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2013 Supreme(Bom) 551
In the High Court of Bombay at Aurangabad
R.M. BORDE & T.V. NALAWADE, JJ.
Suresh s/o Devikisan Oza
Versus
The State of Maharashtra, through its Secretary, Urban Development Department & Others
Writ Petition No.921 of 2012
Decided on : 07-03-2013
For the Petitioner:R.N. Dhorde, Senior Counsel i/by V.R. Dhorde, Advocate.
For the Respondents:R1 to R3, Mrs. A.V. Gondhalekar, A.G.P., R4, V.S. Bedre, R5, V.D. Hon, R6, K.B. Autade, R7, V.D. Sapkal, Advocates.
Headnote:Maharashtra Regional and Township Planning Act, 1966 - Section 86 - Deletion of name.
Where petitioner received plot as per will deed of his father but said plot encroached by State Government therefore order of Arbitrator allotting alternate plot to petitioner is without jurisdiction and thus deletion of name regarding allotted plot justified. - So far as prescribing reservation in respect of any property is concerned, procedure has been prescribed under the MRTP Act and it is beyond purview of exercise of jurisdiction by the Arbitrator to provide for reservation in respect of any property under the town planning scheme. It is also an error on the part of the Arbitrator to consider the objection raised by the petitioner concerning final plot No. 5 since it was not part of Shrirampur draft town planning scheme No. 1 (variation). The initial order passed by the Arbitrator on 1.5.2001 is without jurisdiction and the illegality occurred has been rightly corrected.
It is also to be taken note of that any decision of the Arbitrator, during finalisation of the scheme, is always subject to the final sanction by the State Government under Section 86 of the Act. The State Government is empowered to sanction final scheme with such modifications, as may, in its opinion, be necessary for the purposes of correcting, error, irregularity or infirmity in the scheme.
The argument advanced by the petitioner, that the decision of the Arbitrator dated 1.5.2001, is final, is not acceptable in view of Section 86 of the Maharashtra Regional Town Planning Act, 1966. It is to be noted that town planning scheme No. 1 for Shrirampur town was finalised in 1975 and plot No. 5, which the petitioner claims to have been allotted in his favour, was part of the said scheme. It is also to be taken note of that the record placed also does not indicate that plot No. 5 was allotted in favour of petitioner. Even if assuming that petitioner has some interest in part of the area out of final plot No. 5, the scheme, in that regard, has attained finality in 1975 with the final sanction of the Government under Section 86 of the Maharashtra Regional & Town Planning Act. The said plot i.e. plot No. 5 was not part of the variation of the scheme as per the draft published on 28.1.1985. It was not open for the Arbitrator to pass any order concerning final plot No. 5 and order passed by the Arbitrator is without jurisdiction.
It is also to be noted that town planning scheme for Shrirampur (first variation) has been sanctioned by the State Government under Section 86(1)of the Act on 22.9.1999 and contents of the said scheme do not disclose any interest of the petitioner in respect of final plot No. 746.
R.M. Borde, J.
1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2. The petitioner is requesting for issuance of a declaration that deletion of his name from the record of town planning scheme no.1 in respect of final plot no.746/2, situate at Shrirampur, while finalising town planning scheme no.1, is illegal and arbitrary. Petitioner is also seeking a direction against Respondent Nos.1 to 4 to hand over vacant possession of final plot no.746/2, admeasuring 340 square meters to the petitioner in view of the order passed on 01.05.2011 by Respondent No.3 – the Arbitrator for Town Planning Scheme No.1, Shrirampur. A direction is also sought for inclusion of name of petitioner in the final town planning scheme no.1 in respect of final plot no.746/2. A request is also made for issuance of writ of prohibition against Respondent Nos.1 to 4 from taking any steps for alienating or altering or granting permission to construct in respect of final plot no.746/2, admeasuring 340 square meters, which the petitioner claims to have been allotted in his favour.
3. According to the petitioner, his father purchased CTS No.1567, admeasuring 6 ares for consideration of Rs.3000/- on 19.04.1973. In the year 1975, town planning scheme no.1 was sanctioned by Shrirampur Municipal Council and CTS No.1567 was renumbered as final plot no.5 and was allotted to the father of petitioner. According to the petitioner, final plot, which has been allotted in the name of his father, was encroached upon and there were certain illegal developments on the plot. The first revised town planning scheme is published in the Official Gazette in1985. In the meanwhile, father of the petitioner died in 1998 and after his demise, in view of the will deed executed by father of the petitioner, petitioner became entitled to claim final plot no.5.
4. The petitioner tendered an objection with the Arbitrator stating that final plot no.5 allotted to him has been encroached upon and as such, requested for allotment of alternate plot. The petitioner claims that a notice was issued by the Arbitrator to Respondent No.5 – original owner of final plot no.746 in respect of modification on 14.03.2000. Respondent No.5 did not remain present and did not object to the claim raised by the petitioner. As such, the Arbitrator passed an order allotting alternate plot no.746/2, admeasuring 340 square meters, out of final plot no.746 allotted to the Respondent No.5, on 01.05.2001.
5. Respondent No.6 is a Contractor. He entered into an agreement for purchase of final plot no.746. In pursuance to the public notice issued by Respondent No.6, declaring his intention to purchase said plot, petitioner raised an objection contending that he has interest in plot no.746/2. Respondent No.6, however, purchased the property on 29.06.2010. Respondent No.6 was permitted to develop the property subject to submission of his undertaking, that he will not raise construction over final plot no. 746/2 and also will not utilise F.S.I. admissible for the said plot.
6. The final town planning scheme was kept open for inspection of public in the month of September 2011. Petitioner inspected final town planning scheme and found that his name does not find place in the said scheme showing allotment of final plot no.746/2, in view of order dated 01.05.2001. As such, he has presented instant writ petition claiming the reliefs as narrated above.
7. Respondent Nos.1 to 3 and 7 have presented affidavits-in-reply wherein it has been stated that Shrirampur Town Planning Scheme No.1 (final) has been sanctioned under Section 86(1) of the Maharashtra Regional & Town Planning Act, 1966, by the Government on 12.03.1975 and same came into force with effect from 01.06.1975. As per the said scheme, final plot no.746 has been allotted in favour of K.J.Somaiyya and Nandlal Lalchand Navalkha in lieu of original plot no.345/20 (CTS Nos.228 to 261) (part). It
