[Cites 22, Cited by 0]
Bombay High Court
Virendra Sundardas Patel And Others vs The State Of Maharashtra And Others on 4 December, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:34037-DB
WP-8195-2023 and ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8195 OF 2023
Parvati Sahakari Gruhnirman Sanstha,
Through GPA holder -
Azharoddin s/o. Ahmed Syed,
Age : 40 Years, Occ. Business,
r/o. Galli No.20, Opposite MGM Hospital,
Gate No.6, Baijipura, Aurangabad ..Petitioner
Vs.
The State of Maharashtra,
Through its Secretary, Urban Development
Department, Mantralaya, Mumbai ..Respondents
----
Mr.Rameez M. Shaikh, Advocate for petitioner
Ms.Chaitali Choudhari - Kutti, AGP for respondent no.1
Mr.Anand P. Bhandari, Advocate for respondent nos.2 to 4
----
AND
WRIT PETITION NO.4638 OF 2022
Dilip Madanlal Patel,
Age : 66 years, Occ. Retired,
r/o.4-5-5, Madan Kore Gulmandi,
Opp.Mewad Tea House,
Aurangabad and others ..Petitioners
Vs.
The State of Maharashtra,
Through its Secretary, Urban Development
Department, Mantralaya, Mumbai ..Respondents
2 WP-8195-2023 and ors
AND
WRIT PETITION NO.4637 OF 2022
Virendra Sundardas Patel,
Age : 67 years, Occ. Business,
r/o. 4-9-65, Aurangpura,
Aurangabad and others ..Petitioners
Vs.
The State of Maharashtra,
Through its Secretary, Urban Development
Department, Mantralaya, Mumbai ..Respondents
----
Mr.Devdatta Palodkar, Advocate for petitioner
Ms.Chaitali Choudhari - Kutti, AGP for respondent no.1
Mr.Anand P. Bhandari, Advocate for respondent nos.2 and 3 in WP
No.4638/2022 and
Mr.A.R.Vaidya, Advocate for respondent nos.2 and 3 in WP
No.437/2022
----
AND
WRIT PETITION NO.11163 OF 2016
M/s. Kalpak Developers,
Through its Partner,
Shodhan Yashwant Joshi,
Age : Major, Occ. Business,
Address:Kranti Chowk,
102, Veershanti Building,
Opp. Shivaji Maharaj Statue,
Adalat Road, Aurangabad ..Petitioner
Vs.
Municipal Corporation,
Aurangabad,
through its Municipal Commissioner
and anr. ..Respondent
3 WP-8195-2023 and ors
AND
WRIT PETITION NO.1724 OF 2022
Abdul Hafeez Shaikh Abdul Hak,
Age : 52 years. Occ. Business
Shodhan Yashwant Joshi,
R/o. Old Bayjipura, Tq. Aurangabad,
Dist. Aurangabad. ..Petitioner
Vs.
The State of Maharashtra,
Through its Urban Development
Department, Mantralaya, Mumbai
2. Aurangabad Municipal Corporation,
Aurangabad Through Its Administrator.
3. Superintendent of Land Records Aurangabad
Taluka and District Aurangabad. ...Respondents
----
In Writ Petition No:8195 of 2023:-
Mr.Rameez M. Shaikh, Advocate for petitioner
Ms.Chaitali Chaudhari-Kutti, AGP for respondent no.1
Mr.Anand P. Bhandari, Advocate for respondent nos.2 to 4
In Writ Petition Nos.4637 of 2022 and 4638 of 2022 :-
Mr.Devdatta Palodkar, Advocate for petitioners
Mr.Anand P. Bhandari, Advocate for respondent nos.2 and 3
(W.P.No.4638/2022)
Mr.A.R.Vaidya, Advocate for respondent nos.2 and 3 (W.P. Nos. 4637
of 2022 and 4638 of 2022)
In Writ Petition No.11163 of 2016:-
Mr.P.N.Sonpethkar, Advocate for petitioner
4 WP-8195-2023 and ors
Mr.A.P.Bhandari, Advocate for respondent no.1
Ms.Chaitali Chaudhari-Kutti, AGP for respondent no.2
----
In Writ Petition No:1724 of 2022:-
Mr.D.P. Palodkar, Advocate for petitioner
Ms.Chaitali Chaudhari-Kutti, AGP for respondent no.1 and 3
Mr.S.S. Tope, Advocate for respondent no.2
----
CORAM : R.G.AVACHAT AND
ABASAHEB D. SHINDE, JJ.
RESERVED ON : OCTOBER 14, 2025
PRONOUNCED ON : DECEMBER 04, 2025
FINAL ORDER :-
These Writ Petitions are taken up together for hearing
and decision since common questions of fact and law arise therein.
2. The petitioners claim compensation in terms of Transfer
of Development Rights (TDR) in consideration of release/
relinquishment of their lands for construction of development
planned roads. Although the petitioners had claimed similar reliefs
for relinquishment of lands for open spaces and internal roads, the
claims have been given up. The common thread of argument on
behalf of all the petitioners is that the respondent - Aurangabad
Municipal Corporation (AMC) made the petitioners relinquish certain
lands for DP roads as a condition for sanctioning of Development of
5 WP-8195-2023 and ors
their other lands.
3. Learned counsel for the petitioners relied on certain
authorities to submit that the right to property is a constitutional
right, in view of Article 300A of the Constitution of India. They
would further submit that the said right has now been recognised as
human right as well. No land owner can be dispossessed of his
property without following due process of law and giving him just
and adequate compensation. According to learned counsel, the
delay in filing the Writ Petitions is, therefore, of little significance.
According to them, the State ought to have recourse to the statutory
provisions for acquisition of the lands for DP roads. The AMC ought
to have offered the petitioners compensation before they were made
to surrender their respective lands. According to learned counsel,
the acts of surrender of lands could not, therefore, be termed to be
voluntary. They, therefore, urged for allowing the Writ Petitions.
4. Learned counsels for the respondent - AMC would, on the
other hand, submit that in one of the Writ Petitions (8195 of 2023),
the petitioner is a co-operative housing society. Its erstwhile office-
bearers had relinquished the lands for DP road. The officials of the
said society, who have filed present Writ Petitions, did not place on
6 WP-8195-2023 and ors
record any authorisation of its members or erstwhile office-bearers to
file the present petition. According to learned counsels, over 20
years have passed post the petitioners executed the registered
deeds relinquishing their respective lands for DP roads. The delay
and latches would come in their way. Learned counsel relied on the
judgment of the Apex Court in the case of State of Maharashtra
Vs. Digambar, MANU/SC/0740/1995. According to him, when the
lands were released, the concept of grant of TDR was not there. The
communications rejecting the petitioners request for grant of TDR
have not been challenged. They would further submit that the
illegality or otherwise of the relinquishment deeds (contractual right)
could not be gone into in the writ jurisdiction. According to them,
judgment in the case of Sk. Ibrahim s/o. Shaikh Maula Sahab
(Writ Petition No.5080 of 2015, decided on 27.07.2016) is of
little assistance to the petitioners since under the relinquishment
deeds, the petitioners therein had not surrendered the lands for DP
road. According to them, the petitioners are also not entitled to any
benefits in respect of the portion utilised for access to the main road.
The petitioner in Writ Petition No.11163 OF 2016 has already been
given TDR in respect of the land admeasuring 5983 sq. metres
affected by the DP road. According to learned counsel, for all these
reasons the Writ Petitions deserve to be dismissed.
7 WP-8195-2023 and ors
5. We have considered the submissions advanced. Perused
the documents relied on. Before adverting to the factual matrix,
reference to the judgment of the Apex Court in the case of Bernard
Francis Joseph Vaz and another Vs. Government of Karnataka
and others, (2025)7 SCC 580 is necessary:-
"40. This Court, in the case of Vidya Devi v. State of Himachal Pradesh
and Ors. (2020) 2 SCC 569 : 2020 INSC 23, while surveying the earlier
judgments on the issue, has observed thus:
12.1. The Appellant was forcibly expropriated of her property in
1967, when the right to property was a fundamental right guaranteed
by Article 31 in Part III of the Constitution. Article 31 guaranteed the
right to private property [State of W.B. v. Subodh Gopal Bose,
1953:INSC:89 : (1953) 2 SCC 688 : AIR 1954 SC 92], which could not
be deprived without due process of law and upon just and fair
compensation.
12.2. The right to property ceased to be a fundamental right by the
Constitution (Forty-Fourth Amendment) Act, 1978, however, it
continued to be a human right [Tukaram Kana Joshi v. MIDC,
2012:INSC:503 : (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] in a
welfare State, and a constitutional right Under Article 300-A of the
Constitution. Article 300-A provides that no person shall be deprived
of his property save by authority of law. The State cannot dispossess
a citizen of his property except in accordance with the procedure
established by law. The obligation to pay compensation, though not
expressly included in Article 300-A, can be inferred in that Article.
[K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1]
12.3. To forcibly dispossess a person of his private property,
8 WP-8195-2023 and ors
without following due process of law, would be violative of a human
right, as also the constitutional right Under Article 300-A of the
Constitution. Reliance is placed on the judgment in Hindustan
Petroleum Corporation. Ltd. v. Darius Shapur Chenai [Hindustan
Petroleum Corporation. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC
627], wherein this Court held that: (SCC p. 634, para 6)
6. ... Having regard to the provisions contained in Article 300-A
of the Constitution, the State in exercise of its power of "eminent
domain" may interfere with the right of property of a person by
acquiring the same but the same must be for a public purpose and
reasonable compensation therefor must be paid.
(emphasis supplied)
12.4. In N. Padmamma v. S. Ramakrishna Reddy [N. Padmamma v.
S. Ramakrishna Reddy, 2008:INSC:720 : (2008) 15 SCC 517], this
Court held that: (SCC p. 526, para 21)
21. If the right of property is a human right as also a
constitutional right, the same cannot be taken away except in
accordance with law. Article 300-A of the Constitution protects such
right. The provisions of the Act seeking to divest such right, keeping
in view of the provisions of Article 300-A of the Constitution of India,
must be strictly construed.
(emphasis supplied)
12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P. [Delhi Airtech
Services (P) Ltd. v. State of U.P., 2011:INSC:590 : (2011) 9 SCC 354 :
(2011) 4 SCC (Civ) 673], this Court recognised the right to property as
a basic human right in the following words: (SCC p. 379, para 30)
30. It is accepted in every jurisprudence and by different political
thinkers that some amount of property right is an indispensable
safeguard against tyranny and economic oppression of the
9 WP-8195-2023 and ors
Government. Jefferson was of the view that liberty cannot long subsist
without the support of property. "Property must be secured, else
liberty cannot subsist" was the opinion of John Adams. Indeed the
view that property itself is the seed-bed which must be conserved if
other constitutional values are to flourish, is the consensus among
political thinkers and jurists.
(emphasis supplied)
12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat [Jilubhai
Nanbhai Khachar v. State of Gujarat, 1994:INSC:272 : 1995 Supp (1)
SCC 596], this Court held as follows: (SCC p. 627, para 48)
48. ... In other words, Article 300-A only limits the powers of the
State that no person shall be deprived of his property save by
authority of law. There has to be no deprivation without any sanction
of law. Deprivation by any other mode is not acquisition or taking
possession Under Article 300-A. In other words, if there is no law,
there is no deprivation.
(emphasis supplied)
12.7. In this case, the Appellant could not have been forcibly
dispossessed of her property without any legal sanction, and without
following due process of law, and depriving her payment of just
compensation, being a fundamental right on the date of forcible
dispossession in 1967.
12.8. The contention of the State that the Appellant or her
predecessors had "orally" consented to the acquisition is completely
baseless. We find complete lack of authority and legal sanction in
compulsorily divesting the Appellant of her property by the State.
12.9. In a democratic polity governed by the Rule of law, the State
could not have deprived a citizen of their property without the
sanction of law. Reliance is placed on the judgment of this Court in
10 WP-8195-2023 and ors
Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC,
2012:INSC:503 : (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein
it was held that the State must comply with the procedure for
acquisition, requisition, or any other permissible statutory mode. The
State being a welfare State governed by the Rule of law cannot
arrogate to itself a status beyond what is provided by the
Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar [State of
Haryana v. Mukesh Kumar, 2011:INSC:731 : (2011) 10 SCC 404 :
(2012) 3 SCC (Civ) 769] held that the right to property is now
considered to be not only a constitutional or statutory right, but also a
human right. Human rights have been considered in the realm of
individual rights such as right to shelter, livelihood, health,
employment, etc. Human rights have gained a multi-faceted
dimension.
..................
12.13. In a case where the demand for justice is so compelling, a
constitutional court would exercise its jurisdiction with a view to
promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of
T.N., 1974:INSC:198 : (1975) 1 SCC 152 : 1975 SCC (L&S) 22]
41. In the case of Ultra-Tech Cement Ltd. v. Mast Ram and Ors.
2024:INSC:709, this Court observed thus:
D. Role of the State Under Article 300-A of the Constitution
43. The Right to Property in our country is a net of intersecting rights
which has been explained by this Court in Kolkata Municipal
Corporation v. Bimal Kumar Shah, 2024:INSC:435. A division bench of
this Court identified seven non-exhaustive sub-rights that accrue to a
landowner when the State intends to acquire his/her property. The
relevant observations of this Court under the said judgment are
reproduced below:
11 WP-8195-2023 and ors
...27.
... Seven such sub-rights can be identified, albeit non-exhaustive.
These are : i) duty of the State to inform the person that it intends to
acquire his property - the right to notice, ii) the duty of the State to
hear objections to the acquisition - the right to be heard, iii) the duty
of the State to inform the person of its decision to acquire - the right
to a reasoned decision, iv) the duty of the State to demonstrate that
the acquisition is for public purpose - the duty to acquire only for
public purpose, v) the duty of the State to restitute and rehabilitate -
the right of restitution or fair compensation, vi) the duty of the State
to conduct the process of acquisition efficiently and within prescribed
timelines of the proceedings - the right to an efficient and expeditious
process, and vii) final conclusion of the proceedings leading to vesting
- the right of conclusion...
[Emphasis Supplied]
This Court held that a fair and reasonable compensation is the sine
qua non for any acquisition process.
44. In Roy Estate v. State of Jharkhand, 2009:INSC:659 : (2009) 12
SCC 194; Union of India v. Mahendra Girji, (2010) 15 SCC 682 and
Mansaram v. S.P. Pathak, 1983:INSC:135 : (1984) 1 SCC 125, this
Court underscored the importance of following timelines prescribed
by the statutes as well as determining and disbursing compensation
amount expeditiously within reasonable time.
45. The subject land came to be acquired by invoking special
powers in cases of urgency Under Section 17(4) of the 1894 Act. The
invocation of Section 17(4) extinguishes the statutory avenue for the
landowners Under Section 5A to raise objections to the acquisition
proceedings. These circumstances impose onerous duty on the State
to facilitate justice to the landowners by providing them with fair and
reasonable compensation expeditiously. The seven sub-rights of the
landowners identified by this Court in Kolkata Municipal Corporation
(supra) are corresponding duties of the State. We regret to note that
the amount of Rs. 3,05,31,095/- determined as compensation under
12 WP-8195-2023 and ors
the Supplementary Award has not been paid to the landowners for a
period of more than two years and the State of Himachal Pradesh as a
welfare State has made no effort to get the same paid at the earliest.
46. This Court has held in Dharnidhar Mishra (D) v. State of Bihar,
and State of Haryana v. Mukesh Kumar, 2011:INSC:731 : (2011) 10
SCC 404 that the right to property is now considered to be not only a
constitutional or statutory right, but also a human right. This Court
held in Tukaram Kana Joshi thr. Power of Attorney Holder v. M.I.D.C.,
2012:INSC:503 : (2013) 1 SCC 353 that in a welfare State, the
statutory authorities are legally bound to pay adequate compensation
and rehabilitate the persons whose lands are being acquired. The
non- fulfillment of such obligations under the garb of industrial
development, is not permissible for any welfare State as that would
tantamount to uprooting a person and depriving them of their
constitutional/human right.
47. That time is of the essence in determination and payment of
compensation is also evident from this Court's judgment in Kukreja
Construction Co. v. State of Maharashtra, wherein it has been held
that once the compensation has been determined, the same is
payable immediately without any requirement of a representation or
request by the landowners and a duty is cast on the State to pay such
compensation to the land losers, otherwise there would be a breach
of Article 300-A of the Constitution.
48. In the present case, the Government of Himachal Pradesh as a
welfare State ought to have proactively intervened in the matter with
a view to ensure that the requisite amount towards compensation is
paid at the earliest. The State cannot abdicate its constitutional and
statutory responsibility of payment of compensation by arguing that
its role was limited to initiating acquisition proceedings under the
MOU signed between the Appellant, JAL and itself. We find that the
delay in the payment of compensation to the landowners after taking
away ownership of the subject land from them is in contravention to
13 WP-8195-2023 and ors
the spirit of the constitutional scheme of Article 300A and the idea of
a welfare State.
49. Acquisition of land for public purpose is undertaken under the
power of eminent domain of the government much against the wishes
of the owners of the land which gets acquired. When such a power is
exercised, it is coupled with a bounden duty and obligation on the
part of the government body to ensure that the owners whose lands
get acquired are paid compensation/awarded amount as declared by
the statutory award at the earliest.
50. The State Government, in peculiar circumstances, was expected
to make the requisite payment towards compensation to the
landowners from its own treasury and should have thereafter
proceeded to recover the same from JAL. Instead of making the poor
landowners to run after the powerful corporate houses, it should have
compelled JAL to make the necessary payment."
6. It is true that the petitioners herein executed
relinquishment deeds of certain lands for construction of DP roads. It
is also true that the relinquishment deed, the subject-matter of Writ
Petition No.8195 of 2023 was executed by erstwhile/then officials of
the petitioner - Co-operative housing society. This petition has been
filed by their successors in office. It is necessary to assume that it is
for and on behalf of all the members of the housing society.
Exception to the authority of the present office-bearers to file the
Writ Petition is of trivial nature and not going to the root of the
matter in the light of the facts and circumstances of the case. While
in the relinquishment deed dated 04.07.2002, the subject-matter of
14 WP-8195-2023 and ors
Writ Petition No.4637 of 2022, no land for DP road has been released.
On the contrary, there is specific recital, to the effect the
compensation therefor (D.P. road) would be determined lateron.
7. It could not be said to be coincidence that all the
petitioners did execute the registered relinquishment deeds in favour
of the respondent - AMC releasing their lands for construction of DP
roads. There is substance in the oral submissions made on behalf of
all these petitioners that those relinquishment deeds could not be
termed to have executed voluntarily. It is true that those documents
have been registered way back in 1997 to 2004. Little over 20 years
have passed. In the interregnum, there was no whisper on the part
of the petitioners against execution of those documents. It may also
be true that in the writ jurisdiction, contractual matters could not be
gone into. The facts and circumstances of these cases are however
peculiar. It was informed across the bar that most of the Municipal
Corporations for granting development permission, resort to such
methodology of putting condition on the landowners to execute
relinquishment deed releasing certain lands for construction of DP
roads. One can read between the lines. It takes no time to infer that
the AMC herein must have made the petitioners execute the
registered relinquishment deeds as implied condition for grant of
15 WP-8195-2023 and ors
permission for development of their other lands. Admittedly, all the
relinquishment deeds have been executed along side grant of
development permission in favour of respective executants. The
acts of AMC indulging in such methodology needs to be strongly
deprecated. Needless to mention that no owner of the land could
voluntarily surrender the land, that too, in favour of the municipal
corporation. Nothing has prima facie been shown to infer the
petitioners to have executed the relinquishment deeds for non-
consideration. Consideration for execution of those deeds appear to
be grant of permission for development of their other lands.
8. It is true that the petitioners have approached this court
after a long spell of little over 20 years. The Apex Court in the case
of State of Maharashtra vs. Digambar reported in AIR 1995 SC
1991 observed thus:-
"18. Laches or undue delay, the blame-worthy conduct of a person in
approaching a Court of Equity ' in England for obtaining discretionary
relief which disentitled him for grant of such relief was explained
succinctly by Sir Barnes Peacock, tong ago, in Lindsay Petroleum Co.
v. Prosper Armstrong (1874) 3 PC 221 thus:
Now the doctrine of laches in Courts of Equity is not an arbitrary or
a technical doctrine. Where it would be practically unjust to give a
16 WP-8195-2023 and ors
remedy, either because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has, though perhaps not waiving
that remedy, yet put the other party in a situation, in which it would
not be reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases, lapse of time and delay are most
material. But in every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay, that delay of
course not amounting to a bar by any statute or limitations, the
validity of that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such cases, are,
the length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
Justice or injustice in taking the one course or the other, so far as it
relates to the remedy.
19. Whether the above doctrine of laches which disentitled grant of
relief to a party by Equity Court of England, could disentitle the grant
of relief to a person by the High Court in exercise of its power under
Article 226 of our Constitution, when came up for consideration before
a Constitution Bench of this Court in Moon Mills Ltd. v. M. R. Melier,
President, Industrial Court, Bombay AIR 1967 SC 1450 it was
regarded as a principle that disentitled a party for grant of relief from
a High Court in exercise of its discretionary power under Article 226 of
the Constitution."
9. This Court in the case of Sk. Ibrahim (supra) granted
17 WP-8195-2023 and ors
similar relief to the petitioners therein. The relinquishment deed was
executed by the petitioners therein in the year 1999. It was
specifically observed in paragraph 7 of the judgment thus:-
7. .....................................
.....................................
.....................................
.....................................
This court vide its order dated 6th May, 2014 in Writ
Petition No. 5179 of 2003 and 5183 of 2003 has held
that, even if, the land is under the development plan
road in the lay out the owner of the said lay out is
entitled for the compensation."
10. It appears that the decision of this court in afore referred
Writ Petition attained finality, i.e. the Corporation either did not
challenge the same or their challenge there-against failed. The
petitioners, therefore, need to be granted similar reliefs. Further
more in one of the petitions, namely Writ Petition No.11163 of 2016,
the petitioner has been given TDR in consideration of surrender of
the land for DP road. The relinquishment deed was executed on
28.06.2004 The TDR was granted in the recent past. Was it for
extraneous consideration? Then how can the AMC be allowed to
contend the petitioner to suffer for delay and latches.
11. For the sake of convenience the lands affected by the
DP/Service roads are given in tabular form below:-
18 WP-8195-2023 and ors
Sr. Writ Petition Area
Location
No. No. (Square Metres)
Survey Nos.186/2 and
186/4, situated at
(i) 8195 of 2023 2325
Harsul, Tq. and Dist.
Chh. Sambhajinagar
Survey No.70,
Situated at village
(ii) 4638 of 2022 1250
Satara, Tq. and Dist.
Chh. Sambhajinagar
Gut No.70, situated at
village Satara, Tq.
(iii) 4637 of 2022 1440
and Dist. Chh.
Sambhajinagar
57, Situated at village
(iv) 11163 of 2016 1376.25 Satara, Tq. and Dist.
(Service road)
Chh. Sambhajinagar
Survey No.157/1 at
(v) 1724 of 2022 3419 Harsul, Tq. and Dist.
Aurangabad.
12. We, therefore, allow these Writ Petitions directing the
respondent - AMC to give the petitioners TDR in terms of the
relevant rules as on the date of filing of these Writ Petitions in
consideration of the lands (details whereof is given in the tabular
form above) surrendered for DP/Service roads, as stated in the
tabular form above.
[ABASAHEB D. SHINDE, J.] [R.G. AVACHAT, J.]
...........
KBP
