Bombay High Court
Dpvg Ventures Llp Thr. Partners vs State Of Maha. Thr. Urban Development ... on 6 March, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:13397-DB 2-WP5977-23GR.DOC
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR CIVIL APPELLATE JURISDICTION
MOHITE
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2024.03.20
14:06:34 +0530
WRIT PETITION NO. 5977 OF 2023
DPVG Ventures LLP ... Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
WITH
WRIT PETITION NO. 6493 OF 2023
Lal Gebi Infra Pvt Ltd. ... Petitioner
Versus
State of Maharashtra & Ors. ...Respondents
_______________________
Mr. Aditya Udeshi a/w Mr. Rahul Sanghvi aw Mr Samarth Jaidev i/b
Sanjay Udeshi and Co. For Petitioner n WP/5977/2023
Mr. Rajiv Chavan, Sr. Adv a/w Ms. Priyanka Chavan for Petitioner in
WP/6493/2023
Mr. Ashutosh M. Kulkarni a/w Mr. Akshay Kulkarni for Respondent/
CIDCO in WP/5977/2023
Mr. G.S. Hegde, Sr. Adv. i/b Ms.P.M. Bhansali for Respondent/ CIDCO
in WP/6493/2023
Mr. Tejesh Dande a/w Mr. Bharat Gadhavi for Resp No.3/NMMC
Ms. P.J. Gavhane AGP for State
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 6th March, 2024
_______________________
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ORAL JUDGMENT: (PER G. S. KULKARNI, J.)
1. Rule. Rule made returnable forthwith. Respondents waive service. By consent of the parties, heard finally.
2. The Petitioners in both the Writ Petitions had participated in a tender issued by Respondent No.2, City Industrial & Development Corporation of Maharashtra Limited (CIDCO), and were successful allottees of the tendered plots of land. CIDCO issued allotment letters dated 16 th January 2023 in favour of Petitioners.
3. The Petitioners are before the Court seeking diverse reliefs, inasmuch as, the Petitioners apprehend that the plots, as allotted to them by the CIDCO for the purpose of development cannot be achieved and/or these plots would remain mere allotment on paper without any development potential, in view of the proposed reservation of these plots at the hands of Navi Mumbai Municipal Corporation (NMMC) in the draft development plan prepared by it for the City of Navi Mumbai. The Petitioners contend that they had bonafide participated in the tender issued by CIDCO, accepting the representations which were made in the brochure advertising the said plots for allotment by depositing valuable consideration towards Earnest Money Deposit and thereafter, large amounts towards lease premium (price) of the plots, as the allotment letters issued to the Petitioners would indicate. Subsequent to this, the Petitioners being confronted with a situation that they would not be in a position to develop the plots on account of the proposed reservation by the Planning Authority, the petitioners were required to file the present writ petitions praying for the reliefs, which are quite similar in both the Petitions. To avoid prolix, we note the reliefs as prayed for in paragraphs 21 of the first Petition (Writ Petition No.5977 of 2023), which read thus:
Page 2 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 :::2-WP5977-23GR.DOC "(a) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ or direction directing the Respondents to ensure and confirm that:
i) There exists no reservation of any kind, upon the said Plot and;
ii) The said Plot is and will be developable by the Petitioner for Residential + Commercial use as set out in the tender issued by Respondent No.2;
That//this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ or direction directing Respondent No.1 to issue appropriate directions to Respondent No.3 including under Section 154 of the MRTP Act to the effect that-
i) The draft Development Plan as notified by Respondent No.3 under Section 26(1) of the MRTP Act be modified to the extent that the reservation imposed on the said Plot be removed;
ii) The NMMC delete all reservations in terms of directions issued by State Government on 14th June 2021 and 6th September 2021 proposed on the plots belonging to and/or auction by CIDCO;
iii) The said Plot is and will be developable for Residential and Commercial user and the application/s for development permissions will not be rejected on the ground that the said Plot is reserved;
(c) That this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ or direction to Respondent No.3 to process/consider the Petitioner's application for development permissions in respect of the development of the said Plot, in accordance with law on the basis that the said Plot has a Residential + Commercial user;
(d) That this Hon'ble Court be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction in the nature of certiorari calling for the records relating to the Communication dated 13th April 2023 issued by NMMC and after examining the validity, legality and propriety thereof the same be quashed and set aside;
(e) That without prejudice to and in the alternative to prayer clause (a) to (c) above, this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or other writ or direction directing Respondent No.2 to refund the earnest money deposit i.e. Rs.
6,30,56,306/- paid by the Petitioner in respect of the said Plot along with interest thereon @18% p.a. or at such rate as this Hon'ble Court deems fit from the date of deposit till refund/payment, without any deduction or adjustment or penalty;
(f) That pending the hearing and final disposal of this Writ Petition, this Hon'ble Court be pleased to direct Respondent No. 2 to not demand any payment towards the lease premium in terms of the Allotment Letter or levy of any penalty, interest or any coercive steps being taken including cancellation of the allotment.
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(g) That pending the hearing and final disposal of this Writ Petition, this Hon'ble Court be pleased to direct Respondent No. 2 to extend and/or suspend the obligation to make payment pursuant to the Schedule of Payment at Clause C of the Allotment Letter, without levying any interest or charges or penalty or late payment charges of any nature, whatsoever on the Petitioner;
(h) That pending the hearing and final disposal of this Writ Petition, this Hon'ble Court be pleased to restrain Respondent No. 2 from cancelling/terminating the allotment of the said Plot to the Petitioner; and terminating the Allotment Letter, and from taking any coercive or penal steps under the tender or under the allotment letter.
(i) That pending the hearing and final disposal of this Writ Petition, this Hon'ble Court be pleased to direct Respondent No. 2 to deposit in this Hon'ble Court, with the interest accrued thereon, at the rate of 18% per annum an amount of Rs. 6,30,56,306/- being the Earnest Money Deposit paid by the Petitioner for the said Plot with necessary directions that the said amount be invested and earn interest as this Hon'ble Court deems appropriate.
(j) That ad-interim reliefs in terms of prayer clauses (e) to (h) be granted;
(k) For costs;
(l) For such other and further reliefs as the nature and circumstances of the case may require.
4. The contention of the Petitioner is that the action of the Planning Authority, to provide reservation on the CIDCO land/plots which had remained undeveloped and which were the subject matter of allotment of CIDCO, was illegal, more particularly considering the judgement of the Division Bench of this Court [of which one of us (G. S. Kulkarni, J.) was a member] in PIL Petition No.22 of 2021 - Nishant Karsan Bhagat vs. The City and Industrial Development Corporation of Maharashtra Ltd. and other batch of Petitions. Learned counsel for the parties have drawn our attention to the observations of the Division Bench, relevant in the present context, whereby this Court has recognised that it would be within the authority of the CIDCO to make allotment of the undeveloped plots of land, which were retained by CIDCO, and on which the NMMC would not have any authority and jurisdiction to reserve such undeveloped CIDCO plots. It was thus, held that Page 4 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC CIDCO cannot be deprived of its rights to make allotment of such land / plots which remain to be CIDCO lands.
5. It is on such conspectus, on the earlier occasions we had heard learned counsel for the parties.
6. On 28th February 2024, on behalf of the Petitioners a letter dated 8 th February 2024 of the Under Secretary, Government of Maharashtra, Urban Development Department, addressed to the Commissioner, Navi Mumbai Municipal Corporation was placed on record. Such letter inter alia recorded that the planning authority (NMMC) should refrain from reservation of CIDCO lands. We had accordingly passed the following order:
"1. To enable the learned Advocate for the Petitioners so also the learned AGP for the State to place on record letter dated 8 th February, 2024 bearing no. टि पी बी -४३२१/३०/प्र .क् र .१००/२०२१/न टि -११ addressed by Mr. Amar Patil, Under Secretary, Urban Development Department to the Commissioner, Navi Mumbai Municipal Corporation in regard to refraining reservation of CIDCO lands by the Navi Mumbai Municipal Corporation, stand over to 6 th March, 2024 at 2.30 pm.
2. Let the affidavit be served on all the parties copy of which is handed over by the Advocate for the Petitioner in Writ Petition No.5977 of 2023."
7. In pursuance of the above order, on behalf of the Planning Authority, as also on behalf of CIDCO, affidavits are filed placing on record the said letter dated 8th February 2024 of the Under Secretary.
8. In regard to the Affidavit, as filed on behalf of the Navi Mumbai Municipal Corporation, of Shri Somnath Kekan, Additional Director Town Planning, NMMC, at the outset, we may observe that the NMMC has categorically stated that in the modified draft D.P. published under Section 28(4) of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act") and submitted under Section 30(1) of the MRTP Act to the State Government on 23rd February 2024, the NMMC has de-reserved the Page 5 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC reservation on the aforesaid plots vide Modification No.SM-23. The relevant extract of the NMMC's affidavit (which is similar in both the proceedings) is required to be noted which reads thus:
"1. I say that in the draft of D.P. published u/s. 26 (1) of MRTP Act on 10.08.2022 the plot bearing No. 9B, Sector 20, Sanpada, Navi Mumbai was reserved for "Fire station' (pt), 'Cattle Pond' (pt) and 'Skill Development (pt) and Training Centre'.
2. I further say that however in the modified draft D.P. published u/s. 28 (4) and submitted u/s. 30 (1) of MRTP Act dated 23.02.2024 the Navi Mumbai Municipal Corporation has de-reserved the said reservation on the aforesaid plot vide Modification No. SM - 23. Accordingly, the modified draft DP is submitted u/s. 30 (1) to the government for its final sanction. The copy of gazette notification dated 23.02.2024 containing list of modifications in Draft D.P. of Navi Mumbai is annexed hereto and marked as Exh. "A".
3. I further say that as such after final sanction of the D.P., if the Petitioner files application for building permissions, the same would be processed by Navi Mumbai Municipal Corporation as per provisions of law."
9. It is hence, clear from the aforesaid statement as made in the affidavit that the NMMC would not insist that the plot in question would form part of the proposed development plan submitted to the State Government for its approval.
10. On behalf of CIDCO, affidavit of Mr.Gajendra Jangam, Marketing Manager (Plots and Commercial), is placed on record, which also refers to the said letter dated 8th February 2024, a copy of which was received by CIDCO. Such affidavit also states that by Government Notification dated 23 rd February 2024, a list of modifications / changes in the Draft Development Plan of Planning Authority, under section 28(4) of the MRTP Act are published. It further states that the plots subject matter of the petition were reserved for "Fire Station" in the Draft Development Plan published by the NMMC in August 2022. In paragraph 4 of the said affidavit it is stated that the use of the said plot is now modified for residential / commercial purpose. The relevant Page 6 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC contents of the additional affidavit in WP/5977/2023 and in WP/6493/2023 read thus:
Paragraph 2 and 4 of the additional affidavit in WP/5977/2023 "2. I say that vide a letter dated 08.02.2024 bearing No. TPB/4321/30/ Pra.Kra 100/ 2021/ Navi-11 addressed by Under Secretary, Urban Development Department to the Commissioner, Navi Mumbai Municipal Corporation (NMMC), it was communicated that the request of CIDCO for not imposing reservations on the lands allotted by Public Tender was found to be proper and accordingly due consideration should be given tha NMMC should not show reservations in the Development Plan on the plots owned by CIDCO and disposed / allotted by Tender. The said letter is hereto annexed and marked as "Exhibit-A".\
4. I say that Plot no. 9B, Sector-20, Sanpada, which is the subject matter of the above Petition, was reserved for "Fire Station" in the Draft Development Plan published by Navi Mumbai Municipal Corporation (NMMC) in August 2022. The use of the said Plot is modified from "Fire Station" to "Residential" in the above Notification, hence the use of the said plot is now changed to "Residential".
Paragraph 4 of the additional affidavit in WP/6493/2023 "4. I say that Plot no. 26, Sector-3, Ghansoli, which is the subject matter of the above Petition, was reserved for "Parking" in the Draft Development Plan published by Navi Mumbai Municipal Corporation (NMMC) in August 2022. The use of the said Plot is modified from "Parking" to "Residential" in the above Notification, hence the use of the said plot is now changed to "Residential"."
11. We may observe that the State Government has already clarified its position as set out in the letter dated 8th February 2024 as considered by the NMMC in the aforesaid affidavit as also considered by the CIDCO. The contents of the said letter dated 8 th February 2024 are required to be noted which read thus:
(official translation) "GOVERNMENT OF MAHARASHTRA URBAN DEVELOPMENT DEPARTMENT 4th floor, Mantralaya, Madam Cama Road, Hutatma Rajguru Chowk, Mumbai 400032.
[email protected] Number : TPB-4321/30/M.No.100/2025/U.D.-11 Date : 08.02.2024.Page 7 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 :::
2-WP5977-23GR.DOC To, The Commissioner, Navi Mumbai Municipal Corporation.
Subject :- Regarding not to show the reservations on the plots of land located within the limits of the Navi Mumbai Municipal Corporation, sold by way of auction/allotted by the CIDCO.
Respected Sir, The Officers of CIDCO have made a request about the above-mentioned subject, from time to time, during the course of meetings and also by letters. Although the CIDCO has been appointed as New City Development Authority for Navi Mumbai area under the provisions of Section 113 of the Maharashtra Regional and Town Planning Act, 1966, the Government has established Navi Mumbai Municipal Corporation from the date 01.01.1992 for some developed Nodes from out the area of Navi Mumbai. However, while establishing the Corporation, the identity of CIDCO as the New City Development Authority has been maintained. Therefore, as regards the undeveloped area or the area where there is a scope for development, the Node Plan of such areas are prepared and the plots of land in the said areas are allotted by inviting tenders and by taking into consideration the highest bids. As a result thereof, the CIDCO receives revenue and with the help of this revenue, various infrastructure/projects are developed. The process of preparing development plan of the Navi Mumbai Municipal Corporation has been undertaken by the Navi Mumbai Municipal Corporation. The contention of CIDCO that the plots of land of the ownership of CIDCO are the part of the financial planning of CIDCO, is fair. The development plan of CIDCO depends on the income being received after disposing of its land and therefore, the stand of the CIDCO that if the income of the CIDCO is affected by proposing reservations in this manner on the plots of land from which income can be received, then, not only the works being carried out but also the infrastructure being developed in this area by CIDCO will be adversely affected, is required to be taken into consideration. Thus, it is expected to use the plots of land sold/allotted by CIDCO in the capacity of the New City Development Authority, as per the Sale/Allotment order issued by/Agreement entered into with CIDCO. CIDCO is an Undertaking of the Government of Maharashtra and as the CIDCO has published advertisement and invited Tenders, taking into consideration the stand of CIDCO that the concerned Lessees / Purchasers can make use of the plots of land sold/allotted by CIDCO / allotted by CIDCO by obtaining consideration therefor as per the agreement entered into with CIDCO, as per "Fait accompli" without depriving the purchasers-citizens from using the plots of land purchased by them from CIDCO by paying consideration therefor as per the rules and by complying with the conditions published by CIDCO, the request of CIDCO not to show reservation by the Municipal Corporation in the development scheme on the plots of land sold / allotted by CIDCO to third party, is appropriate to be taken into consideration. In view thereof, I am directed to inform you as under:
"The request of CIDCO not to show reservation in the development scheme on the plots of land owned by CIDCO, located within the limits of Navi Mumbai Municipal Corporation sold by following the tender process/allotted by CIDCO, is appropriate and in view thereof, the Navi Mumbai Municipal Corporation should consider not to propose reservation in the development scheme on such plots of land sold/allotted by CIDCO".
Yours faithfully, (Amar Patil) Under Secretary, Government of Maharashtra.
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1) Deputy Chairman and Chief Executive Officer, CIDCO, Navi Mumbai.
2) Select File (U.D.-11)."
12. On behalf of the petitioners reliance is placed on the decision of this Court in the case of Nishant Karsan Bhagat (Supra) in which this Court had examined the very issue as to whether the NMMC is exercise of its authority as a planning authority could reserve for public purpose, the land / plots of land belonging to CIDCO. The Division Bench, considering the provisions of Maharashtra Town Planning Authority Act, 1952 ("MRTP Act"), held that in the complexion of the respective authorities, the CIDCO as also the NMMC wielded under the MRTP Act, and the NMMC although was also declared as a Planning Authority it had no jurisdiction to impose reservation on such plots of land. The relevant extract of the judgment of the Division Bench is required to be noted which reads as under:
"55. The factual antecedents and the submissions as urged on behalf of the parties would lead us to determine the following questions:
(i) Whether the General Body resolution of the NMMC proposing to reserve CIDCO plots of land for public amenities, in the absence of publication of a Draft Development Plan as per the provisions of Section 26 of the MRTP Act would create an embargo of a reservation?
(ii) Whether passing of a resolution by the General Body of the NMMC proposing to reserve the plots/lands, can in any manner divest the rights of CIDCO to make allotment of the plots of land?
(iii) Whether the directions issued by the State Government under section 154 of the Act dated 14 June, 2021 and subsequent directions dated 6 September, 2021 are in any manner illegal contrary to the provisions of the MRTP Act?
75. It is thus clearly seen that in the notification dated 14 June, 2021, as issued under Section 154 of the MRTP Act, the State Government has stated that the Draft Development Plan under Section 26 of the MRTP Act for the CIDCO areas, included in the NMMC and Panvel Municipal Corporation areas was yet to be published by the concerned Corporations, hence, the reservations were not applicable to the plots as notified by CIDCO for public auction till issuance of the said notification. It is clarified that as a result the auction process which CIDCO had commenced would remain protected.
Page 9 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 :::2-WP5977-23GR.DOC As noted above a further clarificatory notification under section 154 of the MRTP Act dated 6 September, 2021 was issued by the State Government, wherein the State Government inter alia directed that although the work of CIDCO to develop the areas of Navi Mumbai was completed and the plots were developed, however, all the powers of CIDCO to lease lands as the owner of the lands shall remain intact. It was further clarified and directed that the reservations imposed by NMMC on the plots of CIDCO 'smaller than 500 sq. mtrs.' belonging to CIDCO should be maintained in the Draft Development Plan, as CIDCO will not get much financial benefits from such plots, as also plots 'excluding such smaller plots' having area of less than 500 sq. mtrs., no reservations shall be placed and considering such matter, the Draft Development Plan be published as per the provisions of Section 26(1) of the MRTP Act. Thus, by such clarificatory directives issued in exercise of Section 154 of the MRTP Act, the State Government has held that the plots having area more than 500 sq. mtrs. and belonging to CIDCO shall be kept out of the purview of any reservations in the Draft Development Plan to be published by the NMMC under section 26(1) of the MRTP Act.
76. On a cumulative reading of the different notifications as issued by the State Government under Section 154 of the MRTP Act and as discussed above, it is manifest that although the NMMC was constituted as a Municipal Corporation in exercise of the powers under section 3 of the NMMC Act, 1949, there was never an intention on the part of the State Government to divest CIDCO of any of its authority as a New Town Development Authority or a Development Authority within the meaning of Section 113(3A) read with Section 2(8) of the MRTP Act. Thus, CIDCO was within its power to develop the undeveloped lands even in the developed nodes, which stood vested in it and allowed the said lands by exercising its statutory powers as conferred under section 118 of the MRTP Act along with other ancillary powers being exercised under the New Bombay Disposal of Land Regulations, 1975 and Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008 for disposal of lands.
77. In these circumstances, it was not permissible for the NMMC to take any position to prevent CIDCO from exercising its statutory powers and duties as the New Town Development Authority to dispose of such lands by purporting to impose an embargo by foisting reservations on the plots of land being developed by CIDCO and now subjected to an allotment by public auction by virtue of the tender process as undertaken in the month of January, 2021 which already stands completed and the allottees, namely, the private respondents, are in the process of finalizing such allotments.
78. To our mind, it is quite clear that the roles of both CIDCO and the NMMC qua the Navi Mumbai area have been recognized by the State Government and completely within the parameters of the MRTP Act. Time and again by issuance of different notifications, the State Government has clarified the position that no conflict ought to be brought about in the functioning of both these bodies exercising their powers and functions as conferred on them under the MRTP Act. Significantly, the intention of the State Government Page 10 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC not only from its directives but also from the stand taken by the State Government in the reply affidavit appears to be quite clear, namely, to recognize the role of both these authorities which is quite compartmentalized. The State Government has categorically recognized that since the time CIDCO was constituted as the New Town Development Authority and till the constitution of the NMMC and for such period even after its constitution, CIDCO has discharged its functions as the Planning Authority by reserving lands for different public amenities and it is not the case as put up by the petitioners that the Navi Mumbai area was developed by CIDCO without being alive to the different public needs and purposes and in fact has allocated lands for large number of public purpose. Thus, the charge of the petitioners that the allotment in question in favour of the private respondents by CIDCO is only a revenue earning exercise, is totally untenable. Such revenue being earned by disposal of lands by CIDCO is also being utilized for the purpose of development of Navi Mumbai, which itself is a public purpose.
80. On a plain reading of Section 154, it is manifest that the provision overrides all other provisions of the MRTP Act or the rules and regulations made thereunder authorizing the State Government to exercise its powers inter alia for the efficient administration of the Act or in the larger public interest to issue from time to time such directions or instructions as may be necessary to the Regional Board, Planning Authority or Development Authority and it shall be the duty of such authorities to carry out such directions or instructions. In our clear opinion, the nature of the directions as contained in the notification dated 14 June, 2021 and 6 September, 2021 are directions certainly for the efficient administration of the MRTP Act and undoubtedly in larger public interest and binding on the NMMC as also CIDCO. Thus, there is no gainsaying that such directions which are intended to remove any internal conflict in the NMMC and CIDCO exercising their respective powers, functions and duties can in any manner be said to be illegal or beyond the powers conferred on the State Government under Section 154.
DIRECTIONS
1. The planning authorities while preparing development plan for area in their jurisdiction or amending them in respect of undeveloped portion abutting the hills upto 100 feet should be shown as No development/Open space Reservation.
2. In the event the 100 area abutting hills, has already been developed, in that area no permission be granted for additional FSI or TDR.
84. Thus, it would not be correct to assume that Section 23(1) notice as issued by the NMMC is a non sequitur. However, this would not alter the consequences as brought about from a cumulative reading of Section 26 and Section 43 of the MRTP Act in the facts of the present case, namely that Section 43 of the MRTP Act which imposes restrictions on development of land after the date on which a declaration of intention to prepare a Development Plan for any area is Page 11 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC published in the Official Gazette, would not become applicable. This for the reason that such declaration of intention to prepare a development plan itself was not notified by the NMMC in the Government Gazette when CIDCO had published its notice inviting public bids to auction the plots in question i.e. in January-February 2021. Thus, the petitioners would not be correct in their contention that Section 43 applies with full force in the present facts and merely because a Section 23(1) notice was published, on 14 December 2017. This would amount to reading into Section 43 which is not provided for, as Section 43 is specific, as it takes effect only when a declaration of intention to prepare a development plan is published in the Government Gazette.
86. As a sequel to this discussion the petitioners' contention that by virtue of Section 43 there was a restriction on CIDCO to deal with its plots/lands in question is wholly untenable, deserving of rejection.
However, we have already held that in so far as CIDCO lands are concerned, as rightly opined by the State Government, as provided under sub-section (1) of Section 26, the planning authority within a period of two years from the date of publishing a notice under Section 23(1), did not prepare a draft development plan and published a notice in the Official Gazette that a draft development plan has been prepared. Thus, in such a situation, there was no question of any restrictions on CIDCO to make allotment of its plots/lands in question. Even otherwise as held by us, there was no embargo or any restriction whatsoever on CIDCO to deal with such plots/lands and hold the auction of which the beneficiaries are private respondents. In the circumstances as discussed above, the NMMC, in law, neither could impose such reservation on CIDCO plots/lands as it was outside its power and authority to do so nor the planning provisions as contained in Section 23 read with Section 26(1) and Section 43 would permit the NMMC to do so.
90. As a sequel to the above discussion, with certitude we conclude that CIDCO has rightfully auctioned lands in question for the purpose of their development at the hands of the allottees, namely, the private respondents."
(emphasis supplied)
13. As a result of the above discussion, it is apparent that the State Government exercising its statutory power under Section 154 of the MRTP Act has consistently recognised CIDCO having an authority under the relevant provisions of the MRTP Act, and in its authority as the New Town Development Authority, to make allotment of the plots in question, which are ultimately intended to be developed by the allottees, i.e. the Petitioners in the present case and in accordance with law. Now the NMMC has also clarified its Page 12 of 13 ::: Uploaded on - 20/03/2024 ::: Downloaded on - 27/03/2024 00:27:05 ::: 2-WP5977-23GR.DOC position that it would not insist for reservation in respect of the plots/land in question qua the proposed development plan for Navi Mumbai. Thus, State Government having issued directives as contained in the Orders issued under Section 154 of the MRTP Act as also in the communication dated 8 th February 2024 issued by the Under Secretary, Government of Maharashtra, Urban Development Department, addressed to the Commissioner, NMMC, the same are already acted upon by the NMMC, as set out in the reply affidavit.
14. As a result of the above discussion, the Writ Petitions need to succeed. They are accordingly allowed in terms of the following Order:
a. The Plots in question in both the writ petitions shall be permitted to be developed by the Petitioners for residential / commercial use as per the terms and conditions of allotment as set out by the CIDCO, accepting the position taken by the NMMC that the proposed reservation on the plots in question stands deleted.
b. Consequently, the impugned communication dated 13th April 2023 shall stand quashed and set aside.
c. The plans for the proposed development to be submitted by the petitioners, be considered and be approved in accordance with law.
d. Rule is made absolute in the above terms.
e. No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
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