Bombay High Court
Harishchandra Bhagwan Bhujbal And Anr vs The City And Industrial Development ... on 16 February, 2022
Bench: R. D. Dhanuka, S.M.Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
KANCHAN Digitally signed by
KANCHAN VINOD MAYEKAR
VINOD
WRIT PETITION (ST) NO. 3113 OF 2022
Date: 2022.02.16 11:15:04
MAYEKAR +0530
1. Harishchandra Bhagwan Bhujbal )
Age - 49 years, )
2. Sanjay Gangaram Bhujbal, )
Age - 58 years, )
Both residing at Bhujbal Mala, Podi No.2,)
Near Pillai College, Sector 16, New Panvel,)
Taluka Panvel, District Raigad, )
Pin Code 410 206 ) ..... Petitioners
VERSUS
1. The City and Industrial Development )
Corporation (Maharashtra) Limited, )
having its registered office at Nirmal, )
nd
2 Floor, Nariman Point, Mumbai 400 021)
And having its Head Office at CIDCO )
Bhavan, C.B.D.Belapur, Navi Mumbai )
400 614 )
2. The Chief Land and Survey Officer, )
CIDCO Ltd., CIDCO Bhavan, )
C.B.D.Belapur, Navi Mumbai 400 614 )
3. The Additional Chief Land and Survey)
Officer, CIDCO Ltd., CIDCO Bhavan, )
C.B.D.Belapur, Navi Mumbai 400 614 )
4. The Chief Controller of Unauthorised )
Constructions (Navi Mumbai and Airport))
CIDCO, CIDCO Bhavan, C.B.D.Belapur,)
Navi Mumbai 400 614 )
Notice of Respondent Nos. 1 to 4 be served
upon the Law Officer, Legal Department,
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CIDCO Bhavan, C.B.D.Belapur,
Navi Mumbai 400 614
5. The Collector, Raigad, )
Collector Office, Alibag, Taluka Alibag, )
District Raigad )
6. The Deputy Collector (Land Acquisition)
Metro Centre No.1, Panvel, Near Banthia)
High School, Sector 18, New Panvel, )
Taluka Panvel, District Raigad 410 206 )
7. The State of Maharashtra, )
Through its Secretary, )
Department of Urban Development, )
Mantralaya, Mumbai 400 032 )
Notice of Respondent Nos. 5 to 7 be served
upon the Government Pleader, Office of
Government Pleader, High Court,
Appellate Side, Mumbai 400 032 ..... Respondents
Mr.Sachin S.Punde for the Petitioners.
Mr.Nitin V.Gangal, a/w. Ms.Prerna Shukla for the Respondents -
CIDCO.
Mr. Vasant S.Gokhale, 'B' Panel Counsel for the State - Respondent
Nos. 5 to 7.
CORAM: R. D. DHANUKA AND
S.M.MODAK, JJ.
RESERVED ON : 9th FEBRUARY, 2022
PRONOUNCED ON : 16th FEBRUARY, 2022
JUDGMENT:-
By this petition filed under Article 226 of the Constitution of India, the petitioners have impugned the decision contained in letter KVM 3/19 WPST 3113 OF 2022.doc th th dated 17 January, 2022, letter dated 27 January, 2022, notices dated 20th December, 2021 along with records and documents pertaining to award dated 8th March, 1982 passed by the respondent no.6.
2. The petitioners also seek a writ of mandamus against the respondent nos. 1 to 3 forthwith to allot the developed plot admeasuring 3400 square meter in Sector No.16, Podi, New Panvel Podi to the petitioners under '12.5% scheme' by issuing allotment letters and by executing necessary lease agreements. Some of the relevant facts for the purpose of deciding this writ petition are as under :-
3. It is the case of the petitioners that, the predecessor of the petitioners owned lands bearing Survey No.277 admeasuring 02H- 45R-8P and Survey No.278, Hissa No.2 admeasuring 00H-99R-4P situated in the locality known as Podi in Village Panvel, Taluka Panvel, District Raigad. According to the petitioners, the said property was a joint family property of Gangaram Raghoji Bhujbal. It is the case of the petitioners that the said property was situated on the boundary of the old Municipal Limits of Panvel Municipal Council and is now KVM 4/19 WPST 3113 OF 2022.doc within the jurisdiction of Panvel Municipal Corporation. According to the petitioners,in the year 1960, the predecessor of the petitioners constructed houses, cattle-sheds, structures on the said property. There were many other houses and structures around the said property.
4. The respondent no.7 issued notification dated 3rd February, 1970 under section 4 of the Land Acquisition Act, 1894 for public purpose i.e. The Navi Mumbai Project published in the Maharashtra Government Gazette on 4th February, 1970. On 16th March, 1971, the corrigendum to the notification dated 3rd February, 1970 was published in the Maharashtra Government Gazette on 15th April, 1971. By the said corrigendum, the respondent no.7 notified the said property which was owned and possessed by the petitioners for the Navi Mumbai Project.
5. It is the case of the petitioners that the predecessor of the petitioners and other persons from Podi raised objection for acquisition of their properties and after considering their objections the State of Maharashtra issued directives in letter dated 20 th April, 1971 to the Collectors of Thana and Kolaba.
KVM 5/19 WPST 3113 OF 2022.doc th
6. On 28 December, 1972, the respondent no.7 issued declaration under section 6 of the Land Acquisition Act, 1894 which was published in the Maharashtra Government Gazette on 11th January, 1973. The respondent no.7 issued Erratum dated 17th February, 1973 published in the Maharashtra Government Gazette on 12th April, 1973 and further Erratum dated 9th September, 1974 published in the Maharashtra Government Gazette on 7th November, 1974.
7. It is the case of the petitioners that the respondent nos. 5 and 6 decided to exclude some portion i.e. an area admeasuring 00H-13R-1P from Survey No.277 and an area admeasuring 00H-02R-0P from Survey No.278/2 of the said property. On 8 th March, 1982, the respondent no.6 declared an award in respect of Survey No. 277 admeasuring 02H-32R-7P admeasuring 23270 square meter and Survey No.278/2 admeasuring 00H-97R-4P admeasuring 9740 square meter.
8. According to the petitioners, CIDCO prepared a map after considering the proposal for excluding areas from acquisition and by letter dated 2nd September, 1986 informed Special Land Acquisition KVM 6/19 WPST 3113 OF 2022.doc Officer for not carrying out any acquisition proceedings in respect of certain properties. The said property was shown on the said map and was thus excluded from acquisition process.
9. By Government resolutions dated 6th March, 1990 and 28th October, 1994, the respondent no.7 through its Urban Development Department formulated a scheme in consultation with respondent no.1 i.e. CIDCO '12.5% Scheme' wherein the 'Project Affected Persons' whose property was acquired for the said 'Navi Mumbai Project' is made entitled to the lease of land at the rate of 12.5% of their entire land so acquired. It is the case of the petitioners that they are entitled to get the benefits under the said scheme and thus had already applied to the respondent no.1 for allotment of developed plot admeasuring 2900 square meters under '12.5% Scheme' which according to the petitioners is under consideration by the respondent no.1. It is the case of the petitioners that they have submitted relevant documents on 30 th September, 2019 through one of the co-owners Mr.Madhukar Vasant Bhujbal to CIDCO.
10. It is the case of the petitioners that in respect of some other KVM 7/19 WPST 3113 OF 2022.doc acquired lands, i.e. Survey No.279/B, 228/0, 226/1 and 228/2 of Mauje Panvel, the petitioners and other co-owners are entitled to receive a developed plot admeasuring 1650 square meter. However, because of the unauthorized constructions, Plot No.10, Section 17 in Kamothe Phase II admeasuring 1149.81 square meter was allotted. The CIDCO has yet to release balance 500 square meter developed plot in respect of those acquired lands.
11. It is the case of the petitioners that because of family growth, the petitioners and their other relatives viz. brothers, their sons have made constructions in and around the year 2005 in the adjoining land of the said property and near their old houses. All these constructions are made in Plot No.22, Sector 16, Podi, New Panvel Podi. The petitioners state that the constructions are made for residential necessities and for the purpose of their livelihood. According to the petitioners, the petitioner no.1 has made a construction of two rooms totally admeasuring 160 square meter and the petitioner no.2 had made a construction of a room admeasuring 36 square meters. The Panvel Municipal Council was collecting property taxes in respect of the constructions prior to 2016 and thereafter by the Panvel Municipal KVM 8/19 WPST 3113 OF 2022.doc Corporation.
12. It is the case of the petitioners that by Board Resolution no. 9949 dated 3rd October, 2018, the respondent no.1 decided to regularize the structures constructed by Project Affected Persons. The said resolution provided that there would be no deduction of any area from the entitlement of Project Affected Persons under 12.5% scheme. It is the case of the petitioners that the respondent no.7 by letter dated 22 nd January, 2010 has approved and sanctioned the said Board Resolution dated 3rd October, 2008.
13. On 8th December, 2021, the petitioners along with other co- owners submitted an application under 12.5% scheme to the respondent no.1 and requested for allotment of a plot where the petitioners and other co-owners have already made constructions. The said application is pending before the respondent no.1.
14. On 20th December, 2021, the CIDCO issued notices under section 53(1)(a) of the Maharashtra Regional and Town Planning Act, 1966 in respect of the subject structures. In the said notice, it was alleged that the petitioners had made an unauthorized permanent KVM 9/19 WPST 3113 OF 2022.doc construction that the same should be removed by the petitioners within 24 hours and that the petitioners were threatened to demolish the said unauthorized construction if not removed by the petitioners. The petitioners filed a writ petition bearing stamp no. 25858 of 2021 before this Court. This Court disposed of the said writ petition by an order dated 24th December, 2021 by permitting the petitioners to make a representation before the CIDCO and directed the CIDCO to decide the said representation. It was directed that if the representation is decided against the petitioners, the respondent nos. 1 to 4 not to take any coercive steps against the petitioners on the basis of such adverse order for a period of one week from the date of communication of the said order.
15. On 27th December, 2021, the petitioner made a representation before the respondent nos. 1 and 2. The petitioner requested for personal hearing. The respondent no.2 by letter dated 17th January, 2022 took a decision that the Plot No.22, Sector 16, Podi, Panvel was reserved for allotment under social services and therefore the constructions could not be regularized. The respondent no.2 rejected the prayer of the petitioners for allotment of developed plot under KVM 10/19 WPST 3113 OF 2022.doc 12.5% Scheme at Sector 16, Podi, New Panvel. By letter dated 27 th January, 2022, the respondent no.2 took a decision not to regularize the said structures because the subject structures are outside 200 meters from Gaothan area of Village Asudgaon and also on the ground that the said plot where the suit structures are situated is reserved for social services.
16. Mr.Punde, learned counsel for the petitioners invited our attention to the impugned decision dated 17th January, 2022 and submits that the plot where the suit structures are situated is not reserved for social services. The subject structure mentioned in the letter dated 27th January, 2022 are situated in Revenue Village Panvel and thus the reasons recorded by the respondent no.2 that the subject structure are not within 200 meters are totally perverse and illegal.
17. Learned counsel invited our attention to the award made by the respondent. He relied upon the assessment bill issued by the Panvel Municipal Corporation for the assessment year 2018-2019 and would submit that the said structures are within the limits of the Panvel Municipal Corporation. He relied upon the definition of 'Gaothan' KVM 11/19 WPST 3113 OF 2022.doc under section 2(10) of the Maharashtra Land Revenue Code and would submit that the suit lands are within 100 meters of the Gaothan limits and thus are entitled to avail of the benefits of the 12.5 Scheme of the developed plot. He invited our attention to the office note dated 2 nd March, 2020 annexed at page 142 of the affidavit in rejoinder and would submit that the said office note would clearly indicate that the proposal under 12.5% Scheme is under consideration.
18. This matter appeared on board on 4 th February, 2022 when this Court after recording the brief submissions made by the learned counsel for the parties directed the petitioners as well as the CIDCO to produce relevant documents in support of their rival contentions. Pursuant to the said order, the petitioners filed affidavit in rejoinder dated 8th February, 2022. This matter appeared on board on 9 th February, 2022 when the learned counsel for the petitioners on instruction made a statement that his clients are not agreeable to vacate the suit structures.
19. Mr.Nitin Gangal, learned counsel for the CIDCO submits that the CIDCO is a New Town Authority for Navi Mumbai under the KVM 12/19 WPST 3113 OF 2022.doc provisions of the MRTP Act and has power and authority to dispose by lease land acquired which vest under section 113A of the MRTP Act. He submits that the reconfirmation of the Plot No.22 was part of Sector No.16 which was earmarked for a professional college i.e. a plot reserved for higher education. The said plot is indicated so in a map of reconfirmation of Plot No.22.
20. Learned counsel invited our attention to the map and the copy of the layout plan of Sector No.16, Panvel Podi indicating various zones in the said sector. He submits that the suit plot is situated about 3 kms away from Gaothan of Asudgaon which is the nearest village acquired by CIDCO to the plot in dispute. He submits that the structures constructed under the said unauthorized structures are situated at Village Panvel, Taluka Panvel at Survey Nos. 277/0 and 276/0 and do not fall within 200 meters of the gaothan boundary, as per revenue Village Panvel, but falls at a distance of 3 km away from the gaothan area of Village Asudgaon. He submits that as per the policy of CIDCO, the said construction cannot be regularized under the relevant scheme. He relied upon the report dated 19th January, 2022 submitted by the Land Survey Officer of CIDCO observing that the unauthorized KVM 13/19 WPST 3113 OF 2022.doc construction raised by the petitioners is found in Village Panvel and the said Podi is not a part of gaothan.
21. Learned counsel submits that pursuant to BR No. 9633, it was decided to allot the plots under the scheme of 12.5% to the allottees by way of computerized lottery system. Pursuant to the entitlement of the petitioners, they will be allotted the NA plots in the area which is earmarked for such allotment. It is submitted by the learned counsel that the Land Acquisition Act was admittedly enacted in the year 1894. The plot Survey Nos. 277 and 278 were earmarked in the year 2015 for public purposes. He submits that it is not the case of the petitioners that the suit structure were within 200 meters. Learned counsel submits that the petitioners cannot challenge the administrative decision taken on the basis of the policy of the Government and CIDCO in this writ petition.
22. Learned counsel invited our attention to the documents annexed to the affidavit in reply.
23. Mr.Punde, learned counsel for the petitioners in his rejoinder arguments submits that the stand of the CIDCO, that the subject plot is KVM 14/19 WPST 3113 OF 2022.doc reserved for professional college or social services is incorrect. He submits that the alleged reservation by the CIDCO is an attempt to disentitle the petitioners for regularization of their structures and/or allotment of developed plot under 12.5% scheme at Podi. There are several colleges and educational institutes in and around Sector 16. He invited our attention to some of the averments made in paragraph (4) of the affidavit in rejoinder in support of this submission.
REASONS AND CONCLUSION :-
24. Both the parties have made various submissions on the issue of the entitlement of the petitioners to get permanent alternate accommodation in lieu of the existing structures/land occupied by the petitioners. Insofar as the issue as to whether the CIDCO was empowered and is justified in passing the orders dated 17 th January, 2022 and 27th January, 2022 thereby rejecting the application for regularization of structures and further rejecting the allotment of developed plot to the petitioners under 12.5% Scheme for rehabilitation and resettlement of project affected person of Navi Mumbai Project are concerned, the petitioners have disputed the applicability of condition nos.2 and 4 forming part of the resolution no. 9941 mentioned in the said decision dated 17th January, 2022.
KVM 15/19 WPST 3113 OF 2022.doc
25. Learned counsel for the parties invited our attention to various documents in support of their rival contention whether the encroachment in question was affecting reservation of any kind and thus cannot be regularized and whether the structures in question fell within 200 meters of Gaothan boundary and was thus eligible for regularization or not.
26. It is the case of the CIDCO that the reconfirmation of the Plot No.22 was part of Sector No.16 which was earmarked for a professional college i.e. a plot reserved for higher education, which indicated of reconfirmation of Plot No.22. It is also the case of the CIDCO that the plot in question is situated about 3 kms away from Gaothan of Asudgaon, which was the nearest village acquired by CIDCO to the plot in dispute. On the other hand the contention of the petitioners is that none of these two conditions are satisfied in this case. According to the petitioners, structures in question are not affecting reservation of any kind and at the same time those structures fall within 200 meters of Gaothan boundary.
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27. During the course of the argument, Mr. Gangal, learned counsel for the CIDCO invited our attention to the averments made in paragraph 6 of the affidavit-in-reply dated 7th February, 2022 filed by the respondent nos. 1 to 4 stating that pursuant to BR No. 9633, it was decided to allot the plots under the scheme of 12.5% to the allottees by way of computerized lottery system. As such pursuant to the entitlement of petitioners, they will be allotted the NA plots in the area which is earmarked for such allotments. It is also the case of CIDCO that the petitioners had admittedly carried out unauthorized construction on the plot in question which cannot be regularized under the policy of CIDCO. The petitioners have not challenged the said policy.
28. During the course of argument, the learned counsel for the petitioners strongly placed reliance on a copy of the office note dated 2nd March, 2020 annexed at page 142 of the affidavit-in-rejoinder filed by the petitioners and submits that the said note would clearly show a site survey Panchnama called from the concerned Officials and that the proposal to allot permanent alternate accommodation under 12.5% scheme was in progress. Mr. Gangal, learned counsel for the CIDCO KVM 17/19 WPST 3113 OF 2022.doc could not dispute the contents of the said note annexed at page 142 of the affidavit-in-rejoinder, being internal note prepared by a staff member of CIDCO on 2nd March, 2020.
29. The learned counsel for the petitioner could not demonstrate before this Court that the structures constructed on the land in question are authorized structures. It is the case of the petitioners themselves that the construction made by the petitioner can be regularized pursuant to the Board Resolution no. 9949 as it allegedly complies and fulfilled the criteria laid down in the said board resolution. The petitioners could not demonstrate that the impugned structures fall within 200 meters of Gaothan boundary or not affected by reservation.
30. In view of the fact that the application dated 8 th December, 2021 made by the petitioners for allotment of developed plot under 12.5% scheme is pending before CIDCO, we do not propose to record any finding in this petition about the alleged entitlement of the petitioners for alternate plot of land under 12.5% scheme as claimed or otherwise. The fact remains that the structures in question are unauthorized. The CIDCO requires the said plot for public purpose i.e. Navi Mumbai KVM 18/19 WPST 3113 OF 2022.doc Project. The petitioners cannot be allowed to stall the said public project by refusing to vacate the premises in their possession on the ground that their application for allotment of alternate land under 12.5% scheme. The said application can be decided on its own merits.
31. We accordingly pass the following order :-
(a) The petitioners are directed to handover vacant and peaceful possession of the land after demolishing the structures constructed by them on the land in question to the respondent no.1 within one week from today, without fail. If the petitioners or any other occupants who are occupying the structures in question fail to handover vacant and peaceful possession to the respondent no.1 within one week from today, the CIDCO would be at liberty to take forcible possession and if necessary with assistance of Police and to demolish the structures.
(b) The application dated 8th December, 2021 made by the petitioners for allotment of developed plot under 12.5% scheme shall be decided by the respondent no.1 within eight weeks from today. If the application made by the petitioners is decided in their favour, the CIDCO to make an allotment of the plot under the said scheme within four weeks from the date of passing such order. If the said KVM 19/19 WPST 3113 OF 2022.doc order is adverse against the petitioners, the petitioners would be at liberty to file appropriate proceedings.
(c) Writ Petition is dismissed with aforesaid clarifications.
There shall be no order as to costs.
(d) Parties to act on an authenticated copy of this order.
[S. M. MODAK, J.] [R. D. DHANUKA, J.]