Back
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.B. CHAUDHARI
Shri Manish s/o Dinesh Soni & Others
Versus
State of Maharashtra & Others
WRIT PETITION Nos.131 OF 2011, 1766 OF 2011 & 1767 OF 2011
Decided On : 19-03-2012
GUNTHEWARI DEVELOPMENT - REGULARIZATION - TRANSFER OF DEVELOPMENT RIGHTS (TDR) - LOADING ON REGULARIZED PLOTS - PERMISSIBILITY - MAHARASHTRA GUNTHEWARI DEVELOPMENTS (REGULARIZATION, UPGRADATION AND CONTROL) ACT, 2001 - DEVELOPMENT CONTROL REGULATIONS, 2000 - APPLICABILITY - INTERPRETATION - CONSTITUTION OF INDIA, ARTICLE 300A - RIGHT TO PROPERTY.
Fact of the Case:
The petitioners, builders, purchased plots that were regularized under the Maharashtra Gunthewari Developments (Regularization, Upgradation and Control) Act, 2001 (the 2001 Act). They submitted revised building plans to the planning authority, seeking permission to load Transferable Development Rights (TDR) on those plots to support construction in excess of the permissible Floor Space Index (FSI). The planning authority rejected the revised plans on the grounds that (1) the existing construction on the ground floor did not tally with the construction shown in the sanctioned plan and (2) there was no decision by the planning authority's Chairman regarding the permissibility of using TDR on Gunthewari regularized plots. The petitioners challenged the rejection of their revised building plans, arguing that the 2001 Act and the Development Control Regulations, 2000 (DCR_2000) permit the use of TDR on regularized Gunthewari plots and that their right to property under Article 300A of the Constitution of India was violated.
Finding of the Court:
The Court held that the petitioners were not entitled to load TDR on their regularized Gunthewari plots. It found that the 2001 Act was a special enactment that provided a one-time relaxation from the provisions of the Maharashtra Regional and Town Planning Act, 1966 (the MRTP Act) to regularize certain illegal developments, including Gunthewari developments. The Court held that the relaxation offered by the 2001 Act was limited to protecting the regularized Gunthewari developments and upgrading them to the minimum extent necessary. It further held that the MRTP Act was the master law governing development and construction in the State of Maharashtra and that the Gunthewari Act was a limited dilution of the MRTP Act. The Court also found that the petitioners were not the original beneficiaries of the Gunthewari regularization and that they had purchased the plots after regularization for commercial exploitation. It held that the petitioners' mindset showed an impression that legal status was available for sale in the market, which was contrary to the purpose of the Gunthewari Act.
Issues: 1. Whether the petitioners were entitled to load TDR on their regularized Gunthewari plots? 2. Whether the rejection of the petitioners' revised building plans violated their right to property under Article 300A of the Constitution of India?
Ratio Decidendi: 1. The 2001 Act was a special enactment that provided a one-time relaxation from the provisions of the MRTP Act to regularize certain illegal developments, including Gunthewari developments. 2. The relaxation offered by the 2001 Act was limited to protecting the regularized Gunthewari developments and upgrading them to the minimum extent necessary. 3. The MRTP Act was the master law governing development and construction in the State of Maharashtra and that the Gunthewari Act was a limited dilution of the MRTP Act. 4. The petitioners were not the original beneficiaries of the Gunthewari regularization and that they had purchased the plots after regularization for commercial exploitation.
Final Decision: The Court dismissed the petitions, holding that the petitioners were not entitled to load TDR on their regularized Gunthewari plots and that the rejection of their revised building plans did not violate their right to property under Article 300A of the Constitution of India.
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. B “(a) Hold that there is no prohibition, bar or restriction either in The Maharashtra Gunthewari Developments (Regularization, Upgradation 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, Upgradation 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, Upgradation 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 Annexure5), 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.
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 exparte 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 Plot nos. 55 and 56 [Writ Petition No.1767/2011]. These plots are regularized under the provisions of Maharashtra Gunthewari Development (Regularization, Upgradation 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, admeasuring 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 Sale deed dated 30.01
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
