(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5279 OF 2008 1. Bharat Eknath Nikam, Age : 41 years, Occupation : Service, R/o. C/o. R.P. Patil, Plot No.2, Police Colony, Aurangabad. 2. Manik Bhikaji Balkawade, Age : 48 years, Occupation : Service, R/o. as above. .. Petitioners. versus City & Industrial Development Corporation of Maharashtra Ltd., Through its Administrator, Udyog Bhawan, New Aurangabad. .. Respondent. .......................... Mr. A.P. Bhandari, Advocate, holding for Mr. S.V. Gangapurwala, Advocate, for the petitioners. Mr. A.S. Bajaj, Advocate, for the respondent. .......................... (2) CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 27TH AUGUST 2009. ORAL JUDGMENT (Per B.R. Gavai, J.) : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioners are seeking a direction to the respondent CIDCO to grant construction permission to the petitioners, in respect of Plot bearing No. 05, Sector NS-1 (XIIth Scheme), CIDCO, New Aurangabad, admeasuring 203 square metres 3. The plot admeasuring 203 square metres, bearing No. 5, was originally allotted in the name of one Shri Machindra s/o. Ramrao Zalte and Shri Suresh Keshavrao Songade. It appears that the said Shri Machindra Zalte and Shri Suresh Songade were allotted more than one plot and the plot in question was transferred by the aforesaid two persons in the name of the petitioner vide a tripartite agreement dated 25th August 2000. It appears that in view of the judgment delivered by the Division Bench in Writ Petition No. 2338/1999, since the plot in question was pertaining to an area for which no development plan was sanctioned, the respondent CIDCO has refused to grant building permission to the petitioner and regularize the allotment. 4. Mr. A.P. Bhandari, learned Counsel appearing for the petitioners, submits that the plot in question was transferred to the (3) petitioner by a tripartite agreement dated 25th August 2000 i.e. prior to the judgment delivered by the Division Bench of this court, in Writ Petition No. 2338/1999. He further submits that for no fault of the petitioners, the petitioners are being deprived of the building permission. 5. Mr. A.S. Bajaj, learned Counsel appearing for the respondent CIDCO, submits that in view of the judgment and order delivered in Writ Petition No. 2338/1999, all such allotments pertaining to the land wherein development plan was yet to be sanctioned, have been set aside. He submits that since the respondent CIDCO wanted to regularize the allotment, the CIDCO had approached this court for regularization of such allotment. It is submitted that the Division Bench of this court vide order dated 28th March 2003, in Civil Application No. 7360/2002, refused to regularize the allotment. He submits that the Division Bench has directed that wherein more than one plots were allotted, the allottee was permitted to retain one plot and other plot was directed to be surrendered. He submits that option was asked to Shri Machindra Zalte and Shri Suresh Songade and they have opted for keeping the plot which is not transferred in the name the petitioner. The learned Counsel for the respondent also relies on the judgment of Division Bench delivered in Writ Petition No. 2481/2004, dated 6th May 2005, in the case of Suryakant s/o. Narayanlal Khandelwal. According to the learned Counsel for the respondent, in view of this judgment, the petitioners, who are subsequent purchasers, have no right. 6. Admittedly, the plot in question is transferred to the petitioner by a tripartite agreement dated 25th August 2000. The order passed by the Division Bench, quashing and setting aside the allotments (4) in question of plots wherein the development plan was yet to be sanctioned, was passed on 10th November 2000. It is thus clear that the plot in question was transferred to the petitioner by a tripartite agreement which prior to the judgment delivered by this court in Writ Petition No. 2338/1999. Not only this, it can be seen that the Division Bench itself has granted permission to regularize the plots from these areas. However, the only rider is that, in case, wherein person has been allotted more than two plots, he was permitted to retain plot and second plot was to be surrendered. The Division Bench of this court, vide order dated 6th May 2005, in Writ Petition No. 2481/2004, has found that since the allotment itself has been declared to be null and void, the petitioner therein cannot have valid title to the plot. 7. The respondent CIDCO is a public authority. The said authority by a tripartite agreement had transferred the plot in question in favour of the petitioner. Admittedly, the judgment which was delivered by the Division Bench in Writ Petition No. 2338/1999 has been delivered, after the tripartite agreement. It is not the case, that the petitioner was aware of the said judgment and that he has entered into tripartite agreement with the original allottees, namely, Shri Machindra Zalte and Shri Suresh Songade, and the CIDCO. For the act of said Shri Machindra Zalte and Shri Suresh Songade, the petitioners cannot be penalized. 8. It is clear that the Division Bench had issued earlier directions so that the private individuals do not indulge into profiteering by acquiring more than one plots and sale them on a premium. If the original allottee has retained the plot which is in his possession, the (5) petitioners cannot be penalized for the said act. We find that in view of the equity, the petitioners are entitled to retain the plot which is transferred to them by a valid tripartite agreement entered into by the original allottee, CIDCO, and the petitioners. It is not the case of the respondents, that petitioners have any other plot allotted to them by CIDCO. In that view of the matter, we are inclined to allow the petition. 9. In the result, the petition is allowed. The petitioners are permitted to apply to the respondent CIDCO for regularization of their plot. The regularization shall be done by the respondent CIDCO, in accordance with the terms and conditions stipulated in the order of Division Bench of this court, dated 28th March 2003, in Civil Application No. 7360/2002 (in Writ Petition No. 2338/1999). Since it is undisputed position, that the petitioners are not having more than one plot, the directions which are applicable to the multiple plot holders shall not be applicable in the present case. 10. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp5279