-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4899 OF 1995 WRIT PETITION NO.4899 OF 1995 WRIT PETITION NO.4899 OF 1995 1. Mr.Subhash Vithal Khaire, 2. Mr.Madan Madhav Gagawale, 3. Mr.Mukund Ramakant Pandit, 4. Mr.Rajendra Vishnu Jagtap, 5. Mr.Mohan Sopanrao Gaikwad, .. Petitioners Petitioners Petitioners. Vs 1. The State of Government of Maharashtra, 2. Minister of Urban Development, Mantralaya, Bombay. 3. Mr.Sushilkumar Shinde, the then Minister of Urban Development, Mantralaya, Bombay ... 4. The Minister, Housing and Special Assistance, Mantralaya, Bombay. 5. The Competent Authority under the Urban Land Ceiling & Regulation Act, 1976 6. Special Land Acquisition Officer No.14, Pune. 7. Mr Prakash Auti, Advocate "Rama Nivas", Saevatra Society, Paud Road, Near Jai Bhawani Mandir, Kothrud, Pune. 8. M/s A.V.Bhat & Co. through its Partner Mrs Aruna Bhat, 1340, Sadashiv Peth -2- Pune. 9. M/s Auti Brothers, through its partner Mr Prakash Auti Rahul Chamber, Opp: Gogate Petrol Pump, Karve Road, Pune. 10.M/s Hindustan Builders, a partnership firm through its partner Mr Prakash Auti... 11.Pune Telephone, through its General Manager, Telephone Bhavan, Bajirao Rd Pune. 12.Smt. Indumati Sopanrao Landge, Poornima, 759/75/2 Deccan Gymkhana, Pune. 13.Shri Shirish Sopanrao Landge, Anmay Apartment, Ideal Colony, Kothrud, Pune. 14.Shri Girish Sopanrao Landge, Poornima, 759/752, Deeccan Gymkhana, Pune. 15.Mr C.T.Chopda, Padamadal, 587/27, Shukrawar Peth Tilak Road, Pune. 15A.Kalpanamati Griha Rachana Sanstha Maryadit, through Mr Prakash Puti, Rahul Chambers Karve Road, Pune. 16.Union of India. .. Respondents. Respondents. Respondents. Mrs Kiran Bhagalia with Ms Asha Bhombwani for the petitioners. Mr P.M.Patil, AGP for respondent nos 1, 2 & 4 to 6. Mrs V.S.Dighe, for respondent no.3. (Absent) Mr Y.S.Jahagirdar, Senior Counsel with Shri V.G.Mujumdar, for respondent nos 7, 9 & 10. Mr S.G.Anney, Senior Counsel with Mr S.V.Pitre, for -3- respondent no.8. Mr A.Y.Sakhare, Senior Counsel with Shri Sarang Arandhye and Mr M.S.Khadilkar, for respondent nos 12 to 14. Mr G.S.Godbole for respondent no.15-A. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : APRIL 24th & 25th, 2006. DATE : APRIL 24th & 25th, 2006. DATE : APRIL 24th & 25th, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : (PER B.H.MARLAPALLE, J.) (PER B.H.MARLAPALLE, J.) (PER B.H.MARLAPALLE, J.) 1. The petitioners, who are the residents of Pune City, have moved this public interest petition under Article 226 of the Constitution and challenged the order dated 6.2.1991, which is stated to be a compromise order in terms of the Minutes of the meeting dated 6.2.2001 and the order dated 24.4.1991 passed by the Minister for Urban Development, Government of Maharashtra. The petitioners have also challenged the subsequent orders/directions flowing from the order dated 24.4.1991, namely, the order dated 20.12.1994 passed by the Additional Collector and Competent Authority and the order dated 15.6.1995 passed by the Special Land Acquisition Officer No.14. In short, the petitioners claim that the land in Final Plot nos. 477 and 477A of Parvati under the Municipal Corporation area of Pune city which was entirely reserved for the Pune Telephones (Department of Telecommunication-Government of India) in the Development Plan sanctioned by the State Government, and admeasuring about 3 acres and 3 guntha -4- (14,000 sq.meters) was illegally released to the extent of two acres (8000 sq.meters) by handing over only 6000 sq.meters of the plot area to the Pune Telephones and the remaining land was handed over to the Co-operative Housing Societies who had no title legally enforceable as the owners of the plot of land located in Final Plot no.477A. As per the petitioners, pursuant to the order passed by the Minister on 24.4.1991, the Collector, Pune was called upon to take fresh steps for acquisition of 6000 sq.meters of land for Pune Telephones and the Land Acquisition Officer passed the Award on 8.11.1995. Under the said Award, the compensation amount which ought to have come to the State Government, was directed to be or in fact paid by the Land Acquisition Officer to respondent nos.7,8.9, 12 to 14 and 15A and this amount is required to be recovered from the said respondents as they had no title to claim the said land either as owners, tenants or the persons interested. In addition, it is the case of the petitioners that the land in final plot no.477A was declared surplus under the Urban Land (Ceiling and Regulation) Act, 1976 (for short hereinafter referred to as "the ULC Act") and it could not have been released by the Minister for Urban Development by the impugned order dated 24.4.1991 or any orders flowing from the said direction, more so when there was no appeal preferred under section 33 of the said Act by the land owners, i.e. -5- respondent nos 1 to 14 or respondent no.15A at any time. FACTS FACTS FACTS 2. The land in Final Plot no.477 admeasured about 3850 sq.meters, whereas the land in final plot no.477A admeasured about 3 Acres and 3 Gunthas, i.e. 12000 sq.meters. The land in Final Plot no.477 was owned by one Patwardhan family and in terms of the special execution decree no.150/1981 filed in Civil Suit No.185 of 1981, the said land was purchased by a society named Ramyanagari Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act,1960 as per the sale deed dated 13.11.1981. Whereas the land in Final Plot no.477A admeasuring 12000 sq.meters was owned by the present respondent nos 12 to 14. The said land in Final Plot no.477A was shown in the declaration submitted by the landlords under section 6 of the ULC Act sometimes in the year 1976 itself. The owners had filed the written statements on 30.8.1976 under section 6(1) of the ULC Act and an application for exemption under section 20 of the said Act was also filed by them sometimes in the year 1979. The said application came to be rejected by the competent authority under the Act on 26.4.1979. The owners, thereafter, filed an application under section 21 of the ULC Act seeking permission for construction on the excess land and the application was rejected by the -6- competent authority on 31.10.1983 on the ground that the said land was sought to be reserved for the purposes of Pune Telephones. On 20.1.1987, the competent authority issued a notice to both the declarants for submitting their objections to the draft issued under section 8(3) of the ULC and the owners claimed that the land in final plot no.477A admeasuring to the extent of 10516.68 sq meters was sold to Kalpanamati Co-operative Housing Society in the year 1974,i.e. before the appointed day and, therefore, it was sought to be excluded from the computation of holdings of the declarants. This application was rejected on the ground that as per the Form B finalised during Town Planning Scheme the plot was equally owned by the declarants and on 12.8.1988 the competent authority passed an order under section 10(1) of the Act allowing 1000 sq.meters of the land to be retained by each of the family unit (total of 2000 sq.meters) and balance land of 10000 sq.meters was shown to be surplus. From plot no.477, about 800 sq.meters land was lost for road widening and the balance plot area came to about 3090 sq.meters. 3. Sometimes, in the year 1980-81 the Pune Telephones approached the State Government for acquisition of the land for its buildings and accordingly the entire land in Final Plot nos 477 and 477A was proposed to be reserved -7- for the Pune Telephones with draft Development Plan. It appears that when the State Government initiated acquisition proceedings by issuing a notification under section 4(1) of the Land Acquisition Act,1894, dated 19.2.1982, the same was challenged by filing a civil suit and there was a stay order. At the instance of respondent nos 7 and 8 as well as the owners a letter was issued on 28.12.1984 from the Urban Development Department stating that the request made by respondent no.7 to delete the reservation made for "Central Offices of Pune Telephones" in the Draft Revised Development Plan of Pune city, was agreed upon by the Government and necessary changes for its incorporation were under consideration of the Urban Development Department. This purported offer of the State Government came to be withdrawn by the letter dated 11.8.1986 on the ground that the alternate land shown to the Pune Telephones in the Gultekadi market area was not found to be suitable. The State Government approved the Revised Development Plan for the Pune Municipal Corporation area on or about 5.1.1987 and both these orders, i.e. the communication dated 11.8.1986 as well as the order approving the development plan came to be challenged before this court in Writ Petition No.2066 of 1987. The said petition was disposed of as withdrawn as per the order dated 7.8.1987. This court was informed that the Government was desirous of hearing all the -8- parties concerned to take a fresh decision and consequently the Minister for Urban Development passed an order on 24.6.1988 after hearing the parties. The directions given in the said order read as under: (i) The letter No.TPS.1884/862/ CR-601/84/UD-7, dated 20th December, 1984, deleting the reservation made for the Central Offices of the Pune Telephones, in Application No.42/A/3/1/A in the Draft Revised Development Plan of Pune City was agreed to by the Government and the necessary changes were to be incorporated in the Revised Draft Development Plan of Pune City when it was to be sanctioned. This letter was issued on the presumption that a suitable alternative site would be available for the Pune Telephones, from other areas. But even after a careful consideration and examination such a site was not available. Therefore, by the letter No.TPS.1885/2873/CR-328/85-I, dated 11th August, 1986, the earlier letter dated 28th December, 1984 was withdrawn. (ii) The Revised Draft Development Plan of Pune which was finally sanctioned on 5th January, 1987 confirmed the reservation for the Pune Telephones. In view of the public purpose involved -9- and considering the requirements for expansion of telephone facilities in that area, as well as the need to satisfy the large number of applicants on the waiting list, and above all, the fact that a suitable alternative site is not available, I see no ground for intervening in this matter and deleting the reservation. (iii) At the same time the request for the grant of land for construction of houses for the members of the Kalpanamati Co-operative Housing Society and the Ramyanagari Co-operative Housing Society, who between themselves have a large membership of 200 persons is genuine and valid. Both the societies have invested large amounts in the purchase of these plots and some construction work had already commenced. However, in view of the fact that the construction was started in the face of the acquisition order of the area for the Pune Telephones, the Pune Municipal Corporation issued a stop work notice to the societies on 22nd March, 1982. The request of the Societies therefore deserves consideration. (iv) The total area of the two plots FP 477 and FP 477A is 1.4 hectares. O.23 hectares goes into the proposed road-widening line and it will -10- be possible for the Pune Municipal Corporation to grant satisfactory F.S.I. for this purpose. The plans and estimates of the Pune Telephones even if completed, as well as those of the two societies even if completed, could be revised by mutual consultations with a view to meeting the requirements of the Pune Telephones in priority and allowing the two co-operative societies to be granted as much area as is possible for accommodation as large a membership as possible. (v) It has not been possible to work out details but the principle of the reservation having been accepted it should now be necessary for the Pune Municipal Corporation and the Director of Town Planning to call the parties together with a view to effecting a compromise. The absolutely minimum requirements of the Pune Telephones should be first accommodated and the balance given to the societies, in proportion to their membership. (vi) In order to reduce the strain, only such of those members as have actually paid deposits or amounts or advances with a view to acquiring ownership rights in the societies, should be considered as being eligible for being included for this purpose. If after satisfying the minimum requirements of the Pune Telephones, the area -11- available is not adequate for meeting the absolutely necessary requirements of the societies, Government should, as a special case, carve out some lands from the nearby plots in which there is land surplus to ceiling under the U.L.C. Act - and it is understood that there is a large number of survey numbers in this category and make available the land to the societies at the rates prescribed in the Urban Land Ceiling Act. . (vii) In view of the hardships experienced by the societies and in the light of the need to see that the minimum requirements of the members of the societies are satisfied, I would recommend that an additional marginal F.S.I. should be specially sanctioned by the Pune Municipal Corporation to meet the requirements. This would be a perfectly justifiable relaxation of the Development Control Rules in view of the peculiar circumstances of this case". It is pertinent to note that the above order did not materially change the status of the plots reserved for Pune Telephones and more particularly the status of the land in Final Plot no.477A declared surplus under the ULC Act and sought to be acquired under the L.A.Act,1894 by -12- the Collector, Pune. 4. The competent authority passed an order under section 10(1) of the said Act on 18.8.1988 holding that the owners were jointly entitled to retain only 2000 sq.meters of land from final plot no.477A and rest of the land was declared as surplus. Respondent nos. 7 to 9 and the owners i.e. respondent nos. 12 to 14 then seem to have approached the Minister for Urban Development, perhaps, by relying upon the earlier order dated 24.6.1988 and on 6.2.1991 a meeting was held in the Chamber of the Minister for Urban Development in Mantralaya wherein other officers like the Secretary, Urban Development, Municipal Commissioner-Pune, General Manager-Pune Telephones and the Addl.Collector and Competent Authority under the ULC Act, Pune were present, in addition to the claimants. Minutes of the meeting based on the oral directions in terms of the consent of the parties were also recorded and circulated vide letter dated 21.2.1991. The competent authority addressed a letter to the Secretary in the Housing and supply Assistance Department on 6.3.1991 and pointed out that as per the Development Plan sanctioned on 5.1.1987, the land admeasuring 1 Hector and 20 Acres was reserved for the Pune Telephone Exchange from Final Plot nos.477 and 477A of Parvati area and the orders under section 8(4) of the ULC Act in respect of the land in Plot no.477A had reached finality on 12.8.1988 itself. It was -13- also pointed out that the said order was not challenged in any appeal under the ULC Act and, therefore, the said land had become the property of the State Government. Then came the impugned order dated 24.4.1991 passed by the Minister for Urban Development. By the said order, it was noted that the requirement of the Pune Telephone Exchange was to the extent of 12000 sq.meters and it was owned by the housing societies viz. Kalpanamati Co-operative Housing Society and Ramyanagari Co-op.Housing Society. The Pune Telephones could be provided only 6000 sq.meters of land with permissible FSI 1.87 and also permission to construct basement and the remaining area of the said land to the extent of 8000 sq.meters would be made available to the said Housing Societies equally. The operative part of the said order reads as under: "ORDER "ORDER "ORDER The Pune Telephones may be allowed to retain 6000 sq.meters of land for the telephone exchange. The Pune Telephone Exchange may be entitled to extra F.S.I. and such other permissible relaxations for the telephone exchange as may be allowed by the Pune Municipal Corporation in accordance with the development control rules in force in that city. Ramyanagari Co-op. Hsg. Society is entitled to retain 3850 sq. meters of land for development. Kalpanamati Co-op. Hsg. Society may be -14- entitled to retain 4150 sq. meters of land. Both the co-operative Housing Societies are not entitled to extra F.S.I. In respect of 6000 sq. meters of land, the Collector, Pune or his officers may incorporate the agreed formula for payment of compensation with reference to the enquiries concluded under section 9 of the L.A.Act, 1894. The amount of compensation will include interest and solatium. The Award could be passed in respect of the 6000 sq. meters of land and possession could be handed over in advance as prescribed by the Land Acquisition Manual". 5. Though the Urban Development Ministry addressed a letter dated 3.5.1991 to the Director, Town Planning, at Pune, the Competent Authority under the ULC Act at Pune submitted on 16.8.1991 that the land in Final Plot no.477A admeasuring 10516.68 was declared surplus within the meaning of the said Act and there was no compensation payable to any of these two societies in respect of 6000 sq.meters land to be acquired for the Pune Telephones. The said Competent Authority published a notification under section 10(3) of the ULC Act on 23.3.1991 and thus the land admeasuring 10516.68 from Final Plot no.477A was deemed to have become the State Government property. 6. The Collector, Pune was thereafter called upon to -15- initiate fresh acquisition proceedings in respect of the land admeasuring 6000 sq.meters and more so because the suit filed earlier challenging the notification under section 4 of the Land Acquisition Act was withdrawn. The Collector, Pune, by his letter dated 15.6.1993, directed to initiate the land acquisition proceedings and finally the Award under section 11 of the Land Acquisition Act, 1894 came to be passed on 8.11.1995. Possession of the land admeasuring 6000 sq.meters from Final Plot no.477A was taken over as per the order passed by the Divisional Commissioner at Pune and thereafter the land was put in possession of the Pune Telephones. As per the Land Acquisition Officer, out of the total compensation amount of Rs.1,80,35,535/- different parties have been paid as compensation the following amounts. (i) Smt. Indumati Landge Rs. 92,50,000.00 (ii) M/s A.V.Bhatt & Co Rs. 35,00,000.00 (iii)M/s Auti Brothers, Rs. 52,62,633.00 Both these co-operative housing societies, viz. Kalpanamati Co-operative Society and Ramyanagari Co-operative Society were not paid any amount of compensation in respect of the land which came to be acquired by the Pune Telephones. Continued on 25.4.2006 Continued on 25.4.2006 Continued on 25.4.2006 7. Purportedly, taking support of the order passed by this Court allowing to withdraw Writ Petition No.2066 of -16- 1987, and, obviously, by relying upon the impugned order dated 24.4.1991 passed by the Minister for Urban Development, Under Secretary to the Government in the Urban Development department issued a notification on 3.8.1998 in exercise of the powers of the Government under section 50(2) of the Maharashtra Regional and Town Planning Act, 1966 (for short, "MRTP Act") so as to amend the notification dated 5.1.1987 sanctioning the Development Plan of the Pune Municipal Corporation in terms of the following order :- "The part land bearing Final Plot no 477 and 477A, TPS No.3 of village Parvati admeasuring about 8000 sq.meters, marked in orange colour on the part plan of Development Plan of Pune ( Plan appended to this notification) shall be deleted from the reservation of "Telephone Exchange" and included in the Residential Zone." Consequently, the said notification was published in the Maharashtra Government Gazette on 1.10.1998. It appears that the said notification was issued by the State Government after the instant petition was admitted by declining to grant interim stay vide order dated 20.10.1995. As is clear from the contents of the said notification, it flows from the impugned order passed by the Minister, Urban Development on 24.4.1991 and it being a consequential order, legality of the said notification -17- will also have to be considered by us, having regard to the prayer clause (g). We are informed that by following the said notification the remaining land admeasuring 8000 sq.meters of final plot no.477 and 477A came to be subsequently developed and the information placed before us by the Deputy Director of Town Planning at Pune and the Pune Municipal Corporation shows that substantial portion of the said plots has been used for commercial purposes and not for residential purpose. It has also been pointed out that one Mr Sharma, claiming to be the present Chairman of respondent no.15A, had managed to come in possession of a plot admeasuring about 355 sq.meters from part of plot no.477A and his multi-storeyed bungalow is either constructed or is under construction. He has filed an affidavit in reply before us claiming, inter alia, that substantial portion of 8000 sq.meters land released from reservation by the notification dated 3.8.1998 has been utilised for residential purposes and about 100 residential tenements have come up. This affidavit thus suffers from utter falsity having regard to the reports that we have received from the above named two independent agencies. 8. So far as the title of the housing society, viz. Kalpanamati Co-operative Housing Society over the land from Final Plot No.477A is concerned, it is stated that the owners, i.e. respondent nos 12 to 14, entered into an -18- agreement for sale with Kalpanamati Co-operative Housing Society through its Chairman Chandanmal Tarachand Chopda, resident of Padamadal, 587/27, Shukrawar Peth, behind Maratha Chamber of Commerce, Tilak Road, Pune-411002 in respect of the entire plot for a consideration of Rs.5/- per sq.ft. A copy of the agreement for sale which was never registered and was purportedly signed between the parties on 10.4.1974 has been brought on record by the petitioners and it shows that the owners had received a meagre amount of Rs.5000/- by way of advance. Subsequently, it is clear that on 4.2.1992, 5.2.1992 and 14.2.1992 three different agreements are claimed to have been signed by the owners with almost all the present respondents or with some additional parties. By the agreement dated 4.2.1992 interests were created in favour of M/s Bhatt & Co (respondent no.8), Auti Brothers & Co - (respondent no.9) as the agencies for development of the said land. On the very next day, another agreement was signed creating interests in favour of M/s Shah Brothers and the third agreement signed on 14.2.1992 was executed relinquishing the rights of M/s Shah Builders as created by the earlier agreement dated 5.2.1992. It is also claimed that on 22.8.1996 the owners had signed some agreements transferring the entire land from plot no.477A in favour of Kalpanamati Co-operative Housing Society. Admittedly, none of these agreements were ever registered -19- till the filing of this petition. . It is clear that Kalpanamati Co-operative Housing Society of which Mr Chandanmal Tarachand Chopada claims to be the Chairman, was registered on or about 19.7.1968 as a tenant-ownership society. On 16.3.1983 another society by the name "Kalpanamati Co-operative Housing Society,Saikrupa, 1205/5, Apte Road, Pune came to be registered and the present respondent no.7 Mr Prakash Auti, Advocate claimed to be the Chairman of the said Society and on the same day it was bifurcated into two different societies, viz. Kalpanamati Housing Society Ltd, Pune and Kalpanamati No.I Housing Society Ltd, Aundh, Poona-7 and the said societies registered in 1983 claimed to have become the owners of the entire land in plot no.477A (12000 sq.meters). ISSUES FOR CONSIDERATION ISSUES FOR CONSIDERATION ISSUES FOR CONSIDERATION 9. This public interest petition raises the following questions to be decided by us: (a) Whether the Kalpanamati Co-operative Housing Society registered in 1983 can claim legal ownership of the land in plot no.477A and whether Ramyanagari Co-operative Housing Society can claim legal ownership in respect of the