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2019 Supreme(Bom) 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, Sandeep K. Shinde, JJ.
Shree Sai Reality Through Partner Sandeep Dindyal Aagarval - Appellant
Versus
State Of Maharashtra - Respondent
Writ Petition No. 7485 of 2019
Decided On : 15-07-2019
P.K. Dhakepalkar, Advocate, A.P. Kulkarni, Advocate, N.K. Rajpurohit, Advocate, Rohit Sakhdeo, Advocate, Mihir Desai, Advocate, P.R. Yadav, Advocate, Rupali Nikam, Advocate
The planning authority cannot adjudicate on private boundary disputes, as they fall under the jurisdiction of the Civil Court.
Headnote:
Boundary Dispute - Planning Authority Jurisdiction - Maharashtra Municipal Corporation Act, 1966, Real Estate (Regulation & Development) Act, 2016 - Section 51(1) of the Maharashtra Regional and Town Planning Act, 1966 - [Section 51(1), Section 253, Section 254, Real Estate (Regulation & Development) Act, 2016]
Fact of the Case:
The petitioner, a partnership firm, sought to change the use of its land for residential purposes and obtained necessary permissions. However, a boundary dispute arose with adjoining landowners, leading to a stop work order by the Corporation and the Superintendent of Land Records.
Finding of the Court:
The Corporation exceeded its jurisdiction by taking cognizance of the boundary dispute, and the planning authority was not justified in restraining the petitioners from continuing construction until the boundary was fixed and settled by the Revenue Authorities.
Issues: 1. Whether the Corporation had jurisdiction to take cognizance of the alleged boundary dispute. 2. Whether the Corporation was justified in restraining the petitioners from continuing construction until the boundary was fixed and settled by the Revenue Authorities.
Ratio Decidendi: The planning authority cannot enter into private disputes, especially regarding boundaries, which fall under the jurisdiction of the Civil Court. The Corporation's actions were not in accordance with the Maharashtra Municipal Corporation Act and the Real Estate (Regulation & Development) Act, 2016.
Final Decision: The stop work order of the Corporation dated 24th January 2019 was set aside, and the petition was partly allowed and disposed of.
JUDGMENT
Sandeep K. Shinde, J. - Rule. Respondents waive service. By consent, rule made returnable forthwith.
2. The petitioner is impugning "stop work order" dated 24.01.2019 passed by the Commissioner Pimpri-Chinchwad Municipal Corporation (''Corporation'', for short) and order dated 24.01.2019 passed by the District Superintendent of Land Records (''DSLR'', for short) in Appeal No. 4089 of 2018.
3. Petitioner no. 1 is a partnership firm carrying on business as builder and developer through its partners, petitioners no. 2 and 3. Petitioner no. 1 M/s. Shree Sai Reality owns land CTS/ Survey/final Plot No. 11/3/1 at Kivale, Haveli, Pune admeasuring 72R. Petitioners aver that since this land was falling in agricultural zone, they sought for change of its use and Competent Authority permitted it. They further aver that this land was measured on 14.09.2016 and there upon office of Deputy Superintendent of Land Records, Haveli, Pune drew the maps bearing MR Nos. 19309/16, 19361/16 and 19337/16. Respondents no. 7, 8 and 9 own land Survey No. 11/2-B, which is adjoining to petitioners'' land. On 15.09.2017, boundaries of petitioners'' land were fixed with the consent of respondents no. 7 & 9.
4. One portion of the petitioners'' land was affected by D.P. Road to the extent of 1,992 sq.mtrs. The Competent Authority under the MLRC Code, upon considering the title documents as well as measurement maps vide order dated 18.06.2016 granted permission to use the balance land admeasuring 3657.54 square meters for residential use. The Municipal Corporation of Pimpri-Chinchwad after verifying the title documents, measurement plans, granted development permission and issued Commencement Certificate on 16.12.2017 to construct the buildings on their land.
5. It is petitioners'' case that construction of five buildings is in progress and around 50% or more has already been completed before order of stop work was issued. It is petitioners'' case that proposed construction project is subject to Real Estate (Regulation & Development) Act, 2016 ["RERA" for short] and has executed about 33 agreements of sale with flat purchasers.
6. The petitioners averred in para no. 11 of the petition that respondents no. 7, 8 & 9 ("Yadav" for short) disputed measurement plans MR No. 10309/16, 19337/16 and 19361/16 on the basis of which, development permission was granted by the Corporation. It is further averred that, Yadav vide complaint dated 19.05.2018 alleged that the petitioners have encroached over their land Survey No. 11/2-B and obstructed their access thereto. Yadav thus raised boundary dispute, challenged the correctness of measurement plans and alleged obstruction to his rights to enjoy and possess the land Survey No. 11/2-B. A copy of complaint was also forwarded to the office of Superintendent of Land Records. Taking cognizance of the complaint, Superintendent of Land Records brought to the notice of the Corporation the alleged defect in the measurement plans on the basis of which, building permission was granted. The Pimpri Chinchwad Municipal Corporation upon receipt of the communication from the office of the Superintendent of Land Records informed the petitioner about the grievance raised by the respondents-Yadav and called upon the petitioner to submit an explanation, failing which, stop work notice would be issued. Petitioners thereupon submitted the explanation on 18.09.2018 and brought to the notice of the Corporation that boundaries of their land and that of Yadav were fixed and settled on 15.09.2017 and the map was drawn accordingly.
7. It appears that the respondents-Yadav filed an appeal before the Superintendent of Land Records and questioned correctness of maps bearing MR Nos. 10309/16, 19337/6 and 19361/16. Since the appeal was presented beyond the period of limitation, application for condonation of delay was filed. Pending appeal, the Superintendent of Land Records, Pune vide order dated 26.10.2018 stayed the, ''effect'' of maps bearing M
