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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5786 OF 2021

1. Hoshang s/o Boman Nanabhoy Dordi, Age 80 years, Occu. Business, R/o Junabazar, Aurangabad, District Aurangabad ..PETITIONER VERSUS

1. The State of Maharashtra, Through : Urban Development Department, Mantralaya, Mumbai – 32

2. The Aurangabad Municipal Corporation, Aurangabad, Dist. Aurangabad ..RESPONDENTS Mr. A.S. Bajaj, Advocate for petitioner;

Smt. Vaishali N. Jadhav-Patil, A.G.P. for respondent no.1;

Mr. A.P. Bhandari, Advocate for respondent no.2 CORAM : RAVINDRA V. GHUGE AND S.G. MEHARE, JJ.

(Date of reserving the judgment : 05.10.2021 Date of pronouncing the judgment :.29.10.2021)

JUDGMENT (Per S.G. Mehare, J.)

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The petitioner has preferred this petition for directing respondent no.2, the Municipal Corporation, to issue the Reservation Credit Certificate (RCC for short) instead of Transferable Development Right (TDR for short).

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3. The brief facts of the case are that the father of the petitioner was the owner of survey no.9. Respondent no.2 was requiring it for Municipal Hall. Hence, he surrendered survey no. 9 to respondent no.2 in exchange for the land bearing CTS no. 3742 measuring 5766 sq. yard (plot in dispute for short) situated at Quile-ark, Aurangabad. His father possessed it from 1959. In 1971 respondent no.2 had issued a certificate of ownership of the plot in dispute. The permission was granted to construct the plot in dispute and renewed also. A part of the plot in dispute was acquired by respondent no.2 for road widening. His father had received its compensation. They are paying the various taxes to respondent no. 2. All these facts unequivocally confirm the title of the petitioner over the plot in dispute. After his father, the petitioner became the exclusive owner of the plot in dispute. 4. In 1985, respondent no.2 had served a notice to the petitioner to remove encroachment on the plot in dispute. He had challenged it in a Civil Suit. That suit was dismissed. However, the learned District Judge allowed the appeal and held that the petitioner was not the encroacher. Respondent no.2 had impugned the Judgment and decree of the District Court in writ petition no. 1096/ 1986 before the High Court. By order dated

2.12.1986. the writ petition was dismissed.

5. Out of the plot in dispute, an area measuring 2764.99 sq. meters was reserved for a garden in the Development Plan prepared by respondent no.2. He surrendered the said piece of land to respondent no.2 (3)

vide possession receipt dated 6.12.2012. Accordingly, he applied for TDR on March 23, 2011, to respondent no. 2. Respondent no.2 had invited the objections on his TDR claim. No objections were received. Hence he submitted a registered relinquishment deed dated 14.09.2012. He made various applications to respondent no.2 to issue him TDR certificate but in vain. The petitioner has pleaded explicitly that for the last 11 years, respondent no.2 has not issued the TDR certificate. Hence he is now entitled to get Reservation Credit Certificate (RCC for short). Accordingly, he has given an application to respondent no. 2 on 18.12.2020

6. The contesting respondent no.2, in its affidavit in reply, submits that there were various litigations about the plot in dispute. When the proclamation was issued in Aurangabad Division Gazette by the Land Acquisition Officer, it revealed that one Anwarmullah was the owner of the survey no.9. Therefore, there was no question of exchange of the plots. The suit for specific performance of the contract and return of survey no. 9 filed by the father of the petitioner was dismissed. The issue of his title over survey no. 9 was set at rest by judicial adjudication. It has no dispute about another suit filed by the petitioner bearing M.C.A. no. 124/ 1985 in District Court and dismissal of Writ Petition No. 1096/1986.

7. It has also brought the facts in light th