Bombay High Court
Bharati Pushpendra Raghuwanshi vs The State Of Maharashtra And Others on 17 March, 2025
2025:BHC-AUG:7571-DB
1 WP.10445-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10445 OF 2018
Bharati Pushpendra Raghuwanshi,
Age : Adult, Occu. Business,
R/o Anand Bhuvan, Pardeshi Pura,
Nandurbar, District Nandurbar. ... Petitioner.
VERSUS
1. The State of Maharashtra,
Through Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The District Collector,
Nandurbar, District Nandurbar.
3. The Special Land Acquisition Officer,
Nandurbar District Collector Office
Compound, Nandurbar.
4. The Chief Executive Officer,
Municipal Council,
Nandurbar.
5. The Director of Town Planning,
Maharashtra State, Pune,
District Pune.
6. Town Planning Officer,
Nandurbar,
District Nandurbar. ... Respondents.
...
Advocate for Petitioner : Mr. Amit S. Savale.
AGP for Respondents/State : Mr. A. S. Shinde.
Advocate for Respondent No.4 : Mr. D. S. Bagul.
...
CORAM : S. G. MEHARE, AND
SHAILESH P. BRAHME, JJ.
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RESERVED ON : 14.02.2025
PRONOUNCED ON : 17.03.2025
JUDGMENT :
(Per S. G. Mehare, J.) :-
1. Rule. Rule made returnable forthwith and heard finally
by consent of the parties.
2. The petitioner is seeking direction against the contesting
respondent to pay the compensation under the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 ("Act 2013" for
short) for the land affected reserved for 24 meter wide road in
the development plan.
3. In brief, the petitioner has a case that he is the owner of
the lands Survey Nos.241/A/B, 242/1, 2, 3 and 4 situated
within the municipal limits of Nandurbar. The development
plan for Nandurbar city was sanctioned on 14.03.2007 which
was brought into force from 30.04.2007. A 24 meter wide
road was proposal, passing through the fields of the petitioner.
He had made the application to respondent No.4 to reconsider
the width of the sanctioned road and reduce it to 18 meters.
Respondent No.4 had passed the resolution accordingly and
send the modified proposal to the Government. On
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17.03.2012, the proposed modification under Section 37 of
MRTP Act came to be published in the Government
notification. On 13.07.2012, the petitioner communicated
respondent No.4 to de-mark the boundaries of the said layout
as the possession of the roads and open spaces in the layout
has already taken by respondent No.4 while considering his
layout. However, contrary to the proposed modification
published in Government Notifications dated 03.09.2009 and
17.03.2012 and contrary to the resolutions of respondent No.4,
respondent No.3 proposed to acquire the subject lands beyond
18 meter wide road and proposed to construct the road of 24
meter wide. Respondent No.4 granted him the temporary
commencement certificate for constructing the road. He was
time and again requested respondent Nos.2, 3 and 4 for the
proposed acquisition and initiation of acquisition proceeding.
On 06.12.2016, he was constrained to issue a notice to the
respondents. Surprisingly, on 31.12.2026, respondent No.4
responded that it was rightly acquired the subject lands for
construction of 24 meter wide road and the affected land is
handed be over to Municipal Council for Rs.1/-. In the
nutshell, the petitioner's contention is that the proposed road
in the development plan from his land cannot be taken for
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Rs.1/- against the sanction of layout for the remaining land.
He is entitled to receive the compensation.
4. The contesting respondent No.4 filed affidavit-in-reply
opposing the statements made in the petition being incorrect.
In a development plan dated 14.03.2007, 24 meter wide DP
road was sanctioned. However, the Municipal Council has
proposed to reduce it to 18 meters. They admitted that the
application for laying out the plots in the lands of the
petitioner was moved to respondent No.4 and tentative layout
proposal was sent to the Assistant Director of the Town
Planning on 17.08.2010. The Assistant Director of Town
Planning, Nandurbar recommended the said layout for
sanction by letter dated 20.11.2010. Accordingly, the Municipal
Council sanctioned demarcated layout on 21.02.2012. Again,
the Municipal Council submitted the tentative layout proposal
to the Assistant Director of Town Planning by letter dated
08.02.2013. It was recommended by the said Authority by
letter dated 12.08.2013. Again, for those survey numbers
Municipal Council communicated the petitioner about final
demarcated layout. The Assistant Director of Town Planning
while recommending for sanction of proposed layout by its
letter dated 12.08.2013, imposed the condition that 28 meter
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wide DP road in the layout should be transferred to the
Municipal Council, Nandurbar for a nominal cost of Rs.1/-. The
petitioner executed the agreement of transferred of the said
land for nominal compensation of Rs.1/-. Therefore, there is no
question to acquire the said land for DP road and pay the
compensation.
5. Respondent Nos.1, 5 and 6 have also filed their affidavit-
in-reply. In the measurement plan No.382 of 2010, dated
05.07.2010 of the suit land 18 meter wide existing road was
shown. The Office of Assistant Director of Town Planning,
Nandurbar after considering the proposal of 24 meter wide
development plan road has proposed the road widening of six
meter to the said existing 18 meter wide road passing through
the suit lands and recommended for approval vide letter dated
12.08.2013. Besides, the condition that the land owner has to
transfer 24 meter wide development plan road to the
Municipal Council at nominal cost of Rs.1/-, the petitioner has
already availed benefit of 10% open space required to be kept
in the layout considering the area running after excluding the
area under 24 meter wide development plan. The petitioner
also availed the benefit of using 24 meter wide development
road as access road to their plots. Thus, the petitioner has
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taken duel benefit for 24 meter wide development plan road.
In such circumstances, the petitioner does not deserve
compensation as claimed. They have prayed to dismiss the
writ petition.
6. Both sides have relied on the case laws those would be
discussed in the later part of the judgment.
7. Question is "Is petitioner entitled to the compensation
for land acquired for laying 24 meter road and should not
surrender land for 9 meter road and waive his right over the
compensation land required for 9 meter road because he has
utilized the open space, when his land was layout"?
8. The petitioner has placed on record the layout map.
This layout map does not indicate that 9 meter road was
merged in 24 meter and against it he got the benefits. The
layout map even does not show that the 9 meter wide road was
to be used only for the layout. On the contrary, the layout
shows that the internal width of roads are 12 meter and 9
meter and those are the roads opening to the 24 meter wide
road. Had it been the case that the petitioner applied for the
layout after the compensation is paid, "can the Corporation
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asked him to return the money used for 9 meter wide road"?
The obvious answer is "no".
9. The standard and development control and permission
regulations for Municipal Council and Nagar Panchayat
Maharashtra has been placed on record in which Rule 13.2.3.3
provides that whenever called upon by planning Authority to
do so, areas under roads shall be handed over to the Panning
Authority by way of deed after development of the same for
which nominal amount of Rs.1/- shall be paid by the planning
Authority. This is included in the Chapter having title
"Regulations for the land Sub Division and layout". The layout
map placed on record already indicates 9 meter and 12 meter
wide road. Those are to be handed over to the planning
authority. Such roads are open for public access. In view of
that matter, handing over such road to the planning authority
is a different issue. Handing over such land as well as the open
place to the local body is not a transfer. It is just vesting a right
with authority to maintain it for the public use. The 24 meter
road proposed to be led in development plan is not the high
way. Therefore, it does not require service road. On the
contrary, in such a situation, the layout road should be joined
to the main road for access.
8 WP.10445-18.odt
10. Learned counsel for Municipal Corporation Mr. Bagul
placed reliance on the case of Pandit Chet Ram Vashist (dead)
by legal heirs Vs. Municipal Corporation of Delhi, (1995) 1
Supreme Court Cases 47. In this case, the Hon'ble Supreme
Court has observed that the resolution passed by the
Corporation directing the appellant to transfer the space
reserved for tube wells, school and park in its favour free of
cost was depriving the owner of his property and vesting it in
the Corporation against law. Such condition amounts to
transfer of ownership and not merely transfer of right of
Management. The Corporation by virtue of the lands specified
as open space may get a right as a custodian of public interest
to manage it in the interest of the society in general. However,
in the case at hand, is not pertains to the open space. Here is
the question of acquiring the land for laying 24 meter wide
road is under consideration. The attempt to reduce it by 9
meters at the behest of the Municipal corporation was
unsuccessful. Therefore, this case would not support him. The
law has been crystallized in the above case that no such
property would be transferred to the Corporation free of cost.
11. He also relied on the case of Omprakash Gopalkrishna
Khandelwal and others Vs. The State of Maharashtra and
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others, Writ Petition No.7496 of 2018 decided 11.10.2019 and
Sanjay Vishnu Shende and another Vs. The State of
Maharashtra and others. In the case of Omprakash, the
petitioner were required to leave the land for 24 meter wide
development road in the layout plan. The petitioner was asking
for the compensation for the area under 24 meter development
plan road (peripheral road). In that case also, the 24 meter
wide D.P. road was shown passing through the land of the
petitioner. The petitioner had submitted layout. It was
observed that in the layout, the petitioner was required to
provide for 9 meters internal road, but the petitioner was
required to provide 24 meters D.P. road. As per the
development plan, it was incumbent upon the petitioner to
provide 24 meter wide road instead of 9 meter. In normal
case, the petitioner is required to provide only 9 meter wide
road as the layout road. Only because 24 meter wide road
proposed peripheral plan, road was shown to pass through
land of the petitioner, the petitioner was required to provide
for 24 meter wide road, at the time the layout was sanctioned.
The property of the petitioner was situated in village and not
within the limits of Municipal Corporation. Subsequently, it
was included in the jurisdiction in the Municipal limits. In that
case, based upon the facts the learned counsel for the
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petitioner had admitted that the petitioner would have to keep
9 meter wide internal layout. In view of that matter, it was
held that the petitioner would be entitled to compensation for
area affected in 24 meter wide D.P. road by deducting area of 9
meter road. It has also been observed that the respondent
local Government cannot deprive the petitioner of their
property without due process of law. The private land cannot
be taken away by statutory body or State without paying any
compensation. More particularly, when such land is required
to be used by public at large. The area was left in the
development plan road in 2007-2008 and that to when the
area was under Gram Panchayat. In this case, the regulations
of development control and promotion regulation for D class
were made not applicable. In that set of facts, the Court decline
to pay compensation to the petitioner as claimed. Delay and
laches was another aspect before that Court. Identical facts
were of the case of Sanjay Vishnu Shende.
12. Mr. Bagul also relied on the case of Shirdi Nagar
Panchayat Vs. Kishor Sharad Borawake and others. It was
altogether on different facts and issues. Therefore, it does not
require to discuss.
11 WP.10445-18.odt
13. Examining the facts of the matter and the layout, we are
of the opinion that the layout has been sanctioned to the
petitioner considering the width of the road led in the
development plan. The width of the road is one of the criteria
to determine and sanction the layout. Length of the road also
affects the area to be used for non-agricultural purpose. The
copy of layout placed on record as discussed above does not
indicate that any specific benefit has been granted to the
petitioner merging 9 meter road in 24 meter road required to
be left while granting the approval to the layout of the
petitioner. In the absence of any such cogent evidence and
material, it would be unjustifiable to refuse the compensation
to the petitioner on the bare words that for this 9 meter road
which is to be left and merged into 24 meters road, the
petitioner is dis-entitled to the compensation. The law as
discussed above, no matter of doubt is clear that property of
the private person must be taken only after the compensation
is paid. In view of the issue involved in the matter and the
material placed before the Court, we are of the opinion that
the petition deserves to be allowed. Hence, the following
order:
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ORDER
(i) Writ petition is allowed.
(ii) It is declared that the petitioner is entitled to the
compensation for the land earmarked for 24 meter
wide road passing through the field survey of the
petitioner.
(iii) We also declared that the affidavit waiving the
land at Rs.1/- is contrary to the law and facts.
Only on the basis of such undertaking which was
executed in peculiar circumstances would not
deprive the petitioner from the compensation to
which he is legally entitled to.
(iv) The respondent is directed to proceed for the
acquisition for the land in dispute at the earliest
and the compensation be paid to the petitioner
accordingly.
(v) Rule made absolute.
(vi) No order as to costs.
(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)
...
vmk/-
