encroaching it and making construction as indicated in the notice dated

25/07/2017, it is not open for the respondent No.5 to hide behind the

700 families residing there and seek non-implementation of the notice

dated 25/07/2017.

5.6. In this context, it would be necessary to note, that the

respondent No.5 is not as gullible, as is being posed. This is so for the

reason, that when the respondent No.5 had applied for the second WP 4722 of 2019 - J.odt

revised sanction, it was specifically aware, about the above illegal

construction on the 24 meters wide DP road and the necessity to

remove it. When this was pointed out, to the respondent No.5 by the

NMC/ respondent No.4 by its communication dated 28/01/2019

bearing No.822, (Pg.69), the respondent No.5, through its secretary had

submitted on 21/11/2019 an undertaking in the form of an affidavit

(Annexure-R-4-B, Pg.71), whereby it had undertaken to remove the

construction made upon the 24 meters wide DP road in the eastern

portion of the layout and handover vacant possession of the same to the

respondent No.4-NMC. What was asked for in the letter dated

21/08/2019 by the respondent No.4/NMC and what was assured by the

respondent no.5, in undertaking given, was in the following terms:

Sr. Statement as contained in Undertaking of the respondent No.5 as No. the letter dated contained in the undertaking dated 21/08/2019 by the NMC/ 21/11/2019.

respondent No.4.

01. 5- vfHkU;kle/khy iqosZdMhy 24-00 lanfHkZr i=krhy vV Ø-5 uqlkj%&vfHkU;kl e/khy iqosZ eh- :an Mh-ih-jksM e/khy dMhy 24-00 eh- :an Mh-ih-jksM e/khy jLR;k varxZr iw.kZ jLR;kvarxZr iq.kZ tkxspk cks>k tkxspk cks>k fojghr rkck o gLrkarj.k ukxiqj e-u-ik-ps fogjhr rkck o gLrkarj.k e-u-ik- LFkkoj foHkkxkdMs ns.ks izfrKkFkhZ Eg.kwu eyk ca/kudkjd ps LFkkoj foHkkxkdMs dj.ks ca/kd- jkfgy ;k ckcrps vkEgh vki.kkal la;qDr dkxni=koj kjd jghy- cka/kdke udk'kk eatwjhiwohZ ukxiqj e-u-ik-P;k uxj jpuk foHkkx egkuxj ikfydk rQsZ vko';d dk;Zokgh dj.;kr ;koh-

WP 4722 of 2019 - J.odt

02. 6- vfHkU;kle/;s fcuk eatqjh fo:/n lanfHkZr i=krhy vV Ø-6 uqlkj%& vfHkU;klk laca/khy dsysY;k cka/kdke rlsp 24-00 fouk eatqjh dsysys cka/kdke rlsp 24-00 eh- :an Mh-ih- eh- :an :an Mh-ih-jksM oj dsysY;k jksM oj vlY;kl] vlysys bysDVªhd VªkWUlQkjeZj STP VWd bysDVªhd VkWUlQkjeZj STP VWd bR;kfn cka/kdke vlY;kl rs Lo[kpkZus dk<wu Vkd.ks vkeph bR;knh ps cka/kdke Lo[kpkZus tckcnkjh jkfgy ;kph geh nsrks-

           dk<wu           Vkd.;kph              vkiyh
           ¼vtZnkjkph½ jkghy-
           vfHkU;klkrhy            [kqY;k    tkxse/;s
           dsysys eanhjkps cka/kdkekckcr laiq.kZ
           tckcnkjh vtZnkjkph vkgs- /kkfeZd
           LFkGkckcr x`g foHkkxkph ijokuxh
           vko';d vkgs- ;kpk lfoLrj@
           foLr`r vkjk[kMk lknj dj.;kr
           vkysyk          ukgh-       R;keqGs      ;k
           cka/kdkekpk        eatqjhdjhrk        fopkj
           dj.;kr vkysyk ukgh-

03. 8- udk'kkr fioG;k jaxkuh n'kZfoysys lanfHkZr i=krhy vV Ø-8 uqlkj%& udk'kkr fioG;k jaxkus cka/kdke Lor% Lo[kpkZus ikMwu n'kZfoysys cka/kdke vkEgh vkeP;k Lo[kpkZus ikMwu Vkd.;kph Vkd.;kdjhrk tckcnkjh vtZnkjkph tckcnkjh ?ksr vkgs ;kph vkEgh geh nsrks- jkghy-

5.7. A perusal of the above table would indicate, that the

respondent No.5, was fully aware regarding the existence of the 24

meters DP road as well as the fact, that it had been illegally occupied by

it, by constructing electric transformer, Sewage Treatment Plant (STP)

and electric substation etc., which it had undertaken to remove as a

condition for the sanction awarded to the second revised layout plan.

WP 4722 of 2019 - J.odt

The respondent No.5, therefore, cannot now contend that it was

unaware of the aforesaid position or that the construction of the

transformer/water treatment plant and electric substation were not on

the DP road.

5.8. Mr. Purohit, learned counsel for respondent No.6-MSEDCL

rightly contends, that it had nothing to do with the sanction, and since

the respondent No.5, had shown the location for erection of the sub-

station and the transformer, had called upon the respondent No.5 to

make payment of the requisite charges, which having been deposited by

the respondent No.5, it had erected the sub-station and transformer at

the cost and risk of the respondent No.5 and therefore, was not

responsible in the matter, regarding violation of the terms of the

sanction or the respondent No.5 gobbling up the 24 meters wide DP

road. He, however, submits that as of date, since there were four feeder

lines going out from the sub-station, it would be impossible to relocate

it, for which, he invites our attention to the communication dated

28/02/2020. In our considered opinion, any difficulty in shifting the

sub-station or the transformer cannot come in the way of the law taking

its course and correcting an illegality. Though an expression of

helplessness is being portrayed by the respondent No.6, in our WP 4722 of 2019 - J.odt

considered opinion, shifting of the substation/transformer/water

treatment plant is not an impossibility, but would only require greater

effort and expenses by the respondent No.5, with the assistance of the

personnel of the respondent No.6. We, therefore cannot condone the

illegality committed by the respondent No.5 of making illegal

construction of substation/transformer/water treatment plant on the

land of 24 meters wide DP road, as it would be setting an absolutely

bad precedent, on the basis of which, builders would have a free hand

to present a fait accompli, after having committed an illegality.

6. In view of the above discussion, we allow the writ petition,

by directing the respondent No.5 to remove the construction of the

substation/transformer/water treatment plant and all other

constructions, which may have been made by respondent No.5 on the

area of 24 meters wide DP road at its costs and expenses. The same

shall be done, within a period of four months from today. The

respondent No.6, shall provide whatever assistance, as may be required,

in this regard, by the respondent No.5. In case, this is not done, then it

shall be the obligation of the respondent No.4 to do, within a

reasonable time therefrom.

WP 4722 of 2019 - J.odt

7. Considering the conduct of the respondent No.5 in

gobbling up 24 meters DP road, we deem it a fit and proper case to

impose a costs of Rs.5,00,000/- (Rupees Five Lakhs Only) upon the

respondent No.5, the cost to be paid to the Raman Science Centre and

Planetarium, Nagpur within a period of one week from today. The

respondent No.5 is permitted to pay the cost to the said Association by

NEFT/RTGS or any other online mode of payment, permissible in law.

The Bank details of the said Raman Science Centre, Nagpur are as

under :-

"Name : - Raman Science Centre and Planetarium, Nagpur Account No.:- 0306101022235 Name of Bank : CANARA BANK Branch Name & Address :- Sitabuldi Branch, Nagpur IFSC Code :- CNRB0000306, MICR Code : 440015002"

8. Rule is made absolute in the aforesaid terms.

                                          (ABHAY J. MANTRI, J.)              (AVINASH G. GHAROTE, J.)



                     KHUNTE, SPS / Wadkar, SPS




Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 29/04/2025 15:17:09