Bombay High Court

Gajanan S/O Nana Gadwale vs The State Of Maharashtra, Thr. ... on 3 February, 2025

Author: Avinash G. Gharote

Bench: Avinash G. Gharote

2025:BHC-NAG:1050-DB
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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR.

                               WRIT PETITION NO. 5229 OF 2023

                           Gajanan S/o Nana Gadwale,
                           aged about 56 years,
                           Occupation : Business,
                           R/o Tushar Nagar, Yavatmal Road,
                           Near Rest House, Karanja (Lad),
                           Distt.Washim.                                   ......PETITIONER.

                                     -VERSUS-

           1.              The State of Maharashtra,
                           Through its Secretary,
                           Department of Urban Development,
                           Mantralaya, Mumbai.

           2.              The Municipal Council, Karanja (Lad)
                           Tah. Karanja, District Washim.

           3.              President, Municipal Council, Karanja (Lad),
                           Tah.Karanja, District Washim.

           4.              The Collector, Washim,
                           District Washim.

           5.              Shri Harishchandra Mahadeo Meshram,
                           aged about 57 years,
                           Occu.: Agriculturist,
                           R/o Vedant Nagar, Manora Road,
                           Karanja Lad, Dist.Washim.


           -----------------------------------------------------------------------------------------
                 Mr.Akshay A. Naik, Sr.Adv.a/b Mr.Bhushan Dafle, Adv. for the petitioner.
                             Mr. Sachin Narale, AGP for the respondents-State.
                Mr. F.T.Mirza, Sr.Adv.a/b Mr.P.S.Thakur, Adv.for the respondent Nos.2 & 3.
                                Mr. S.A.Mohta, Adv.for the respondent No.5.
           -----------------------------------------------------------------------------------------


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                                   CORAM : AVINASH G. GHAROTE &
                                          ABHAY J. MANTRI, JJ.
                                   DATE         : 3RD FEBRUARY, 2025

ORAL JUDGMENT (PER: Avinash G. Gharote, J.)

Heard.

2. Rule. Rule returnable forthwith. The petition is heard finally with

the consent of the learned counsel for the parties.

3. The order dated 19.11.2024 records the following position.

"The petition questions the communication dated 01-6-2023 issued by the respondent No.2, to the petitioner, by which restriction has been put upon the right of the petitioner, to sell various plots in the layout upon Khasra No.182/1, admeasuring 2.68 Hectares situated in Mouza Kali at Karanja (Page No. 31), and so also the subsequent communication dated 19-7-2023 (Page No.33) demanding an amount of Rs.75,00,000/- on account of respondent No.2 having made construction of cement roads and underground sewer pipeline in the said layout.

2. The factual position indicates that the petitioner, who was the owner of Survey No.182/1 applied to the Tahsildar, Karanja, for grant of N.A. permission and sanction for a layout upon the land, which came to be granted by the order dated 20-6-2000 (Page No.19). This was, however, subject to certain conditions indicating therein that the land shall be used only for residential purpose and the possession of road BHIMTE/KHUNTE 7-WP-5229.23-J.odt

and open spaces in the layout were to be vested in the Gram- Panchayat, Kali; the roads were to be constructed to the satisfaction of the Gram-Panchayat and the petitioner was responsible to comply with the rules regarding air, water and pollution.

3. It is the contention of Mr. A.A. Naik, learned Senior Counsel, that in pursuance to the aforesaid N.A. and layout sanction order dated 20-6-2000, a layout was laid, roads were built and so also an open sewerage system was also laid in the layout. Various plots have been sold to multiple persons who have constructed their houses and are residing there. One such Plot No.76 was sold to respondent No.5 in the year 2006 by the sale-deed dated 21-12-2006 (Page No.

35). No complaint of any nature whatsoever was received from 2000 till 2018 when the area on which the aforesaid layout situated stood vested in the Municipal Council, Karanja.

4. Consequent to the vesting of the area in which layout was situated with the respondent No.2, under its municipal obligations, it had prepared a plan for concretization of the roads in the aforesaid layout and also construction of the sewer line, and a work order on 09-9-2019 was already issued by the respondent No.2 in favour of a contractor-

Yashpal Sharma in which the completion period of twelve months was given. It is not in dispute that the said contractor has already completed the said work.

5. The respondent No.5 made a complaint regarding unhygienic conditions, absence of roads, etc. in the aforesaid

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layout to the Sub-Divisional Officer, Karanja on 20-12-2021, which came to be rejected on 12-4-2022 (Page No.45) on the ground that it was the duty of the Municipal Council to carry out the development activities. It is thereafter that in pursuance to complaint dated 06-6-2022 made by the respondent No.5, that notice dated 12-10-2022 (Page No.

26) was issued by the Municipal Council, Karanja-respondent No.2 to the petitioner to show cause upon the complaint filed by the respondent No.5. The respondent No.5, however, had filed Writ Petition No.4477/2022 which came to be disposed of by the order dated 28-9-2022 by directing the Chief Office of respondent No.2 to decide the representation of the respondent No.5 dated 06-6-2022 in accordance with law within eight weeks. Since the work of the concrete road and sewer line already stood completed by respondent No.2, issued the impugned communications dated 01-6-2023 (Page No.31 and 19-7-2023 (Page No.33) to the petitioner demanding the amount of the Rs.75,00,000/- expended by it for the purpose of construction of the cement road and sewer line in the aforesaid layout. Mr. A.A. Naik, learned Senior Counsel for the petitioner submits, that in terms of the obligations in the N.A./Layout sanction order dated 20-6-2000 the petitioner had already constructed the road and the sewer line which according to him, is demonstrated from the inspection reports dated 25-11-2022 (Page No.81) and 23-5-2023 (Page No.82). He, therefore, submits, that the obligation of the petitioner in terms of the N.A./Layout approval order, already stood complied with by the petitioner. It is also his contention, that from 2000 till 2018 neither the Gram-Panchayat, Kali nor for that matter any

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person who had bought a plot in the layout, had lodged any complaint of any nature whatsoever regarding any absence of road or sewer line in the said layout. It is also his contention that the Gram-Panchayat, Kali had not issued any notice in this regard to the petitioner at any point of time before the area being vested in the Municipal Council. Infact, to demonstrate that the road was already constructed, he invites our attention to the sale-deed in respect of Plot No.76 in favour of respondent No.5 (Page No.37) which indicates the eastern and southern boundaries of the said Plot No.76, to be the colony roads. This sale-deed is dated 21-12-2006 (Page No.39). It is also not disputed that the respondent No.5 has constructed his house upon the Plot No.76 in the year 2010 and was residing there since that point of time, however, till 2021 no complaint of any nature whatsoever has been lodged by him in this regard. He, therefore, submits, that the obligation to provide sanitation water and road under the terms of the N.A./Layout approval order, already stood complied with by the petitioner long back and, therefore, the demand for the sum of Rs.75,00,000/- by the respondent No.2 for constructing cement roads and sewerage system was clearly unjustified, as that is the municipal obligation of the respondent No.2 and has no concern with the petitioner, as the respondent No.2 does not dispute that in pursuant to the layout being laid on the aforesaid land of Khasra No.182/1 no grievance was raised by the Gram-Panchayat, Kali of the open space road and sewer line having not been handed over to the Gram-Panchayat, Kali in terms of the order dated 20-6-2000.

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6. Mr. F.T. Mirza, learned Senior Counsel for respondent No.2 does not dispute the inspection reports dated 25-11-2022 (Page No.81) and 23-5-2023 (Page No.82). He fairly admits, that before the commencement of the work of constructing roads and drainage in the aforesaid layout no show cause notice was given to the petitioner of any nature whatsoever. Neither is there any material available on record to indicate the state of affairs regarding the road and sewerage system in the said layout to indicate what was its nature and extent. There is, therefore, no material on record to discern the absence of such road and sewer line in the said layout, rather on the contrary the narration of the facts above indicates a factual position otherwise. Mr. F.T. Mirza, learned Senior Counsel for respondent No.2 further relies upon the provisions of Section 328(1) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as the "Act") to justify the demands made in the impugned communications.

7. In so far as plea regarding Section 328(1) of the aforesaid Act is concerned, the same contemplates an obligation and responsibility of a person to do something under the provisions of the Act. Though it is contended by Mr. F.T. Mirza, learned Senior Counsel, that the use of the word "whereby" would indicate obligations under various other statutes also, however, a plain reading of the said phrase in the context in which it has been used, would indicate that the obligation for a person to do something should stem from the provisions of the aforesaid Act and not

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otherwise. The contention, therefore, in this regard is not acceptable

8. He, however, fairly admits that respondent No.2 has placed the cart before the horse by not getting on record the position extant before the work under the contract was commenced and completed. He, however, seeks some time to ascertain whether the contract awarded in favour of the contractor anything can be discerned."

4. Today, we have heard the respective learned counsel for the parties.

5. There is no change in the aforesaid situation as recorded earlier.

6. Though Mr. Mirza, learned Senior Counsel for the Respondent No.2

has thereafter filed estimates and Google maps to contend, that there was

no development made earlier in point of time on account of which the

Respondent No.2, upon inclusion of the Village Kali in the Municipal

Council area, was forced to shell out 75 Lakhs and more, for the purpose of

constructing cement roads, however, what we find, is that the terms and

conditions of the order dated 20.06.2000 by which layout has been

sanctioned does not impose any obligation upon the owner of Survey

No.182/1, to lay down cement roads. All that it imposes upon the owner of

the land, is an obligation to construct the road to the satisfaction of the