Disposed

Anil Vinayakrao Jadhav and Ors. v. the State of Mah and Ors.

Bombay HC12 Jan 2016WP/1035/2012

Case brief

AI extract

What is this about?

Petitioners challenged a lease and proposed elevated construction by CIDCO on Plot No.5 as violating town plans and obstructing a road. The Court rejected the stay plea but issued specific directions for construction height, usage, and parking compliance.

What did the court decide?

Directions issued that construction must rest 18 feet above road, be used only for restaurant purposes, ensure parking areas are open, and not obstruct the road for excessive time.

Anil Vinayakrao Jadhav and Ors. Vs the State… — Civil Procedure and Limitation | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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WRIT PETITION NO.1035 OF 2012

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1) Anil s/o Vinayakrao Jadhav,

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Age-35 years, Occu:Business,

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R/o-Shop No.16, Rathi Gallexy,

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Building No.4-B, Cannought Place, CIDCO, Aurangabad,

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2) Pankaj s/o Dhanraj Badhe, Age-41 years, Occu:Teacher,

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R/o-Flat No.3, "Samyak Plaza", Block No.6-A, Cannought Place, CIDCO, Aurangabad,

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3) Sanjay s/o Sakharam Hake, Age-42 years, Occu:Service, R/o-Flat No.7, "Samyak Plaza", Cannought Place, CIDCO, Aurangabad,

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4) Lalit s/o Ramgopal Rathi, Age-54 years, Occu:Business, R/o-Rathi Towers, Dashmeshnagar, Aurangabad.

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...PETITIONERS

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 VERSUS

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1) The State of Maharashtra,

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Through its Secretary,

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Urban Development Department,

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Mantralaya, Mumbai-32,

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2) City and Industrial Development Corporation of Maharashtra Ltd., Through its Managing Director, Mumbai,

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3) City and Industrial Development Corporation, Aurangabad, Through its Administrator,

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4) Aurangabad Municipal Corporation, Aurangabad, Through its Commissioner, Aurangabad,

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5) M/s. Nirmiti Construction,
 Through its Prop.
 Shri Indrajeet Panditrao Thorat,
 Age-50 years, Occu:Business,
 R/o-"Sudarshan", Bansilal Nagar,
 Aurangabad.

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...RESPONDENTS

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...

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 Mr.V.J. Dixit, Senior Counsel i/b. Mr. Anand
 V. Patil Advocate for Petitioners.
 Mr.A.B. Girase, Government Pleader for
 Respondent No.1.

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 Mr. A.s. Bajaj Advocate for Respondent
 Nos. 2 and 3.

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 Mr. A.M. Karad Advocate for Respondent No.4.
 Mr. R.N. Dhorde, Senior Counsel with Mr. V.R.
 Dhorde Advocate for Respondent No.5.

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...

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CORAM: R.M. BORDE AND

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 DATE : 12TH JANUARY, 2016

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ORDER [PER A.I.S. CHEEMA, J.] :

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1.This Petition has been filed by the

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Petitioners claiming that Respondent No.3 - City

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and Industrial Development Corporation (CIDCO),
Aurangabad has entered into lease deed dated 1st
January 2008 with Respondent No.5 - M/s. Nirmiti
Construction, in respect of so-called Plot No.5
admeasuring 252 sq. meters situated in Survey
No.77 (P), Cannaught Place, Town Center, Cidco,
Aurangabad. It is claimed that Respondent No.4 -
Aurangabad Municipal Corporation has granted
construction permission / commencement certificate
dated 11th October 2011 in favour of Respondent
No.5 for making construction on Plot No.5. The
Petition claims and it is argued that Plot No.5 is
a non-existing plot and at the concerned spot

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there is 18 meter wide development plan road as
per the town plan scheme. The Petitioners claim

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that Petitioner Nos. 1 to 3 are possessors of
tenements and shops situated in building standing

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on Block Nos. 6-A and 6-B and Petitioner No.4 is
owner of Plot No.4-A situated in Cannaught Place.

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It is claimed that the construction is in
violation of relevant Building Control Regulations
and Rules. It is claimed that in the allotment

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made to the Petitioners by CIDCO in Block Nos. 4,
6 and 7, no such plot is shown adjacent to Plot
Nos. 4, 6 and 7. Respondent Nos. 2 and 3 are
special planning authorities and the land was
acquired in CIDCO area and allotted to different
persons for development by preparing necessary
lay-out. The plots, after allotment, have been
developed by builders and on constructing the
buildings, the same have been sold out to third
persons and as such no plot is available in
Cannaught Garden, CIDCO, Aurangabad. Inspite of
this, Respondent No.3 has entered into agreement

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of lease in favour of Respondent No.5. It is
claimed that Respondent No.5 is intending to
construct commercial - cum residential building on
the said Plot No.5 above 18 meter development plan

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road. It appears that pillars of construction of
the proposed building on Plot No.5 would be laid
on 18 meter development plan road. It appears that

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the building on Plot No.5 would be erected
touching the walls of buildings which are already
standing on Block Nos. 6 and 7. It is further
argued that Respondent No.5 intends to fix pillars
on 18 meter wide road. Respondent No.4 Corporation
has granted building permission and Annexure F is
copy of the commencement certificate along with
map. It is stated that Respondent No.5 intends to
construct the stair-case and lift of the proposed

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building in common area of Plot Nos. 4 and 6,
which cannot be permitted and accepted. The said
construction would obstruct 18 meter development
plan road. The building proposed does not show
area of parking for the said building.

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2.Respondent No.5 has filed affidavit in

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reply dated 28th June 2012 and Respondent Nos.2

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and 3 have filed affidavit in reply dated 31st

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October 2012. The Petitioners have filed

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rejoinders refuting the claims made in the

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affidavit in reply by the Respondents.

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3.It has been stated on behalf of the

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Respondents, relying on the affidavits in reply,
that what has been executed by Respondent No.3 in
favour of Respondent No.5 in respect of Block No.5
is lease deed of F.S.I. to the extent of 252 sq.
meters. It is stated that the area of Cannaught
Place has been developed as per 'action area plan'
and the area admeasuing 6 Hectors has been ear-
marked as 'action area'.

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4.The learned counsel for CIDCO, relied on

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Para Nos. 2.4 and 2.5 of the General Development
Control Regulations for Notified Areas of 'New
Towns', copy of which has been tendered. Para
Nos.2.4 and 2.5 read as under:

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"2.4 ACTION AREA :

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Means an area where the Corporation does
the building development at its own
instance or an area for which the
Corporation intends to prepare a detailed
layout with Special Development Control
Regulation. (If Special Development Control
Rules are not prepared, these General
Development Control Rules shall prevail).

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2.5 ACTION AREA PLAN :

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Means the Plan, Special Development
Controls for it, if any, and report
indicating the detailed layout of proposed
development in the Action Area, which may
stipulate the land use permitted on each
plot and the extent to which the building
operations may be undertaken on each plot."

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.It is claimed by the learned counsel for
CIDCO that in view of such Action Area Plan, the

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area admeasuring 6 Hectors has been ear-marked as
Action Area and it was notified in the development

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plan proposal sent for approval to the Government.

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Accordingly a Book-let was published inviting
applications for allotment of F.S.I. in the area

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to be called Cannaught Place which Book-let
embodied proposed scheme. Even the cover of the
Book-let indicated its layout along with the
prospective building to be constructed over the
said area. It has been stated on behalf of the
CIDCO that the Petitioners, who also resorted to
the same Book-let to apply and occupy the portions

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allotted to them, are now making grievance
regarding lease deed executed of area to be
constructed above 18 meter road, which grievance

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has no basis. It is stated that this very thing
was clearly spelt out in the Book-let and it was
specifically mentioned as "Special Building" so as
to give idea to the public at large and more
particularly, persons applying for lease of
respective F.S.I. area. Whatever has been done by
the CIDCO, has been done in terms of the scheme

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spelt out in the Book-let published, inviting the

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applications from the public at large. The

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construction to be carried out by Respondent No.5
is in accordance with the permission granted to
them and the permission has been granted,
following Development Control Rules, which have
been approved by the Government.

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5.It is further claimed on behalf of the

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Respondents that CIDCO had called tenders from the
public at large for leasing out the plots at
Cannaught Place and necessary tender was published

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in 1998 showing the Blocks and layout of the
buildings to be constructed on the said Blocks. As

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per the brochure, out of 12 Blocks, Block No.5 was
shown as Special Building. Special plan of the
Special Building was given in Annexure-IV of the

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Book-let and the Petitioners cannot claim that no
such Block exists. Annexure-I of the Book-let
specifically shows existence of Bock No.5 and
gives details as to how the same is to be

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constructed. The Block No.5 is situated on 18
meter wide road as per the plan/scheme and is to

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be constructed at level of 17 feet height through

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which the road will be passing. Copy of the Book-
let has been filed on record as Exhibit R-1.

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6.It is stated on behalf of Respondent No.5
that in 1998 when tenders were called, Respondent
No.5 had filled in tender for Block No.5
admeasuring 252 sq. meters and his offer was
accepted by Respondent No.2 and lease was executed
on 23rd August 2001 (Exhibit D). Thereafter
registered deed dated 1st January 2008 came to be
executed. Respondent No.5 applied to Municipal
Corporation (Respondent No.4) and the necessary
plan was submitted and construction permission has
been received.

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7.At the time of arguments, the learned

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counsel for CIDCO filed copies of commencement
certificates issued in favour of the Petitioners

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along with their plans of constructions. It has
been argued that the plans approved clearly show

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that the portions allotted are not rectangle but
there were niche carved out and common areas left
from where the access to the Special Building No.5
was to come up. It has been argued on behalf of
the CIDCO, referring to introduction and details
in the Book-let, that the area was developed as a
commercial complex with special parking places
which could accommodate 400 cars. Reference has
been made to Para 2 II of the Book-let which reads
as under:

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"II) Special Buildings:

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 Out of the above 12 blocks, 5 building are
termed as special buildings which provide
linkages to other buildings to form an
attractive skyline of the project. These
buildings are to have 17.0" high stills
through which roads/pathways pass. The
buildings are to be constructed with only
one floor over the stilts and an area of
about 252 M2 and 85 M2. These buildings are
to be used only for Restaurant purpose. The
special buildings are 3, 5, 7-A, 8-A.

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`Buildings`	`Area in sq.`
	`mtr.`
`3`	`252`M²
`5`	`252 M`²
`7-A`	`77.0 M`²
`8-A`	`77.0 M`²

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 The typical plan of Special building is
given in Annexure-IV."

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.The counsel for CIDCO pointed out that

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the Blocks in which the Petitioners have
occupancy, have niche in this regard and the
Petitioners could have seen from the cover of the
Book-let itself also, that such elevated
construction on pillars would be coming up.

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8.Learned counsel for CIDCO further

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referred to Agenda Note dated 17th August 1990

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with regard to development of this area in which,
in Para 2 there was reference to the Special
Buildings, as under:

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"2. Special Buildings :

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 Out of the above 35 buildings, 5
buildings are termed as special buildings
which provide linkages to other building to
form an attractive skyline of the project.
These buildings are proposed on stilt
levels of sufficient height through which
road/pathways pass. The buildings are to be
constructed with only one floor over these
stilts. (3, 5, 7-A, 8-A, 12-A). The total
FSI to be leased out for these buildings is
= 751.50 sq. mtr."

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9.Thus, according to the Respondents, this

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elevated building for the purpose of restaurant,
on pillars, was the concept which was floated by
the CIDCO and which has been approved by the
Government and the Cannaught place area in
Aurangabad has been developed with such plans. It

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has been argued that the Petitioners were aware of
all the plans and inspite of the same, they have

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entered into agreements to have their present
occupancy. They cannot now raise questions to the

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further execution of the plans got approved by the
CIDCO.

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10.It has been argued by learned senior

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counsel for the Petitioners that although in the
Book-let Special Building is shown only for
restaurant purpose, the plan approved for
Respondent No.5 includes residential parts. At the
time of arguments, the Respondents did not dispute
that the proposed building could be only used for
restaurant purposes and no part could be used for
restaurant purposes.

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11.Looking to the submissions made and the
fact that CIDCO has got necessary plans approved
and the concerned project was taken up as action
area plan under the Development Control
Regulations, we find that the Petitioners fail to
make out a case to stay the development being made

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by CIDCO. We find that the lease made in favour of
Respondent No.5 does not require interference, but

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the construction can be permitted only with
certain conditions. After discussing with Counsel
for both sides, we find them not averse to the
Order we propose to pass.

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12.We, thus, pass the following order:

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O R D E R

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(I) The proposed construction to be made

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by Respondent No.5 shall not rest on any

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part of existing buildings occupied by the
Petitioners.

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(II) The building shall rest 18 Feet above

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the level of the road passing below. This
is necessary as relaying raises height of

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road in course of time. No portion of the

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pillars or stair-case or lift shall occupy
any part of the road or foot-path below.

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(III) The Special Building shall be used

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only for the purpose of restaurant and no

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part shall be used for residential
purpose.

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(IV) Respondent Nos. 2 to 4 - CIDCO and
Municipal Corporation, Aurangabad shall
ensure that the portions ear-marked for
parking, are kept open for parking in the

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area as per the plans.

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(V) Respondents shall, at the time of
construction of Special Building No.5,

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take care and shall ensure that the road
passing below is not obstructed for time
more than necessary.

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.With the above directions, Writ Petition
stands disposed of.

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[A.I.S. CHEEMA, J.] [R.M. BORDE, J.]
asb/JAN16

Anil Vinayakrao Jadhav and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Anil Vinayakrao Jadhav and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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