High Court
Legal Reasoning
wp-9343.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9343 OF 2023Mrs. Sneha W/o Shirish Gadiya,Age-52 years, occu:Agri. & Business,R/o-Gut No.403, Village Golwadi,Taluka and District-Aurangabad. ...PETITIONER VERSUS 1) The State of Maharashtra, Through Department of Urban Development, Mantralaya, Mumbai-32,2) Principal Secretary, Department of Urban Development, Mantralaya, Mumbai-32,3) The Collector, Aurangabad,4) Special Land Acquisition Officer, (Special Unit), Aurangabad,5) City Industrial and Development Corporation Ltd., Through its Chief Administrator, Udyog Bhavan, Town Centre, New Aurangabad – 431003,6) Administrator, New Towns, City Industrial and Development Corporation Ltd., Waluj Mahanagar, Aurangabad,
Legal Reasoning
wp-9343.2327) The Additional Town Planning Officer, CIDCO, Waluj Mahanagar, Aurangabad. ...RESPONDENTS ... Mr. D.P. Palodkar Advocate for Petitioner. Mr. P.S. Patil, Additional G.P. for Respondent Nos.1 to 4. Mr. V.P. Deshmukh Advocate for Respondent Nos.5 to 7. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 23rd JANUARY, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent. 2.The petitioner is the owner and possessor of the landadmeasuring 0 Hectare 14 R out of Gut No.131 of villageValadgaon, Taluka and District-Aurangabad. Respondent No.5CIDCO, came to be appointed as Special Planning Authority ofWaluj notified area by the State Government. The draftdevelopment plan of Waluj notified area came to be published on16th April 1992. The State Government accorded sanction to thedevelopment plan under Section 31 of the Maharashtra Regional wp-9343.233Town Planning Act, 1966 (for short “the MRTP Act”) and it waspublished in the official gazette on 14th August 2001. It wasshown in the said development plan that the land belonging tothe petitioner would be affected by the “play ground”reservation. 3.It is the case of the petitioner that the planning authoritywas under obligation to acquire the properties of the privatepersons affected by the reservation within the period of tenyears from the date of enforcement of final development plan.However, respondent No.5 is not interested in acquiring the landnor even in a position to develop the said land as per itsreservation. Therefore, the petitioner was constrained to issuenotice under Section 127 of the MRTP Act on 8th March 2021,which was received by respondent No.6 on the same day. Replyhas been given by respondent No.6 on 8th July 2021 stating thatreservation is falling under the category of ‘OptionalDevelopment’ (reservation). In the said reply it has been furtherstated that as per the resolution passed of the Board of Directorsof the CIDCO on 24th April, 2017, a policy of giving compensationin the form of only Development Right Certificate (TDR) towards wp-9343.234acquisition of lands under the DP Reservation of ‘OptionalDevelopment (reservation)” has been approved. The petitionerreplied to the said communication of respondent No.6 on 10thAugust 2021 pointing out that the stand of the respondent iscontrary to the land acquisition policy and the notification of theGovernment dated 5th July 2016. It was pointed out that choiceof selecting mode of compensation is with the land owners asper the provisions of law and the planning authority cannot forcethe land owner to accept the compensation in the form of TDR /DRC. The period for taking action by respondent No.6 has lapseddue to its own inaction and therefore, the petitioner isconstrained to file the present Writ Petition. 4.One Mr. Ashutosh Vasant Uikey, Additional Chief Planner,CIDCO, has filed affidavit-in-reply on behalf of respondent Nos. 5to 7. It is contended that the Petition is not tenable in view ofthe fact that the petitioner filed Writ Petition No. 9343 2023 forlapsing of reservation of land which is notified for part of WalujCIDCO, Aurangabad. The petitioner had challenged the saidreservation and it was pointed out by the respondent that Walujproject is based on unique policy of public and private wp-9343.235participation. In the development plan, it is envisaged thatCIDCO will act as catalyst for the development by acquiring100% land in the Growth Center areas and develop the samewith all physical and social infrastructure. 25% land from eachland holding falling within the Phase-I will be acquired by payingland compensation and the said land will be used for 18 Mtrs.wide roads and above, mini stadium, general public utilities andcivil services along the roads. As the project was proposed to bedeveloped through public participation, it was envisaged thatsome of the reservations will be developed by the land ownersthemselves. The play ground is outside the Growth Centers andtherefore the land owners may develop the same or they maysurrender lands under these reservations to the CIDCO fordevelopment. It has been contended that CIDCO is likely to incurexorbitant cost for acquiring and developing infrastructure onsuch lands and the pace of development in all the Nagars outsideGrowth Centers is not viable if the burden of acquiring theselands under reservations of optional development would bethrough monetary compensation and therefore, the resolutioncame to be passed by the Board of Directors of CIDCO on 27thApril 2017. The proposal was, therefore, forwarded to the State wp-9343.236Government for approval. It is contended that respondent CIDCOwould give compensation in the form of D.R.C. i.e. DevelopmentRight Certificate towards acquisition of lands under the D.P.reservations of ‘optional development’ and therefore,compensation for acquired land cannot be given as per the Rightto Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013. As the interest of thepublic is involved, it should not be treated that the reservationfor the play ground has lapsed. The petitioner is required to bedirected to take the benefit of D.R.C. 5.Heard learned Advocate Mr. Palodkar for the petitioner,learned Additional Government Pleader Mr. Patil for respondentNos.1 to 4 and learned Advocate Mr. Deshmukh for respondentNos.5 to 7.6.In order to cut short, it can be said that all the learnedAdvocates have argued in support of their respectivecontentions.7.As aforesaid, most of the facts are admitted. Respondent wp-9343.237No.5 is the appropriate authority. The plans were sanctioned andthe land belonging to the petitioner is shown to be affected withthe reservation of ‘play ground’. Certainly the development ofthe land was under the MRTP Act and therefore the provisions ofthe said Act would govern in the matter. Certainly, the owner ofthe land should have the choice either to accept compensation orthe accept the Development Right Certificate if offered by thedeveloping authority. But herein this case it appears thatrespondent Nos.5 to 7 want to force the petitioner to accept theDevelopment Right Certificate, to which the petitioner is notready. Respondent Nos. 4 to 7 cannot go against the provisionsof law. We follow the decision of the Full Bench of this Court inWrit Petition No.2231 of 2019 (Shree Vinayak Builders and Developersvs. State of Maharashtra and others). The ratio laid down in GirnarTraders (2) vs. State of Maharashtra, 2007 (7) SCC 53, Girnar Traders(3) vs. State of Maharashtra, 2011(3) SCC 1, Shrirampur MunicipalCouncil vs. Satyabhamabai, 2013(5) SCC 627, would be applicablein this matter. In spite of giving notice under Section 127 of theMRTP Act, respondent No.5 has not taken further appropriatesteps. Rather with a belated reply it appears that respondentNo.5 insisted the petitioner to accept the Development Right
Decision
wp-9343.238Certificate. Further in reply to the communication made byrespondent No.5 when petitioner made it known to respondentNo.5 that she is not willing to accept the Development RightCertificate, yet the further steps have not been taken. It willhave to be held that the reservation on the petitioner’s land haslapsed. In consequence the petitioner’s land is free fromreservation and is available for the development by her. 8.The Writ Petition therefore, deserves to be allowed. Hencethe following order:- O R D E R(I)The Writ Petition stands allowed.(II)It is declared that the reservation of the ‘play ground’ onthe land of the petitioner i.e. admeasuring approximately 0Hectare 14 R land out of Gut No.131 of village Valadgaon, Talukaand District-Aurangabad has lapsed and the land is free fromreservation and available for development to the petitioner asper the use permissible to the adjacent land. wp-9343.239(III)Respondent Nos.1 and 2 are directed to issue the order as prescribed under Section 127(2) of the MRTP Act, 1966regarding lapsing of reservation in respect of the petitioner’sland, within a period of FOUR WEEKS from today.(IV)Respondents are directed to issue development permissionin favour of the petitioner in respect of her land without insistingfor publication of order under Section 127(2) of the MRTP Act,1966.(V)Rule is made absolute in above terms.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JAN24