Sau. Manisha Yogesh Chine v. Industrial City & Development Corporation of Maharashtra Ltd., Through it's Administrator, Udyog Bhawan, New Aurangabad

(CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. Date : 27th July, 2011. ORAL JUDGMENT (PER SMT. MHATRE, J.)

1. The petitioner has sought a writ of mandamus directing the CIDCO to grant her a No Objection Certificate to enable her to seek permission from the Municipal Corporation to construct a building on plot no. 268, Neighbourhood NS-4, CIDCO, New Aurangabad admeasuring 128.91 square meters. Another prayer, which is sought in the petition, is a direction to the CIDCO to regularise the aforesaid plot in accordance with its policy. 2 wp1895.09

2. The brief facts giving rise to the present Petition are as follows : The petitioner was allotted the aforesaid plot in 1998 by the CIDCO. Considering the requirement of additional space for her family, the petitioner applied for allotment of another plot, jointly with Shri Balaji Manikrao Patil and Shri Subhash Madhukarrao Lalsare. Accordingly, they were allotted plot no.9, Sector N-7 L-3, admeasuring 700 square meters. The CIDCO leased this plot to the petitioner and other applicants by entering into an agreement of lease which was executed on 13th December, 1999, the lease premium being ` 10,60,727/-. After the execution of the lease deed, the petitioner and her co lessees could not agree upon the area, direction and share to which each person was entitled, in the aforesaid plot. Accordingly, the petitioner and her co lessees transferred the plot to third parties, at the same cost, by a Tripartite Agreement, to which the CIDCO was a party. This transfer was effected on 31st January, 2000 and a transfer order was issued on 21st February 2000. Thereafter the transferees have developed the plot No.9, Sector N-7 L-3 and have also obtained an occupancy certificate on 21st February 2002 .

3. In view of the fact that the petitioner had been allotted the plot no. 268, NS-4 in 1998, an agreement of lease was executed on 16th October, 2000 in favour of the petitioner by CIDCO i.e. the respondent herein. The petitioner sought permission from CIDCO to develop the property on payment of the requisite charges. This application was 3 wp1895.09 submitted by the petitioner on 16th April, 2001. However, that application was turned down by the CIDCO on the ground that this Court had issued a stay order, directing that the allotment of plots by the CIDCO could not be regularised and no building permission could be granted by it. Thereafter an order was passed by this Court on 28th March, 2003 stipulating various conditions for the development of the plots allotted in the CIDCO area. On 4th February 2004, the petitioner applied once again to the CIDCO for permission. However, on 11th March, 2004 that permission was also refused on the ground that the petitioner held another plot in her name in the CIDCO area. Although, this letter was not served on the petitioner, she became aware of it when she visited the office of the CIDCO. Immediately thereafter on 20th May, 2004, the petitioner informed the CIDCO that she had no other property in the CIDCO area in her name. She also offered to pay the amount required for regularisation of the plot. Since there was no response from CIDCO, the petitioner submitted several applications thereafter for the development of the plot. However, the CIDCO by its letter dated 16th March, 2009 informed the petitioner that in view of the changed policy her plot could be regularised only on obtaining appropriate orders from the Court. Hence, the present Petition.

4. By the decision of this Court in Writ Petition No.2338 of 1999 allotments made by the CIDCO in respect of lands where the planning proposal had not been sanctioned had been set aside. This decision was confirmed by the Supreme Court with a few modifications. 4 wp1895.09 Thereafter orders were passed on 28th March 2003 and 19th April 2003 in Civil Application No.7360 of 2002 wherein certain conditions were imposed for regularisation of the allotments. One of the conditions was a person could not retain more than one plot if he was a multiple plot holder.

5. We have considered the contentions of the CIDCO that the petitioner has an extra plot, and therefore, is not entitled for the regularisation of plot no. 268. We have found that this plot, which the petitioner held jointly with two others, was transferred by a Tripartite Agreement dated 31st January, 2000 to a third party. The CIDCO was a party to this agreement. Therefore, in 2000 itself it had agreed to the transfer of plot no.9, Sector N-7 to a third party for the consideration of ` 10,60,727/-, which was the amount that the petitioner had paid along with her co lessees to the CIDCO. Thus, when the order of this Court was passed in several matters dealing with the allotment of plots in the CIDCO area and the conditions for such allotment were formulated by this Court, the petitioner had already transferred the plot no.9 to third parties. At the time when the orders were passed on 28th March, 2003 and on 19th April, 2003, the petitioner was an allottee of only one plot. Therefore, the reason submitted by CIDCO for not issuing a No Objection Certificate, is untenable. The direction issued by this Court in the aforesaid orders were to ensure that private individuals do not indulge in profiteering by acquiring more than one plot and selling them at a premium. In the present case, the CIDCO 5 wp1895.09 was aware that the petitioner and her co lessees of plot no.9, Sector N-7 had transferred the plot to third parties for the same price as they had paid CIDCO. Therefore, there was no question of any profiteering on the part of the petitioner.

5. The learned Counsel for the petitioner has brought to our notice several orders passed by this court where directions have been issued to the CIDCO to regularise the allotted plots in accordance with its policies, rules and regulations, as also the conditions stipulated by this Court in its earlier orders passed in the aforesaid writ petition and civil application. It appears that the CIDCO has not been regularising the plots and expects all the plot holders to approach the High Court before it regularises the same. We are unable to appreciate this attitude of CIDCO. If the plot holders are entitled to regularisation of the plots in accordance with its Rules, Regulations and policy, we see no reason why the CIDCO should wait for directions from this Court before it regularises such plots.

5. In the circumstances, the petitioner must be considered as a single plot holder. The regularisation of the plot no. 268, Neighbourhood NS-4, CIDCO, New Aurangabad will be considered by CIDCO on the Petitioner paying the additional lease premium to CIDCO within two weeks from today. On the payment being received by CIDCO, it shall issue a no objection certificate to the petitioner for development of the plot in accordance with its policy, rules and 6 wp1895.09 regulations within four weeks thereafter.

6. Rule made absolute, accordingly. No order as to costs. (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) ga s/wp1895.09