Bombay High Court
Balaji Garden Tower No. 6 Chsl Through ... vs State Of Maharashtra And Ors on 14 February, 2020
Bench: S.J. Kathawalla, B.P.Colabawalla
13-WP-8708-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8708 OF 2018
Balaji Garden Tower No.6 Cooperative Housing Society Limited ...Petitioner
Versus
State of Maharashtra and Ors. ...Respondents
Mr. Anil Anturkar, Senior Advocate with Mr. Ajinkya Udane i/by Mr. Ranjit Shinde,
for Petitioner.
Ms. M.P.Thakur, AGP, for Respondent Nos.1 to 4.
Mr. Sandip D. Shinde, for Respondent No.5.
Mrs. Ritika Agarwal with Ms. Salman Balbale i/by ACE Legal, for Respondent No.6.
CORAM: S.J. KATHAWALLA &
B.P.COLABAWALLA, JJ.
DATE: 14th FEBRUARY, 2020 P.C.:
1. The Petitioner in the above Writ Petition is Balaji Gardens Cooperative Housing Society (Petitioner Society). The entire project of Balaji Gardens housing complex consists of total 09 buildings and a bungalow. Respondent No. 1 is the State Government and Respondent Nos. 2 to 4 are the various other State Government and Municipal Corporation Authorities. Respondent No. 5 is Kalyan Dombivali Municipal Corporation (KDMC), the local Municipal Authority. Respondent No. 6 is M/s. Mahavir Enterprises, a Developer who has constructed the 09 buildings and a bungalow comprised in Balaji Gardens spread over an area of 35,770 sq. mtrs. At Ayre, Dombivali, Thane.
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2. The Petitioner Society has in the above Writ Petition impugned the order dated 12th February, 2015 issued by Respondent No. 1 - State Government to Respondent No. 5 - KDMC directing it to take suitable action under Section 51 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) in respect of Plot of 5100 sq.mtrs., for which there was a title dispute and the development permission had been granted in an allegedly irregular manner. It also directed the KDMC to undertake proper investigation against sanctioning ofcers. The plot of 5100 sq. mtrs having Survey No. 9A/1 is part of larger parcel of land of 35,770 sq.mtrs. on which the entire Balaji Garden Estate has been constructed.
3. Mr. Anturkar, the learned Senior Advocate appearing for the Petitioner Society has submitted that as a result of the order of Respondent No. 1 - State Government, building No. 6 and building's type B-1 (1-A, 1-B) have not yet been granted Occupancy Certifcate (OC) in spite of an Application in this regard having made as far back as on 17th July, 2014.
4. Mr. Anturkar has further submitted that as a result of the impugned Order, KDMC has further issued notice under Section 51 of the MRTP Act dated 10 th March, 2015 directing Respondent No. 6 Developer to formulate a fresh development plan and seek fresh development permission for the construction of the same, notwithstanding that the entire construction was already fully complete.
5. The Petitioner Society has therefore prayed for quashing and setting aside Nitin 2/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:56 ::: 13-WP-8708-2018.doc the impugned Order dated 12th February, 2015 and granting stay on its efect and operation.
6. Respondent No. 6 Developer is supporting the above Writ Petition and has through its Advocate - Ms.Ritika D. Shinde i/b. ACE Legal has placed the following detailed facts before the Court :
i. Respondent No. 6 Developer for the purpose of developing a parcel of land at Mouje, Ayre, Taluka-Kalyan, District-Thane acquired several adjoining parcels of land totaling to 35770 sq. mtrs. This included plots of land admeasuring 3400 sq. mtrs. and 1700 sq. mtrs. bearing Survey No. 9A/1, which is the subject matter of the present dispute. These plots of land being 3400 sq. mtrs. was purchased from Smt. Kashibai Vaikunth Patil and three others referred to as original owners and plot of 1700 sq. mtrs was purchased from Shri Pundalik Tukaram Patil. Respondent No.6 Developer entered into Development Agreement with Smt. Kashibai Vaikunth Patil and three others on 31st December, 2015 duly registered and entered into a Development Agreement with Shri Pundalik Tukaram Patil on 13th January, 2006 duly registered. ii. On 08th March, 2006 Respondent No.6 Developer also applied to the Taluka Inspection Land Records for demarcation of the boundary of Plot No. 9A/1 for 3400 sq. mtrs. This application was co-signed by one Shri Dashrath Patil being the owner of an adjoining plot. After inspection, K Patrak was granted on 27 th March, 2006. Therefore, at this point of time Shri Darshrath Patil was well aware that the plot of Nitin 3/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:56 ::: 13-WP-8708-2018.doc 3400 sq. mtrs. was being acquired by Respondent No.6 Developer. Then Respondent No.6 Developer applied for an IOD from KDMC in respect of the entire parcel of land admeasuring 35700 sq. mtrs. on 24th May, 2006.
iii. At this point of time, there was a substantial appreciation in the value of land. Therefore, Shri Dashrath Patil and others comprising of seven families, raised a title dispute regarding the plot of land admeasuring 3400 sq. mtrs. In order to amicably settle the matter, Respondent No.6 Developer and its representative Partner held series of meetings with the Patil families, which were duly minuted and which were duly attended by Shri Dashrath Patil and the others. In conclusion, a Supplementary Development Agreement (SDA) was entered into on 19th October, 2006. A bank account bearing No. SB/10042 with Dombivali Nagarik Sahakari Bank was opened on 29th June, 2006 in the name of fve/six representatives of the 7 families. As per the terms of the SDA, an additional amount of Rs.58 Lakhs was deposited into the said bank account. Thereafter disbursements were made to the various family members in due proportion by the account holders. In this connection, Shri Dashrath Patil also received a sum being his due share.
iv. Thereafter, requisite applications for NA permission and construction certifcate were made. NA permission dated 15 th December, 2006 and 7th February, 2008 and Commencement Certifcates (CCs) dated 10th February, 2007, 30th March, 2007 and 26th May, 2009 were duly granted. However, in a complete turn around Shri Nitin 4/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:56 ::: 13-WP-8708-2018.doc Darshrath Patil and some family members initiated a title dispute against the said plot bearing Survey No. 9A/1 in the Civil Court Kalyan by fling an RCS Suit No. 160 of 2009 on 17th March, 2009 in respect of 3400 sq. mtrs. This was followed by fling RCS Suit No. 570 of 2009 in respect of 1700 sq. mtrs. Shri Dashrath Patil further raised a belated dispute against the inclusion of names of Smt. Kashibai Vaikunth Patil and Shri. Pundalik Patil in the proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (BTALA) and the names entered in the 7/12 extract relating to these two parcels of land. Shri Dashrath Patil also sought to bring an injunction against the ongoing construction by Respondent No.6 Developer. His injunction application was successively rejected by the Civil Court and District Court. The proceedings fled before this Court was withdrawn on censure by Court. v. In the present proceedings, Shri Darshrath Patil lodged several complaints before the KDMC and the State Government raising the issue of title dispute on the plots admeasuring 5100 sq. mtrs. (3400 sq.mtrs + 1700 sq. mtrs.) as a result of which he claimed that all permissions given for the development and construction of the building project are liable to be withdrawn. vi. In the meantime, Respondent No.6 Developer had completed the construction of building Nos. 3,4,7 and 8 and obtained their OC from KDMC on 28 th July, 2009. Respondent No.6 Developer had also completed the construction of building Nos. 2 and 5 and applied for OC on 19th March, 2010. Nitin 5/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:56 :::
13-WP-8708-2018.doc vii. At this point of time, the KDMC issued an order under Section 51 of the MRTP Act dated 30th April, 2010 against Respondent No.6 Developer directing them to get approval for a fresh development plan after excluding the FSI of the CRZ area and disputed area of 5100 sq. mtrs. This was contested by Respondent No.6 Developer in Civil Court, which decided in favour of Respondent No.6 Developer. On further appeal by the KDMC, District Court also gave its decision in favour of Respondent No. 6 Developer. At this point of time, the State Government issued the impugned notice directing the KDMC to take appropriate action under Section 51 of the MRTP Act.
viii. In view of the impugned order dated 12 th February, 2015 issued by State Government, the KDMC issued a notice under Section 51 of the MRTP Act dated 10 th March, 2015 directing Respondent No.6 Developer to apply for a fresh construction permission in light of two reasons : 1) Title dispute in respect of Plot No. 9A/1 admeasuring 5100 sq. mtrs. and 2) CRZ area forming part of the total parcel of 35770 sq. mtrs. not having been granted NA permission. This was completely violative of the terms of the CC, which clearly stated that any title dispute on the plot of land would not be the responsibility of the KDMC but rather Respondent No. 6 Developer. Respondent No. 6 Developer fled an appeal before the State Government under Section 47 of the MRTP Act on 25 th July, 2015. A note was recorded by the State Government that the said appeal was not maintainable because the stamp duty was Nitin 6/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:57 ::: 13-WP-8708-2018.doc short by Rs.40 and that Section 47 of the MRTP Act was not applicable to the facts of the case. There was no order on merits. Respondent No.6 Developer duly paid the said shortfall of Rs.40 and prayed once again for intervention under Section 47 of the MRTP Act but to no avail.
ix. In the meantime, the Petitioner Society fled the present Writ Petition naming the Developer as Respondent No. 6. Respondent No. 6 duly supports the above Writ Petition.
x. After getting no relief from the Urban Department in its appeal under Section 47 of the MRTP Act and the appeal itself having been held to be not maintainable, Respondent No.6 Developer fled a Writ Petition (L) No. 17611 of 2019 on 24th June, 2019 before this Court pleading for the quashing of notice dated 10 th March, 2015 issued under Section 51 of the MRTP Act and praying for grant of OC in respect of building type B-1 (1-A,1-B), building no. 6. The said Writ Petition is pending disposal.
7. Mr.Kailas Madhukar Badhan, Deputy Secretary to the Government of Maharashtra, Urban Development Department, Mantralaya, Mumbai has today tendered his Afdavit dated 14 th February, 2020, wherein he has stated that one Dasharath Patil has fled a complaint vide dated 2 nd February, 2012 with the learned Chief Minister with following requests :
i. To omit the area of his own from construction permission of City Survey Nitin 7/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:57 ::: 13-WP-8708-2018.doc No. 9A, Hissa No. 1 pai.
ii. To demolish constructions within limit of CRZ. iii. To take appropriate action against the concerned ofcers.
8. According to the Deputy Secretary, the consultations with the various other departments as well as other allied ofces, were held upon receipt of the complaint ;
meetings were arranged under the Chairmanship of the Principal Secretary (UD-1), wherein the Director cum Joint Secretary (Town Planning), Commissioner, KDMC, Deputy Director, Town Planning, Kokan Division, New Mumbai, Incharge Deputy Director, Town Planning with others were present ; thereafter instructions were issued to the Commissioner, KDMC to submit a detailed report to the Deputy Director, Town Planning, Kokan Division, Navi Mumbai regarding irregularities committed, while granted permission to Balaji Garden as alleged in the complaint ; that instructions were also issued to the Deputy Director, Town Planning, Kokan Division, Navi Mumbai to tender his opinion on the detailed report of the Commissioner, KDMC and thereafter one more meeting was arranged under the Chairmanship of the Principal Secretary (UD-I), where the issue was discussed at length, the detailed report of the Commissioner, KDMC submitted to the Deputy Director, Town Planning, Kokan Division, Navi Mumbai vide letter dated 6 th December, 2013 and opinion of the Deputy Director, Town Planning, Kokan Division, Navi Mumbai tendered on it.
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9. The Deputy Secretary has in his Afdavit dated 14 th February, 2020 further stated that fnally considering all facts and circumstances, following proposal was put up for approval of the Chief Minister, Maharashtra State :
i. In the present matter, there is dispute about Survey No. 9A/1, area of 5100 sq.mtrs. and till date there is no fnal order of ownership in existence, therefore it was proposed to issue direction to the KDMC to take appropriate action under Section 51 of the MRTP Act and omit the said area from revised permission of the construction. ii. Request to be made to the Additional Chief Secretary (Revenue) to expeditiously decide the dispute of ownership of Survey No. 9A/1 area of 5100 sq. mtrs.
iii. Approval to be given for taking guidance of the Environment Department for making policy for grant of TDR to Sanctioned Development Scheme, which is get afected due to CRZ.
iv. Departmental Enquiry will be initiated against the concerned ofcers, who are responsible for the irregularities in the present matter.
10. The Chief Minister, State of Maharashtra granted his fnal approval, pursuant to which, the Order dated 12 th February, 2015 was issued, which is impugned in the above Writ Petition.
11. We have considered the aforestated facts and before we proceed further in the matter, we direct the State Government to fle its Afdavit on or before 6 th March, Nitin 9/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:57 ::: 13-WP-8708-2018.doc 2020 and inform this Court the following :
i. Under what provisions of law was the proposal circulated to and accepted by the then Chief Minister, State of Maharashtra, directing the KDMC "to take appropriate action under Section 51 of the MRTP Act and omit the said area from the revised permission of construction" ?
ii. Whether the State Government / the Chief Minister upon receipt of the complaint from Mr.Dashrath Patil dated 2nd February, 2012, ensured/ascertained that a copy of the same was served on/received by, the afected parties more particularly the Petitioner Society and Respondent No. 6 Developer ?
iii. Whether any reply was called for or any hearing was given to the afected parties before any proposal was forwarded to the Chief Minister and the Chief Minister approving the same before issuing the impugned Order dated 12 th February, 2015 to the KDMC ?
iv. Whether KDMC sought any reply from the afected parties or gave a hearing to them before issuing notice under Section 51 of the MRTP Act dated 10 th March, 2015 directing Respondent No. 6 Developer to formulate a fresh development plan and seek fresh development permission for the construction of the building/s despite the fact that the entire construction was already fully complete ? v. Whether any orders are passed by the Additional Chief Secretary (Revenue) to expeditiously decide the dispute of ownership of Survey No.9A/1 admeasuring area Nitin 10/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:57 ::: 13-WP-8708-2018.doc of 5100 sq.mtrs and under what provisions of law he has passed or can pass such orders, more so when the dispute qua determination of title is pending before the Courts ?
vi. Whether the guidance sought from the Environment Department for making policy for grant of TDR to Sanctioned Development Scheme which is afected due to CRZ, is received ?
vii. Whether the departmental inquiry as recorded in the Afdavit dated 14 th February, 2020 is initiated against any of the concerned ofcers responsible for the alleged irregularities in the matter ?
viii. Stand over to 6th March, 2020. ( B.P.COLABAWALLA, J. ) ( S.J.KATHAWALLA, J. ) Nitin 11/11 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 09/06/2020 14:32:57 :::