(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Civil Application No. 7363 of 2009 (In Writ Petition No. 1935 of 2004) M/s. Baswant Builders & Developers Pvt. Ltd. (Through its Directors : Shri Bhimrao s/o. Baswant Patil, Age : 48 years, Occupation : Business, R/o. 119, Shashtri Nagar, Aurangabad) Off. Add. : 115-116, Apna Bazar, SFS Complex, Jalna Road, Aurangabad. .. Applicant. versus 1. City and Industrial Development Corporation of Maharashtra Limited, New Aurangabad (Through its Managing Director, CIDCO Bhavan, Belapur, New Mumbai). 2. The Chief Administrator, CIDCO Limited, Udyog Bhavan, New Aurangabad. 3. The Administrator, CIDCO Limited, Udyog Bhavan, New Aurangabad. 4. The Senior Planner (New Towns), CIDCO Limited, Udyog Bhavan, New Aurangabad. (2) 5. Municipal Corporation (Through its Commissioner), Aurangabad. .. Respondents. .......................... Mr. S.B. Talekar, Advocate, for the applicant. Mr. A.S. Bajaj, Advocate, for respondent nos.1 to 4. Mr. A.M. Karad, Advocate, for respondent no.5. .......................... CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 27TH AUGUST 2009. COURT'S ORDER (Per B.R. Gavai, J.) : 1. Leave to add the Municipal Corporation, Aurangabad, as party respondent. Mr. A.M. Karad, learned Counsel, accepts notice on behalf of the added respondent. 2. By way of present application, the applicant is seeking directions to the respondents to grant permission to amalgamate Plot Nos. 428 to 435, Sector N-1, village Masnadpur, Survey No. 14-5, CIDCO, New Towns, Aurangabad. 3. It is the contention of the applicant, that the applicant has (3) purchased Plot Nos. 428 to 435 in Sector N-1 of CIDCO, in the auction proceedings by entering into a tripartite agreement to which respondent, CIDCO, is also a party. It is the contention of the applicant, that the applicant has submitted a proposal to the respondent, CIDCO, for grant of "no objection" to construct 10 row houses and 8 flats by amalgamating aforesaid eight plots. It is the contention of the applicant, that without "no objection" of the CIDCO, it cannot apply to the Municipal Corporation for seeking permission for building construction. It has been stated, that the authorities of CIDCO have informed the applicant that unless this court grants permission for amalgamation, it is not in a position to grant "no objection". 4. Mr. S.B. Talekar, learned Counsel appearing for the applicant, relies on the judgment and order passed by this court, in Writ Petition No. 2464/2007 and companion petitions, dated 29th June 2007. It is the contention of the learned Counsel for the applicant, that in similar facts, this court had allowed the petition by directing the petitioners to approach the respondent, CIDCO, for grant of "no objection" certificate. It is further submitted that this court has also directed the CIDCO to consider the said application for "no objection" certificate. 5. Mr. A.S. Bajaj, learned Counsel appearing for respondent nos.1 to 4, CIDCO, vehemently opposes the application. He submits that in view of the judgment and order passed by this court, in Writ Petition No. 2338/1999, dated 10th November 2000, which is affirmed by the Apex Court in the case of Padma Vs. Hiralal Motilal Desarda and others ((2002) 7 Supreme Court Cases 564), and the orders passed by (4) the Division Bench of this court in Civil Application No. 7360/2002 (In Writ Petition No. 2338/1999), the amalgamation of plots is not permissible unless it is permitted by this court. 6. We have considered the judgment and order passed by the Division Bench of this court, in Writ Petition No. 2338/1999, which is affirmed substantially, by the Apex Court in the judgment cited supra. From the perusal of the judgment, it would appear that this court had set aside allotment of land from Survey No. 70, 23 and 24, on the ground that the development plan was not yet approved by the State Government under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (For short, hereinafter referred to as "the MRTP Act"). This court has further held that it is not permissible for CIDCO to allot bulk plots for an area admeasuring more than one acre. It has further been observed that it is not poermissible for CIDCO to sell plots by public auction and the CIDCO is required to sell residential plots only on a fixed price and, that too, by adopting principle of "No profit no loss". 7. The judgment of the Division Bench of this court, in Writ Petition No. 2338/1999, has been substantially approved by the Apex Court with respect to certain minor variations. 8. We are, therefore, not in a position to notice anything in the aforesaid two judgments which restricts the power of CIDCO, for considering the proposal for amalgamation. The reliance placed by Mr. Bajaj, learned Counsel appearing for respondent nos.1 to 4, on paragraph 5 of the order of the Division Bench, dated 13th April 2004, in Civil Application No. 7360/2002 (in Writ Petition No. 2338/1999), in our view, (5) would also be not applicable to the facts of the present case. In para 5 of the said order, the Division Bench has observed thus : " We also make it clear, that in respect of these 214 plots, no request for alienation in any form or amalgamation shall be entertained by the CIDCO, without the leave of this court. " 9. It thus appears that the only difficulty which the CIDCO is faced, in not entertaining the application for amalgamation, is the order passed by this court, dated 13th April 2004. Though Mr. Talekar, learned Counsel for the applicants, disputes that the plots in question are not in the list of those 214 plots, we are not inclined to go into that aspect of the matter. 10. Undisputedly, now the Corporation is the planning authority for the entire area falling with the jurisdiction of Aurangabad Municipal Corporation. However, since the area in question is developed by CIDCO, "no objection" certificate is required to bhe issued by the CIDCO prior to the proposal for amalgamation/division is considered by the planning authority i.e. Aurangabad Municipal Corporation. It is settled law, that when an authority is bestowed with discretionary powers, the said discretion is to be exercised by the said authority alone, in accordance with law. We do not possess the expertise to consider the proposal made by the applicant, as to whether it is permissible within the parameters laid down by the MRTP Act or Development Control Rules framed thereunder. 11. We, therefore, partly allow the Civil Application with a (6) direction to the respondent CIDCO to consider the application filed by the applicant petitioner, for grant of "no objection" certificate for amalgamation of the plots, within a period of six weeks from today. In the event, such "no objection" certificate is granted, the applicant shall apply to the Municipal Corporation, Aurangabad, for amalgamation of plots and grant of necessary permission for building construction. The respondent nos.1 to 4, CIDCO, and the respondent no.5, Municipal Corporation, shall consider the proposal made by the applicant, for amalgamation of plots and permission for building construction, respectively, in accordance with the MRTP Act, the Development Control Rules framed thereunder and the Bombay Provincial Municipal Corporations Act, 1949. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/ca7363