Bombay High Court
Shri Prashant Balwantrao Tekade vs The State Of Maharashtra on 19 March, 2012
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos.131, 1766 & 1767 OF 2011.
..........
WRIT PETITION No. 131 OF 2011.
Shri Manish s/o Dinesh Soni,
Aged about 42 years, Occ - Service,
resident of Plot no.12, Shakuntala
Apartment, Prashant Nagar, Nagpur
through constituted attorney
Shri Prashant Balwantrao Tekade,
Aged about 39 years, Occ - Business,
resident of Flat No.302, Nirmal Apartment,
Chitaley Marg, Dhantoli, Nagpur. ....PETITIONER.
VERSUS
1.The State of Maharashtra,
through Secretary, the Ministry of
Urban Development Department,
Mantralaya, Mumbai - 32.
2.The Nagpur Improvement Trust,
A Statutory body created under
the provisions of the Nagpur Improvement
Trust Act, 1936 acting through its
Chief Executive Officer, having its
Office at Near Liberty Cinema,
Station Road, Sadar, Nagpur.
3.The Chairman,
Nagpur Improvement Trust,
having its Office at Near Liberty Cinema,
Station Road, Sadar, Nagpur.
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4.The Building Engineer (West),
Nagpur Improvement Trust,
having its Office at N.I.T. Complex,
North Ambazari Road, , Nagpur. ....RESPONDENTS.
WITH
WRIT PETITION No. 1766 OF 2011.
Shri Vivek s/o Vinayakrao Vaidya,
Aged about 37 years, Occ - Business,
resident of Flat No.401, Nirmal Apartment,
Chitaley Marg, Dhantoli, Nagpur. ....PETITIONER.
VERSUS
1.The State of Maharashtra,
through the Secretary, Ministry of
Urban Development Department,
Mantralaya, Mumbai - 32.
2.The Nagpur Improvement Trust,
A Statutory body created under the
provisions of the Nagpur Improvement
Trust Act, 1936 acting through its
Chief Executive Officer, having its Office
at Near Liberty Cinema, Station
Road, Sadar, Nagpur.
3.The Chairman,
Nagpur Improvement Trust,
having its Office at Near Liberty Cinema,
Station Road, Sadar, Nagpur.
4.The Building Engineer (West),
Nagpur Improvement Trust,
having its Office at N.I.T. Complex,
North Ambazari Road, Nagpur. ....RESPONDENTS.
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WITH
WRIT PETITION No. 1767 OF 2011.
Mrs. Prabha w/o Gulabrao Katyarmal,
Aged about 55 years, Occ - Private,
resident of C-31, 5th Floor, Navarebad
Apartments, Kurla Purva, Mumbai,
through constituted attorney
Shri Vivek s/o Vinayakrao Vaidya,
Aged about 37 years, Occ - Business,
resident of Flat No.401, Nirmal Apartment,
Chitaley Marg, Dhantoli, Nagpur ....PETITIONER.
VERSUS
1.The State of Maharashtra,
through the Secretary,
Ministry of Urban Development
Department, Mantralaya, Mumbai - 32.
2.The Nagpur Improvement Trust,
A Statutory body created under
the provisions of the Nagpur Improvement
Trust Act, 1936 acting through its
Chief Executive Officer, having its
Office at Near Liberty Cinema, Station
Road, Sadar, Nagpur.
3.The Chairman,
Nagpur Improvement Trust,
having its Office at Near Liberty Cinema,
Station Road, Sadar, Nagpur.
4.The Building Engineer (West),
Nagpur Improvement Trust,
having its Office at N.I.T. Complex,
North Ambazari Road, Nagpur. ....RESPONDENTS.
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Mr. Sunil Manohar, Senior Advocate with
Shri Avinash Gharote, Advocate for Petitioners.
Mr. N.W. Sambre, Government Pleader for Respondent No.1.
Shri S.K. Mishra, Advocate for Respondent Nos. 2 to 4.
-----------------------
CORAM : B.P. DHARMADHIKARI
& A.B. CHAUDHARI, JJ.
Date of Pronouncement.
Date of reserving the Judgment. -
-
29.02.2012.
19.03.2012.
JUDGEMENT. (Per B.P. Dharmadhikari, J) Looking to the nature of challenge involved and with consent of the parties, efforts were made to dispose of the matter finally at the stage of admission. Accordingly as requested by the respective Counsel, we have heard the matter lastly on 29.02.2012. It is not in dispute that the nature of challenge and prayers in all the three Writ Petitions are identical, hence we make Rule, returnable forthwith.
2. All parties have tried Writ Petition No. 131/2011 as lead petition. Accordingly prayer clause therein is reproduced below for convenience.
::: Downloaded on - 09/06/2013 18:18:30 :::wp131.11 5 "(a) Hold that there is no prohibition, bar or restriction either in The Maharashtra Gunthewari Developments (Regularization, Up-
gradation and Control), Act, 2001 or in The Development Control Regulations 2000, for loading/use of T.D.R. on plots regularized under the Maharashtra Gunthewari Developments (Regularization, Up-gradation and Control), Act, 2001.
b) To hold that the refusal on the part of the respondents to permit loading of T.D.R. on a plot regularized under the provisions of The Maharashtra Gunthewari Developments (Regularization, Up-gradation and Control), Act, 2001 is arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
c) By way of a Writ of mandamus, direct the respondents 2 to 4, to sanction the revised plan as submitted to them on 23.10.2009 (rejection of which was communicated to the petitioner on 07.08.2010 - vide Annexure-5), upon plot no.172, by permitting the loading/use of T.D.R. as per Regulation 29 of Development Control Regulations
- 2000 as applicable to the City of Nagpur.
::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 6 d) during the pendency of the petition,
grant stay to the proposed action of demolition of the building as constructed on plot no.172.
e) Grant ad interim ex-parte stay in terms
of prayer clause [d].
f) Grant any other relief which this
Hon'ble Court thinks fit and proper in the facts
and circumstances of the matter. "
3. In Writ Petition No. 1766/2011 the only difference is in prayer clause (c). Date 23.10.2009 and 07.08.2010 need to be read as 13.08.2010 and 27.09.2010 respectively with plot nos. as 24 and 25. In prayer Clause (d) also for plot no.172, plot nos. 24 and 25 need to be read. In Writ Petition No. 1767/2011 in prayer clause (c), the same dates as in prayer clause (c) of writ Petition No. 1766/2011 appear.
Only difference is in this petition in prayer clauses (c) and (d), plot nos. to be read are plot nos. 55 and 56.
4. The controversy stated briefly is, Whether the development rights purchased by the petitioner/builders can be utilized by them for supporting construction in excess of FSI on plot no.172 [Writ Petition No.131/2011], plot nos. 24 and 25 [Writ Petition No.1766/2011] and ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 7 Plot nos. 55 and 56 [Writ Petition No.1767/2011]. These plots are regularized under the provisions of Maharashtra Gunthewari Development (Regularization, Up-gradation and Control) Act, 2001 (hereinafter referred to as "the 2001 Act" for short). Respondent no.2 Planning Authority have not considered the revised plans submitted by the respective petitioners after loading said T.D.R. (transferable developments rights) on those plots for seeking sanction to existing constructions.
5. We have heard Shri Sunil Manohar, learned Senior Advocate with Shri Avinash Gharote, learned Counsel for the petitioners, Shri N.W. Sambre, learned Government Pleader for respondent no.1 State of Maharashtra and Shri S.K. Mishra, learned Counsel for respondent no.2 Planning Authority and respondent nos. 3 and 4 who are its office bearers/officers.
6. Parties have found it convenient to refer to the facts in Writ Petition No.131/2011 and we briefly refer to those facts. The said petitioner is owner of plot no.172, City Survey No. 521, ad-measuring 207 sq. mtrs. in layout of Nagar Vikas Cooperative Housing Society Layout, Nagpur. This plot is in layout on Khasara no.54/2, P.H. No. 54, Mouza Somalwada, Nagpur and petitioner purchased said plot vide ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 8 Sale deed dated 30.01.2006 which came to be registered on 01.02.2006. Admittedly that layout was in un-authorized layout and has been regularized under 2001 Act on 04.03.2006. The petitioner claims that he was not in a position to make construction upon that plot and, therefore, he entered into an agreement of development with one Shri Prashant Tekade on 10.03.2008 and also executed a power of attorney in his favour, authorizing him to take all necessary steps for development and sale of that plot, along with various units to be constructed upon it. The said power of attorney holder prepared building plan for construction of Multi Storied Building and that plan was looked into by planning authority on touchstone of provisions of the Development Control Regulations, 2000 (DCR_2000) applicable to the City of Nagpur. According to the petitioners, their plot falls in Zone-C and permissible Floor Space Index (FSI) is "1". Building engineer sanctioned that plan on 30.05.2008. The proposed construction is also subject to provisions of the Maharashtra Apartment Ownership Act and a Deed of Declaration dated 31.08.2008 has accordingly been registered on 25.02.2009.
7. During construction, the power of attorney of petitioner found size of apartments very small and hence, built additional room on 2nd, 3rd and 4th floor. Because of this additional room, construction ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 9 exceeded by 150 sq. mtrs. and FSI exceeded by 72.463%. Hence, due to the provisions of the Development Control Rules, 2000 particularly Regulation No.29 about Transferable Development Right (T.D.R.), petitioner purchased T.D.R. to the extent of 150 sq. mtrs., from one M/s. Shree Ganesh Builders, as per Development Right Certificate (Slum) for use in Zone-C. Petitioner then prepared a revised development plan by loading this T.D.R. purchased by him and submitted the same to the planning authority for scrutiny and sanction.
On 07.08.2010, respondent nos. 2 to 4 rejected the said revised plan on two grounds namely (1) the existing construction on ground floor does not tally with the construction of ground floor shown in sanctioned plan and (2) there is no decision by the planing authority i.e. Chairman regarding permissibility of use of T.D.R. on Gunthewari regularized plot. After this rejection, on 12.08.2010 officials of respondent nos. 2 to 4 visited plot no.172 with intention to demolish the construction made thereon, but stopped because of request made by the petitioner through developer on giving an undertaking to remove the excess construction and to deposit Rs. 1 lakh, as fine therefor. Fine has been paid accordingly on 12.08.2010. It is in this background the rejection of revised building plan has been questioned as contrary to provisions contained in Regulation 29 of the Development Control Rules, 2000.
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8. Shri Manohar, learned Senior Counsel has contended that after regularization of plot no.172 under 2001 Act and sanction of building plan under the Development Control Rules, 2000, the planning authority has acted erroneously and without jurisdiction in communicating to the petitioner that it has not decided whether the transferable development rights can be loaded on gunthewari plot or not. He contends that after regularization, the plot is governed by the provisions of Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the M.R.P.T. Act, 1966" for short) and Development Control Rules, 2000. There is no bar either in the M.R.T.P. Act, 1966 Act or in 2000 Rules to use of such T.D.R. on such regularized plot. He has contended that even 2001 enactment does not contain any such bar. He has relied upon the provisions of Regulation 29 dealing with T.D.R., as contained in the D.C.R. 2000 to argue that the petitioner has purchased T.D.R. in accordance with law and Regulation 29 permits its use on plot of petitioner which is located in Zone-C. He points out that as loading of T.D.R. is already permitted, there is no question of any decision by Chairman of N.I.T. And the revised building plan as submitted warrants sanction.
9. He has invited our attention to various provisions as contained in 2001 Act to show how that Act does not prohibit use of ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 11 T.D.R. on regularized gunthewari plot. Heavy reliance is placed upon Section 5 to point out consequence of regularization. Assertion is, the provisions of Development plan or Regional Development Plan as the case may be, apply to such regularized plot. Regulation no.29 is also heavily relied upon to point out the situations in which use of T.D.R. is not permitted or prohibited. Learned Counsel states that here provisions of Regulation No.29.14 enables plot no.172 (receiving plot) to exceed FSI by 0.8 (80%) and hence, excess construction which is only about 72% can be regularized/compounded, if such T.D.R. is allowed to be loaded as per law. The reason of absence of decision by the planning authority on such user and loading is argued to be arbitrary and unnecessary. Learned Senior Counsel states that such loading is allowed by Regulation no.29 and Section 42 of the M.R.T.P. Act obliges the planning authority to implement the provision of final development plan which has come into force in accordance with Section 31 (6) thereof. He argues that right to hold property conferred by Article 300A of the Constitution of India, enables respective petitioner to develop it in accordance with law and that right, therefore, cannot be held to be abridged by such act of the planning authority and its refusal to perform its duties under Section 42 read with Section 31[6] of the M.R.T.P. Act.
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10. He has invited our attention to reply affidavit filed by Nagpur Improvement Trust, wherein it is contended that the Nagpur Improvement Trust wrote a letter on 13.09.2010 to the State Government and sought clarification on this issue. Reply received in response thereto and filed by the State Government is also read out with contention that the decision recorded therein overlooks the provisions of the M.R.T.P. Act and also Gunthewari Act. The stand of respondent no.1 in reply-affidavit filed on 21.03.2011 and reply affidavit filed on 12.08.2011 is inconsistent. Paragraph nos. 2 to 6 of later affidavit are read out for said purpose and to demonstrate it.
Learned Government Pleader has made available the communication dated 20.07.2011 referred to in paragraph no.2 of this affidavit. Shri Manohar, learned Senior Counsel has relied upon this communication to show that after regularization under Gunthewari Act, D.C.R. 2000 becomes applicable to such regularized plots and there is no other set of rules. He argues that after regularization under Gunthewari Act, the fact of regularization looses is relevance and plot regularized needs to be treated as any other plot to which M.R.T.P. Act or Development Control Rules framed under it, are applicable. The said regularization under Gunthewari Act does not put any embargo upon the rights of the holder of that plot and rights made available under M.R.T.P. Act,1966 can not be denied to Petitioner.
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11. It is contended that if right available to the petitioner under Article 300A of the Constitution of India is to be denied, the same can be done only by statute and neither Regulation no.29 nor alleged communication dated 18.03.2011 can have that effect. Adv. Manohar is taking support from the judgments delivered by the Hon'ble Supreme Court reported at AIR 2005 SC 3401 (State of Rajasthan .vrs. Basant Nahata)(paragraph Nos. 59 to 61), AIR 1959 SC 249 (Sri Dwarka Nath Tewari .vrs. State of Bihar)(paragraph No. 9), AIR 2004 Bom. 64 (Gango Coop. Housing Society .vrs. Municipal Corporation of Greater Bombay)(paragraph Nos. 3,4,9,10,12, 18 to 21), for said purpose.
12. Our attention has also been invited to approach of another Planning Authority namely, Pune Municipal Corporation in the matter by pointing out that it has permitted loading of such T.D.R. Support is being taken from Ground 'F' and document annexed as Annexure-7 with the Writ Petition which are building permits and plans sanctioned by Pune Municipal Corporation for said purpose.
13. Learned Senior Counsel concluded his arguments by contending that thus the reasons for rejection of sanction to revise building plan as communicated to the petitioner shows total non ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 14 application of mind and constitute refusal to exercise jurisdiction due to its wrong notions. He makes it clear that the planning authority has to examine the matter on merits and thereafter find out whether in facts of each case such T.D.R. can be loaded on alleged receivable plots.
Without undertaking that inquiry, a blanket refusal by the Nagpur Improvement Trust is urged to be high handed.
14. Shri Sambre, learned Government Pleader appearing on behalf of the State Government has contended that all these petitions are by builders who want to exploit the area already developed illegally for their commercial motives. The guidance given by the State Government to the Nagpur Improvement Trust is stated to be in consonance with the purpose of 2001 Act, as it prohibits further deterioration of the area regularized under that Act. The statement of objects and reasons of 2001 Act is read out and in that background Sections 3,4 and 5 are explained. Learned Government Pleader submits that the object of 2001 Act is to protect the poor and needy persons and to solve their housing problems. No commercial motive can be allowed to step in and hence, Section 5 thereof also specifically prescribes consequences of such regularization. Section 21, thereof is also pressed into service to show that the final control has been retained by the State Government only with that object. The reply sent to ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 15 Nagpur Improvement Trust on 18.03.2011 is thus in accordance with the spirit of law. He asserts that the loading of T.D.R. on plots regularized under the Gunthewari Act is not permissible in Pune or any where in the State of Maharashtra and if in isolated cases, any planning authority has permitted it, necessary action against such structure will be taken by the State Government. The reasons communicated by the State Government for refusal of permission are in accordance with and further the purpose of Gunthewari Act which is complete code in itself.
M.R.T.P. Act 1966 or D.C.R.,2000 are not applicable to such Gunthewari developments. He therefore, prays for dismissal of the writ petitions.
15. Shri S.K. Mishra, learned Counsel appearing for respondents-
Planning authority and its officers adopts the argument of learned Government Pleader. He points out that in residential areas in Nagpur City regulated by MRTP Act, the permissible F.S.I. Is only one.
Attention is invited to various provisions of M.R.T.P. Act to urge that it is a complete code for development and for preparation of layouts.
Gunthewari Act, 2001 has been enacted in exceptional circumstances and to meet the peculiar situation. That enactment, therefore, cannot be used to avoid the substantive scheme and provisions of M.R.T.P. Act.
Regulation no.29 dealing with T.D.R. itself envisages other restrictions ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 16 in the matter of its use and therefore, blanket prayers as made in petitions cannot be granted. The benefit of Gunthewari regularization can be sought for not only by the owners, but also by person in legal occupation. The person seeking benefit is not entitled to any compensation for surrendering the land needed for public roads or other similar purposes. Thus, such person cannot earn T.D.R. in relation to land surrendered in gunthewari regularization. A person who is not owner of gunthewari development cannot be expected to use the T.D.R. purchased by him elsewhere on gunthewari plot. According to him these features clearly show that the concept of T.D.R. which is applicable to the legal or normal development in terms of the M.R.T.P. Act, 1966 stands excluded, as it is incompatible with the scheme envisaged under the Gunthewari Act, 2001. He therefore, prays for dismissal of the petitions.
16. Shri Manohar, learned Senior Counsel, in reply arguments contends that the entire concept of T.D.R. is evolved for builders and hence, merely because petitioners are builders, they cannot be denied T.D.R. He relies upon Section 5 of the Gunthewari Act to urge that entitlement of respective receivable plots in these petitions to loading of such T.D.R. needs to be examined on merit. If after such examination, respondent no.2 finds that permission cannot be granted, the ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 17 consequence would be different, however, here that scrutiny itself is denied under erroneous belief, which is nothing but refusal to exercise jurisdiction.
17. After hearing respective Counsel, we find that the scope and purpose of the Gunthewari Act needs determination. It is not in dispute that the transfer of development rights [T.D.R.] is regulated by Regulation no.29 of the Development Control Regulations, 2000 for Nagpur City. Thus the development control regulations are under Maharashtra Regional and Town Planning Act, 1966. It is therefore necessary to refer to said MRTP Act which is first enactment and then to find out the scheme of subsequent Gunthewari Act, 2001.
18. In Atmaram Pinjomal Vazirani vs. Nagpur Municipal Corporation and Others reported at 2011 (1) All. M.R. 740, Division Bench of this Court, to which one of us(J. B.P. Dharmadhikari) is party, has recently noted the scheme of MRTP Act, 1966 and the manner in which the legislature has achieved the desired goal. This Act No. XXXVII of 1966 came into force on 11th January 1967 and it repealed Bombay Town Planning Act,1954 and some provisions in Maharashtra Zilla Parishads and Panchayat Samitis Act,1961 vide its last Section i.e., Section 165. It consists of IX Chapters. After dealing with ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 18 extent,commencement etc. in Section 1 and definitions in Section 2 in its Chapter I, it deals with establishment of a region, constitution of a regional planning board and preparation of regional plans in Chapter II.
Chapter III deals with preparation, submission and sanction to development plan and procedure to be followed for said purpose.
Procedure for preparation of interim development plans, plans for areas of comprehensive development is also prescribed. If there exists any regional plan, the development plan under this chapter has to be in accordance with it. Section 39 requires planning authority to vary town planning schemes to bring it in conformity with the development plan as per Section 92. Section 42 casts obligation upon planning authorities to implement such plan or plans. Chapter IV then deals with control of development and use of lands included in development plan vide its Sections 43 to 51. Sections 52 to 58 therein deal with unauthorized development. Chapter V then prescribes for preparation of town planning scheme.
19. Chapter V of MRTP Act deals with town planning schemes. Its part (a) deals with making of town planning scheme which as per Section 59 has to be to implement proposals in final development plan.
It may provide for any matter specified in Section 22 and for laying out or relaying out of any land either vacant or then built upon. Under ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 19 Section 60 it has to prepare such scheme for any area within its jurisdiction and publish it in official gazette together with copy of plan.
Section 61 requires it to publish draft scheme for area so declared within stipulated time and it lapses, if it is not so published within 18 months. Section 62 enables it to include additional areas also in such daft scheme subject to fulfillment of procedural formalities. Section 63 enables State Government to direct planning authority to make such scheme and on failure to comply, State Government can appoint an officer to make and submit such scheme. Section 64 lays down the contents of draft scheme. It may provide for reservation, acquisition or allotment of necessary land, for reconstitution of plots by altering its boundaries, for laying out or relaying out any land either vacant or built upon for comprehensive development, and an estimate of total costs of scheme with costs to be born by planning authority, Section 65 states that in draft scheme, size and shape of reconstituted plot will be determined to render it suitable for building purpose. If it is already built upon, to see that structure as far as possible does not violate stipulation about open spaces in the draft scheme. For said object, plot boundaries can be altered, adjoining land can be either added to it or vice-versa. With consent of owners, a joint ownership can also be proposed without delimitation, allotment of final plot to a dispossessed person and for transfer of ownership form one person to another.
::: Downloaded on - 09/06/2013 18:18:30 :::wp131.11 20 Section 66 provides for payment of compensation to owner for discontinuance of user after final scheme comes into force. Section 67 envisages consideration of objections by aggrieved person to such draft scheme and modifications therein, if found essential. Section 67 then contemplates submission of such draft with objections and modifications, if any within 6 months of publication of draft scheme to State. State Government has to sanction it within 6 months or extended time by notification in official gazette with or without modifications and subject to conditions as may be found fit. It may also refuse to sanction it. Section 69 prohibits a person from undertaking any change or development once declaration of an intention to make scheme is published without obtaining requisite permission as stipulated therein.
Section 71 contains a summary inquiry for resolving issues like disputed ownership but it is subject to adjudication in civil suit.
20. Part (b) of said Chapter V makes provisions for appointment an Arbitrator and a Tribunal of appeal. An arbitrator can define or demarcate or decide area allotted to any public purpose or of final plots; decide person/s to whom final plot can be allotted, estimate its value or find difference between value of original plot and final plot, decide compensation payable for loss of plot or area of original plot.
Section 73 makes certain decisions of such Arbitrator final. If no appeal ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 21 is filed, Section 82 makes those decision of arbitrator also final. Section 74 enables party aggrieved by his decisions to file appeal in certain matters. Section 75 lays down constitution of appellate tribunal. Further provisions till Section 82 lay down procedural details in regard to appellate Tribunal. Section 80 states that such Tribunal of Appeal is not a Court. Section 83 enables planning authority to take possession in advance for forthwith undertaking development work by applying to State Government through arbitrator. If State Government is satisfied it may authorize arbitrator by notification in official gazette to take possession. Section 84 obliges Commissioner of Police or District Magistrate to secure delivery of possession. S.85 confers upon him right to receive 4% interest from date of loss of possession till compensation is paid to him. Section 86 contemplates sanction to final scheme by State Government within stipulated period after its receipt under Section 82 from arbitrator by notification in official gazette. Section 87 shows situation in which the scheme can be withdrawn. Section 88 prescribes vesting of all lands required for scheme to vest and handing over its possession to planning authority on such coming into force of final scheme. Part (c) of this Chapter V then vide Sections 89 and 90 deals with enforcement of the Schemes, while part (d) - Sections 91 to 93 with variation in said scheme. Section 94 and 95 in Part (e) lays down procedure before the Arbitrator or Tribunal, Part (f) and Section ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 22 96 therein, for joint development plans or joint town planning schemes, Part (g) - Sections 97 to 101 for Finance of Schemes, Part (h) in its Sections 102 to 107 for compensation, Part (I), Sections 108 to 112 provide for miscellaneous matters. Chapter VI of MRTP Act with title new towns deals with designation of cites as new towns, for declaration or formation of new town development authority, objects of development authority, acquisition of land for it by agreement or under Land Acquisition Act, 1894 by State Government and other similar related matters. Chapter VI-A deals with levy, assessment and recovery of development charges. Its Section 127 also provides for lapsing of reservation if after notice of landowner for acquisition, no steps for acquisition are taken. Chapter VII then deals with land acquisition.
Section 129 therein provides for taking of possession in case of urgency.
Chapter VIII then takes care of Finance, Accounts and Audit. Chapter IX incorporates supplemental and miscellaneous provisions.
21. Purpose behind enacting MRTP Act can be gathered through Constitution Bench of Hon'ble Apex Court in AIR 1986 S.C. 468 = 1986 (1) SCC 581 Prakash Amichand Shah v. State of Gujarat which considers Bombay Town Planning Act (27 of 1955). As laid down therein, the principal objects of any town planning legislation generally are to provide for planning, the development and control of the use of ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 23 land and to confer on authorities such as Municipalities, Municipal Corporations, Panchayats etc. powers in respect of the acquisition and development of land for planning and other purposes. Such laws generally provide for the preparation of schemes that might be made in respect of the land with the general object of controlling its development, securing proper sanitary conditions, amenities and conveniences such as public parks, playgrounds, hospital areas etc., preserving existing buildings or other objects of architectural, historic or artistic interest and places of natural interest or beauty and generally of protecting existing amenities. By requiring a local authority to prepare a development plan, such Acts intend that the Town Planning Schemes should from part of a single and cohesive plan for development of the entire area over which the local authority has jurisdiction. The local authority is required to submit the development plan for the sanction of the State Government. This judgment and other precedents therefore show the stage by stage progress of region into scientifically designed and coordinated, mutually dependent but well organized areas to form cities and metropolis for better life and support to community. A town planning scheme for any area within jurisdiction of a planning authority is the smallest unit of consideration while next larger unit is a town itself. Said scheme has to be in consonance with the final development plan for city which in turn has to conform with the regional plan. It is ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 24 therefore made clear by Hon'ble Apex Court that town planning is very systematic activity designed scientifically in the interest of consolidated development to suit needs of the society. The legislation expects region to grow in pre-designed manner and the general society then develops around it which in turn results in putting optimum pressure on natural resources and sustained ecological balance. In this connection, S.156(b) of MRTP Act also deserves special mention, however, we prefer to look into it little later.
22. Perusal of 2001 Act shows that it has come into force on 30.04.2001 and all gunthewari developments existing as on 01.01.2001 can be considered for regularization under that Act. The State Legislature noticed a growing tendency to form plots un- authorizedly by sub-dividing private lands and transfer them to needy persons for construction of dwelling units. Since these sub-divisions were found to be in "Guntha", the developments have been mentioned as Gunthewari Developments. The State Legislature has maintained that such gunthewari developments are unlawful and has recognized need to curb it. It then found that it was neither practicable, nor desirable to demolish on a mass scale, the old and long existing constructions made on such plots. Failure of formal housing market to meet the demands of economically weaker sections of the society for ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 25 shelter in terms of both quantity and price is, found to be root cause of such gunthewari developments. It is found to be a form of informal housing, warranting a positive out look. Though described to be flawed and imperfect, several States in India are found to have accepted need to adopt such view and also need of curbing such unauthorized developments on one hand and for regularizing and upgrading the existing old gunthewari developments. The Act of 2001 has been enacted with this object in view.
23. Its Section 2[1] defines Gunthewari Developments as plots formed by un-authorizedly sub-dividing privately owned land with buildings if any, including excess vacant land under Urban Land (Ceiling and Regulation) Act, 1976 not vested in State Government.
However, it excludes land under encroachment. Definition of layout shows that it means - a piece of land or contiguous land under a common ownership, sub-divided into plots. Words and expressions used in it, but not defined are to be construed as per their meaning under the M.R.T.P. Act, 1966. Section 3 of this Act deals with regularization of gunthewari developments. It is applicable to gunthewari developments which existed as on 01.01.2001 and the plot holder can make an application to the planning authority as provided for in Section 4 thereof for such regularization. Proviso to this sub-
::: Downloaded on - 09/06/2013 18:18:30 :::wp131.11 26 section stipulates area in which the regularization of gunthewari development cannot be done. Forests to which Forest Conservation Act, 1980 applies, Eco-Sensitives Zones or Ecological Fragile areas as per Environment (Protection) Act, 1986 and Hilly stations as notified by the State Government, are some of the areas in which this benefit of regularization is not available. It is also not available in respect of certain categories of plots and buildings. Plots formed after 01.07.2001 and plots existing on lands under acquisition for public purpose or plots existing on lands to which extension of civic services is not viable, plots or buildings which are obstructions in making provisions for infrastructure facilities are stated to be such type of plots. The regularization of gunthewari development is made subject to certain condition by Sub-section [2] of Section 3. One condition is, if there are unsold unbuilt plots in the layout. 10% of the total plots in layout vest in the planning authority. Open marginal spaces are required to be surrendered to achieve a road width of 9 meters or required development plan width, if the plot is in the area of the Municipal Corporation and 4 ½ meters road width in other areas. Planning authority is not responsible to provide alternate plots or otherwise compensate plot holders displaced or affected by any development or rectification carried out in the process of regularization and up-
gradation. The regularization of gunthewari development does not ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 27 confer any title or claim in respect of land or building not already enjoyed by its holder prior to such regularization. The payment of compounding fee and development charges is also a condition precedent.
24. Section 4 contains procedure for regularization. As per Section 4[2], the applicant-plot holder has to submit various documents, which include proof of his ownership or proof of his lawful possession, existing layout plan, plan of existing construction, plan of rectification warranted and an undertaking to remove un- compoundable infringements. The applicant also has to deposit the compounding fees and development charges by demand draft. This application is required to be made within 6 months of 30.04.2001.
Sub-section [3] of Section 4 obliges the planning authority to scrutinize the cases to note fulfillment of the stipulated compliances including the proof of actual rectification regarding un-compoundable infringements and thereafter to issue a certificate of regularization, if it is satisfied on all these counts. Section 5 lays down consequences of regularization.
Sub-section [1] of Section 5 begins with non-obstante clause and it stipulates that on being regularized, the gunthewari development is deemed to have been exempted under Section 20 of the Urban Land Ceiling Act from the provisions of Chapter III of that Act and converted ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 28 into non-agricultural use for all purposes of the Maharashtra Land Revenue Code, 1966. However, this is subject to payment of non-
agriculture assessment and other terms and conditions of such conversion. Provisions of Development Plan and Regional Plan so far as such gunthewari development is concerned, stand either modified or relaxed, as may be required. We are required to make reference to this Section little later again.
25. Section 6 then deals with up-gradation of regularized gunthewari development. Amounts received by the planning authority on account of compounding fees are required to be kept separately under distinct head of account, layout wise, and utilized for providing on site infrastructure in the respective layout regularized under Gunthewari Act. 15% of that amount can be retained by the planning authority for its administrative expenses. On site development is required to be undertaken in proportion to amount of compensation i.e., compounding charges received by the planning authority and indivisible infrastructure or services or amenities or facilities are to be provided, after the specified minimum number of plots in the layouts are regularized. Individual or divisible infrastructure or services or amenities or facilities can be provided after the plot has been regularized. Section 7 is about control of Gunthewari Development. It ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 29 enables the planning authority to demolish unauthorized construction which has not been regularized after giving one months notice. Owner or occupier receiving such notice can apply for regularization of such unauthorized development even at that stage. If he fails to apply, the planning authority has to demolish the same. Sub-section [3] obliges Police to provide adequate protection and support to the planning authority for carrying out demolition. Chief Officer of the planning authority or Collector who fails to remove the gunthewari development undertaken after 30.04.2001 within a period of six months from the date of occurrence or then Commissioner of Police or Superintendent of Police failing to provide protection, are deemed to have committed an offence punishable with fine up to Rs.10,000/-. Person who prevents or obstructs the planning authority or other officers in discharge of their duties, person who carries out such gunthewari development and person who aids or abets it are also treated similarly. Section 8 gives power of entry to planning authority to ascertain whether any land is being or has been developed in contravention of any provision of 2001 Act or any other law, for making measurement or survey and other similar purposes. Sections 9, 10 and 11 deal with service of notice, Public notice, grant of reasonable time to comply etc. While Section 12 deals with authentication of orders and documents. Section 13 is about offences by companies. Section 15 specifies court of Judicial ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 30 Magistrate First Class as competent to try offence punishable under said Act. Section 18 gives finality to orders passed or directions issued to State Government or planning authority. Section 19 confers powers to delegate. Section 20 specifies officers of planning authority who can exercise the powers. Section 21 requires the planning authority to carry out such directions or instructions, as may be issued by the State Government for efficient administration of 2001 Act. In case of disputes in relation to the same, decision of State Government is made final. Section 22 requires the planning authority to furnish to State Government such reports, returns and other information as the State Government may from time to time require. Section 23 is power to make rules and Section 24 is power to make regulations. Last section i.e. Section 25 repeals ordinance No. XIII of 2001.
26. In various judgments, scheme and purpose or object of the M.R.T.P. Act, 1966 or other pari-materia enactment prevalent in the other States in India, is already explained. It cannot be disputed that it is a complete code, in so far as the building operations or developments are concerned. It provides for planning, development and use of lands in regions established for that purposes and for Regional Plan therefor.
It attempts to make better provisions to ensure that the town planning ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 31 schemes are made in a proper manner and their execution is made effectively. It also provides for creation of new towns, compulsory acquisition of lands for public purpose as per the development plans.
Section 2[7] defines Development to mean, carrying out of building , engineering, mining or other operations in / or over or under the land or then making any material change therein and includes demolition and reclamation re-development and layout and sub-division of any land. Word "to develop" is to be construed accordingly. Thus preparation of layout is development within the meaning of MRTP Act 1966 and therefore, has to be in consonance with it. It is an admitted position that in absence of 2001 Act, the development undertaken by the respective petitioners and treated as gunthewari development under that Act would have been illegal and could have been dealt with in accordance with the various penal provisions in MRTP Act. The laying of plots in agricultural land or either privately owned land not in consonance with the M.R.T.P. Act, 1966 has been recognized as gunthewari development by 2001 Act and offer to have it regularized was extended thereunder. Definition of layout in Section 2[b] of the 2001 Act itself shows the effort made in this directions. Chapter III of 1966 Act deals with preparation of development plan. It's contents and preparation of final development plan, which is binding as per the provisions of Section 31[6] on the planning authority, read with Section ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 32 42, it is an obligation of the planning authority to take steps to carry out the provisions of such development plan. Chapter IV deals with control of development and use of lands included in the development plan.
The change in user of such land for any other purpose is not permitted.
How permission for development can be obtained, granted or refused, appeal against it are all facts associated with the process of legal development and same has been provided in this Chapter. Chapter V speaks of preparation of contents of development plan schemes and through such schemes the developments envisaged in final development plan can be implemented. Thus only orderly mode and manner of such development on uniform basis is prescribed and ensured by the State Legislature.
27. Thus, MRTP Act 1966 Act shows the normal and universal procedure which must be followed for undertaking development in area of any planning authority, including the present respondent no.2. The 2001 enactment has been brought into force to control and curb the unauthorized preparation of layouts in lands which cannot be put to use for residential purposes, because they are included either in agricultural zone or industrial zone or other similar zones/belts in MRTP Act. Its removal is also possible under MRTP Act but it was found militating with interest of poor people who could not be blamed for it.
::: Downloaded on - 09/06/2013 18:18:30 :::wp131.11 33 Regularization of such illegal developments is one time measure applicable only to gunthewari developments which have come into existence till 01.01.2001. Subsequent such developments are not tolerated at all by the Legislature and responsible officers permitting the same are deemed to have committed an offence and are liable to be punished upon conviction. Thus the Chief Executive Officer of the respective planning authorities as also high ranking police officers are also dealt with iron hand, if they ignore their obligation. Any dereliction on their part has been thus sternly dealt with. The 2001 Act enables not only owner of such unauthorized plot, but also person in legal occupation thereof to seek benefit of relaxation or concession granted thereunder. Section 7 obliges the planning authority to demolish such development after giving opportunity to owner or occupier. The regularization of such unauthorized and illegal development as one time measure, is a policy decision taken in public interest i.e., need to protect economically weaker citizens because of "satisfaction" of the State Legislature. This exception or concession is infact a deviation from general law on development applicable in State of Maharashtra i.e. M.R.T.P. Act, 1966. The provisions noted by us above, show obligation of owner or occupier to surrender land even open marginal spaces to provide public roads of requisite width and for that he is not entitled to any compensation. If while making such ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 34 provision, some plots are totally obliterated/lost, the planing authority is not responsible to provide alternate plots or then to otherwise compensate the plot holder who is displaced or affected by such development or rectification. These provisions are inconsistent with similar provisions which appear in M.R.T.P. Act, 1966. Thus a person seeking regularization of his gunthewari development has been made eligible to claim concession by the State Legislature and if he agrees to terms and conditions subject to which it has been so extended, then only he can get its benefit. He has to submit a plan for rectification so as to bring his construction/plot as far as possible in accordance with law, and also he has to give an undertaking to rectify un- compoundable parts. This being the integral part of procedure regularization, it is apparently clear that scheme of Gunthewari Act, 2001 cannot be compared with M.R.T.P. Act, 1966. What is illegal development under M.R.T.P. Act, 1966 is sought to be compounded by ignoring those illegalities in 2001 Act.
28. The 2001 Act does not stop at regularization. Its Section 6 then attempts to upgrade that regularized gunthewari development.
Thus the common or indivisible infrastructure or individual or divisible infrastructure can be provided at the cost of such gunthewari developers in that area, as prescribed in Section 6. The funds generated ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 35 on account of compounding fees are to be accounted under a separate head and only 15% thereof can be used by the planning authority towards its administrative charges. Each layout thus has its separate fund with respondent 2 and amount therein can be spent only on said layout. These features also distinguish the further development in such regularized area from that under M.R.T.P. Act. Thus both the Acts deal with subject of development, but operate in different fields and therefore, are neither pari-materia nor complementary. Regularization under Gunthewari Act does not exclude application of or does not confer immunity from MRTP Act, 1966 for all purposes. Section 5 of 2001 Act which deals with consequences of regularization needs to be understood in this background. It incorporates a deeming fiction. If such gunthewari development have come up on vacant land as understood under the Urban Land Ceiling Act, that land is deemed to be exempted under Section 20 thereof, and hence, cannot be declared surplus. If it has come up on agricultural land, because of Section 5, that land stands converted to a non-agricultural user for all purposes of Maharashtra land Revenue Code. The last provisions of Section 5[1] on which the learned Senior Counsel appearing on behalf of then petitioners has placed reliance, appears in this background. It stipulates that "the provisions of Development Plan or Regional Plan as the case may be, shall so far as such development is concerned, stand modified ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 36 or relaxed, as may be required." Thus, the provisions of development plan or regional plan which are cardinal for legal development under M.R.T.P. Act, 1966 get eclipsed only for limited purpose of regularization of such gunthewari development. Because of this provision, gunthewari development which is contrary to stipulation under the development plan or regional plan, and therefore illegal, cannot be treated as illegal and is saved from removal or demolition.
But, then this last part of Section 5[1] does not mean that such gunthewari development becomes legal and regular development for all purposes under the M.R.T.P. Act, 1966. The legislature has while providing a deeming fiction in relation to non-agricultural user employed words "for all purpose of Maharashtra Land Revenue Code, 1966". Absence of similar provision in so far as the M.R.T.P. Act, 1966 is concerned and language employed in last part is deliberate. It indicates only an intention not to treat gunthewari development as illegal or irregular because it is in violation of the development plan or regional plan. Effort of petitioners to show that gunthewari development once regularized must be treated as legal and regular development even for all purposes under the M.R.T.P. Act, 1966, therefore has to fail. Once it is regularized by ignoring the breaches of the development plan/regional plan, scheme of 2001 Act lays down steps to be undertaken for its up-gradation, as stipulated in Section 6 ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 37 thereof. Thus there is no occasion to switch to M.R.T.P. Act, 1966 at all. If gunthewari development was to be regularized for all purposes even under MRTP Act,1966; Legislature would not have made provision for its further its further up-gradation in Gunthewari Act,2001.
29. Most significant provision determinative in this respect is Section 156 of the general and normal law governing building/development operations in entire State i.e., MRTP Act,1966.
Its aim and object is already noted by us above. Gunthewari Act does not contain any reference either directly or indirectly to this section 156 at all.
Section 156 of the MRTP Act reads thus:-
"(156). Notwithstanding anything contained in any law for the time being in force
(a) (deleted by Maharashtra Act No.10 of 1977)
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."::: Downloaded on - 09/06/2013 18:18:30 :::
wp131.11 38 Section 156 opens with a non-obstante clause and is therefore not subject to the provisions of the Gunthewari Act. Section 156 unequivocally lays down that when development has not been under the MRTP Act, such development is not deemed to be lawfully undertaken or carried out by even if the permission, approval or sanction required therefor under any other law had been obtained. In 2009(2) Mah.L.J. 714--2009 (4) LJSoft 141- (Shirdi Nagar Panchayat Vs. Gordia Budget Hotel & ors.,) learned Single Judge of this Court has found that even if the permission for development was obtained under the Bombay Village Panchayat Act.1958 and was continued after establishment of the municipal council due to the direction of the State Government issued under section 340(2) of the Maharashtra Municipalities Act,1965, said development i.e., building construction cannot be continued after the Government declared its intention to prepare a development plan for any area, unless permission is obtained under MRTP Act. It is held that this permission is required to be separately obtained and any construction without such permission is illegal. The conclusion drawn is neither perverse nor erroneous.
Primacy given to MRTP Act in field of development by the Legislature is thus evident. Gunthewari Act carves out an exception to this general law. Section 5 of Gunthewari Act makes room for a very limited ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 39 deeming fiction in relation to Gunthewari development. It does not equate such gunthewari development after its regularization, with development under MRTP Act. It only arrests application of those stipulations in development plan or regional development plan which otherwise would have warranted demolition of that illegal gunthewari development. Lands in adjacent fields in which plots were not laid prior to 01.01.2001 continue under same restraint and those stipulations in development plan or regional development plan which stand relaxed for gunthewari development, prohibit any such activity on this adjacent field. Legislature has intentionally not made any provision in Gunthewari Act to treat such regularized gunthewari development as legal development under MRTP Act. Gunthewari Act does not affect the scheme of its Section 156 at all. This deliberate omission by the State Legislature in 2001 Act can not be overlooked. Gunthewari Act regularizes only certain otherwise illegal developments in larger public interest and simultaneously provides for stern action not only against violators but also against public officers, if they permit such illegalities.
Provisions for up-gradation of such regularized gunthewari developments are also made to ameliorate the situation prevailing there. The precautions taken to avoid recurrence in adjacent fields/zones can not be lost site of. Persons from economically weaker sections who have been benefited by this exercise are therefore not ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 40 empowered to capitalize on it. This is apparent because of undertakings furnished by them before asking for benefit of this Gunthewari Act.
30. D.C.R. 2000 for Nagpur City, particularly its Part-IV deals with general planning requirements. Regulation 28 shows that the use of land situated within the Nagpur Municipal Corporation limits allocated, designated or reserved for certain purposes in development plan, is to be regulated in regard to type or manner of development according to table no.27. The user of land on which the petitioners have undertaken gunthewari development, gets converted because of Section 5 of the 2001 enactment to non- agricultural purposes.
Regulation no.29 deals with transfer of development rights. The separation of development potential of land from land which is under acquisition, as a negotiable instrument is a well-recognized concept. In the scheme of 2001 Act, it is clear that the person who surrenders his marginal space for road is not entitled to claim any compensation.
Free surrender of 10% plots [if unsold and unbuilt] in such layout, is also a condition for enjoying the concession. Thus the owner or occupier of such plots regularized in gunthewari development cannot earn any T.D.R. in relation to such surrender. Purchase of otherwise valid T.D.R. by respective petitioners, is not in dispute. They are having necessary development rights certificate (DRC) and they have annexed ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 41 the same along with their revised building plan for sanction.
However, regulation no.29.10 shows that the D.R.C. is not valid for use on receivable plots in areas which are listed thereunder and identified as no T.D.R. zone. They are as follows :-
(a) In area included in central zone as shown on
Development plan.
(b)
All Gaothan/congested area shown on Development plan and notified slums included in the limit of N.M.C.
(c) Area of Rajbhavan.
(d) Area covered by village, Sitaburdi, Gadga,
Dharampeth.
(e) All properties abutting National Highways, State
Highways and ring road upto 50m. Depth or two
properties depth, whichever is more.
(f) Area in Agricultural zones and in blue zone
[prohibitive zone] and red zone [restrictive zone] as specified by irrigation department.
(g) On plots for housing schemes of slum dwellers for which additional F.S.I. is permissible.
(h) Areas where the permissible F.S.I. is less then 1.0 and ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 42 also where the F.S.I. of 2 or 2.5 [as the case may be] as permissible under previous D.C. Rules is already consumed.
31. Thus one of the purpose of said provision is obviously to avoid further congestion. Perusal of clause 29.11 shows that T.D.R. purchased in relation to plots in Zone "A" can be used if receivable plots is in Zone "B" and Zone "C". If T.D.R. purchased is of plot situated in Zone "B", it can be used on a receivable plot located in zone "B" and Zone "C". If plot of which T.D.R. is purchased is in zone "C", receivable plot must also to be in Zone "C". This user is of-course subject to restraints envisaged in clause 29.10 above. The fact that T.D.R. cannot be used in agricultural zone or prohibited zone or restricted zone, is apparent from Clause [f] of regulation no.29.10. The provisions of 2001 Act show an effort by the State Legislature to confer limited legal status upon the development which are otherwise unlawful as per MRTP Act,1966. The law has been enacted with a particular purpose and therefore, is by way of an exception to the general law on this subject, prevailing in the State. That law is Maharashtra Regional and Town Planning Act, 1966. Specified illegal constructions labeled as "gunthewari development" are treated by State Legislature in particular manner and are saved from demolition and removal. Definition of ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 43 Gunthewari development in 2001 Act itself reveals that it can not be accepted as legal development under 1966 Act. Special or parallel provisions for rectification or up-gradation made in 2001 Act would not have been otherwise necessary. Regularization offered vide 2001 Act is as one time measure and a deviation from 1966 Act or by creating an exception for it. Merely because gunthewari development of petitioners is regularized, for all purposes of Maharashtra Land Revenue Code, 1966 that by itself is not sufficient to take out their area from agricultural zone, in so far as the D.C.R. 2000 for Nagpur City or then provisions of Maharashtra Regional and Town Planning Act, 1966 are concerned. Use of T.D.R. by persons like petitioners, whose developments have been regularized by showing leniency will add to mischief which is sought to be controlled or eradicated by enactment like Gunthewari Act, 2001. It may defeat proper up-gradation in gunthewari regularized areas. Drastic measures like surrender of even marginal space lying open to sky by plot owner/occupier to enable construction of public road and denial of compensation for such surrender in Gunthewari Act, itself prove inability of such owner/occupier to earn any TDR therefor. Even entire plot may in a given case lost to make space to locate a public road. The Gunthewari Act does not make any provision for public utility or garden etc. which are associated with regular development under MRTP Act. Under MRTP ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 44 Act, 30% to 50% of layout area may be lost for making provisions for open playgrounds, gardens and public utility. When Legislation has denied him TDR for land so surrendered during gunthewari regularization, the intent behind the same shall stand defeated, if TDR purchased elsewhere is allowed to be loaded on such gunthewari regularized plots.
32. Though the possession and enjoyment of property is the right under Article 300A of the Constitution of India, right to develop it is subject to municipal laws in that respect and this fetter on that right is well recognized. The petitioners ought to have demonstrated that there development was legal and valid in terms of M.R.T.P. Act, 1966 so as to enable them to claim the right to load T.D.R. on their respective plots. They are not in a position to do so. Original owners of these gunthewari regularized plots are beneficiaries of one time concession made in their favour by the State Legislature in public interest. Permitting such beneficiaries to load T.D.R. to their gunthewari regularized plots, will be inconsistent with the object and purpose of 2001 Act. The basic design was/is to help economically weaker section to solve their housing problem by saving it from otherwise imminent demolition as per MRTP Act. Relaxation granted is one time measure only and aim is to stop such illegal development activities in future.
::: Downloaded on - 09/06/2013 18:18:30 :::wp131.11 45 Purpose of Gunthewari Act is to upgrade that development as far as possible. Discussion above leads to unambiguous conclusion that MRTP Act,1966 is the Master law governing the subject of developments/constructions in State of Maharashtra. The State Legislature could have dealt with gunthewari development and attempted to regularize it even under MRTP Act, particularly its Chapter V. It is evident that looking to the nature of gunthewari developments, State found it not proper to deal with it under existing general law and came out with special law in the interest of economically weaker section as one time measure. This special enactment viz. Gunthewari Act, 2001 is very limited dilution of MRTP Act and relaxation offered from development plan or regional plan thus needs to be viewed as an exception and not a blanket license to further add to development which otherwise would have been illegal. The relaxation made available is only to protect development regularized as gunthewari development and effort is to upgrade it to the minimum extent found necessary by State. Hence, entire exercise in that direction and gunthewari regularized development is only controlled by 2001 Act and petitioners can not invoke any other law for said purpose unless Gunthewari Act itself or the other law expressly so stipulates.
33. It is not in dispute that the petitioners before us are not the ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 46 original beneficiaries and are not therefore belonging to economically weaker sections. They have purchased plots after their regularization or after coming into force of 2001 Act and for commercial exploitation.
Facts in Writ Petition No.131/2011 show that power of attorney of petitioner, a builder, has with full knowledge exceeded F.S.I. as he found size of apartment as per sanctioned building plan too small. He was aware of sanctioned building plan and proceeded to violate it with impunity. This step and design is itself unpalatable with the purpose of Gunthewari Act, 2001. After getting regularization under Gunthewari Act, 2001 as one time measure, with full knowledge, the unauthorized construction has been raised and now effort is to have it regularized by purchasing T.D.R. Thus, petitioner's mindset shows impression that legal status is available for sale in market. This is contrary to Sections 5, 6 and 7 of the 2001 Act. Gunthewari Regularization is not a license to get over the MRTP Act, 1966.
34. We therefore, find apprehension expressed by the State Government that purpose behind Gunthewari regularization will be defeated if such loading is permitted, stands fortified. Refusal of respondents to permit the petitioners to load T.D.R. on their respective plots, is neither unconstitutional nor illegal. On the other hand, it is in consonance with the spirit of M.R.T.P. Act, 1966 and Gunthewari Act, ::: Downloaded on - 09/06/2013 18:18:30 ::: wp131.11 47 2001. Rights of petitioners under Art. 300A are not jeopardized at all.
35. We, therefore, do not find any substance in the petitions.
The same are accordingly dismissed. Rule discharged. No cost.
JUDGE JUDGE
36. At this stage Shri A. Gharote, learned Counsel appearing for petitioners request for continuation of interim orders for a further period of eight weeks from today so as to enable the petitioners to approach the Hon'ble Supreme Court.
37. Shri S.K. Mishra, learned Counsel for respondent nos. 2 to 4 and Shri N.W. Sambre, learned Government Pleader appearing on behalf of respondent no.1 State, are opposing the request.
38. However, in the interest of justice, we continue the interim orders for a period of eight weeks from today and the same shall cease to operate automatically thereafter.
JUDGE JUDGE
Rgd.
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