Milind Panjabrao Bhende And Another v. State Of Maharashtra Through Secretary Urban Development Department, Mumbai And Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.

1767/2021 1] Milind Panjabrao Bhende, Age : 49 years, Occupation : Service, 2] Panjabrao Madhao Bhende, Age : 63 years, Occupation : Retired.

Petitioner Nos.1 and 2 R/o. Defense Nagar, Amravati. Tq.and District Amravati.

....... PETITIONERS ...V E R S U S...

1] The State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai-32.

2] The Municipal Corporation City of Amravati, through its Commissioner, Rajkamal Chowk, Amravati- 444 606.

3] Assistant Director of Town Planning, Tatte Building, Behind Labour Court, Camp, Amravati - 444 602 ....... RESPONDENTS --------------------------------------------------------------------------------------------------------------- Shri G.K.Mundhada, Advocate for petitioners.

Ms H. N. Jaipurkar, Assistant Government Pleader for respondent nos. 1 & 3. Shri R.D.Dharmadhikari, Advocate for respondent no.2. -------------------------------------------------------------------------------------------------------------- CORAM : A.S.CHANDURKAR and SMT. M.S.JAWALKAR, JJ. DATE : 22nd MARCH, 2022.

ORAL JUDGMENT (Per A.S.CHANDURKAR, J.) Rule. Rule made returnable forthwith and heard the learned counsel for the parties.

2/4 2] The challenge raised in this writ petition is to the order dated 24.12.2020 passed by the respondent no.1 thereby not accepting the purchase notice issued by the petitioners under Section 49 of the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the said Act'). Land admeasuring 1 H 59 R in Survey No.66/2 of VillageRahatgaon, Taluka and District Amravati is owned by the petitioners. The same has been reserved at Serial No.27 for the purpose of playground and DP road as per 2nd Revised Draft Development Plan of the Amravati City. The petitioners moved an application under Section 44 of the said Act on 18.03.2020 seeking permission to have the layout sanctioned. This request was rejected on 21.05.2020 by the Assistant Director of Town Planning. Thereafter on 25.06.

2020 the petitioners issued a notice under Section 49 of the said Act praying that necessary steps be taken for acquisition of the aforesaid land. On 24.12.2020 the State Government did not accept the request made by the petitioners under Section 49 of the said Act by observing that it was not shown that the owners of the land were deprived of beneficial use of the said land.

3] The learned counsel for the petitioners submits that in the purchase notice issued under Section 49 of the said Act a reference was made to the order dated 21.05.2020 passed by the Assistant Director of Town Planning refusing to grant permission for development. In view of that order the petitioners were deprived of beneficial use of that land and hence the case of the petitioners was covered by the provisions of Section 49(1)(b) and (e) of the said Act. This aspect was not taken into consideration while passing the impugned order and the purchase notice was liable to be confirmed. The learned counsel has referred to the decision in Writ Petition No.11527/2016 (M/s. Mahadev Corp vs. State of Maharashtra and ors., decided on

3/4 05.07.2017 at Principal Seat, Mumbai) to urge that the order passed by the Authority under Section 49 ought to indicate proper application of mind to all requirements thereof. It is therefore submitted that the impugned order is liable to be set aside and the notice under Section 49 of the said Act ought to be accepted. 4] The learned Assistant Government Pleader for the respondent nos. 1 and 3 and Shri R.D.Dharmadhikari, learned counsel for the respondent no.2 supported the impugned order. According to them, the compliance was required to be made by the petitioners as stated in the impugned order and the same was sufficient to dismiss the claim of the petitioners.

5] We have perused the documents placed on record. It can be seen that initially the petitioners on 18.03.2020 had sought permission to develop the property which permission was refused on 21.05.2020 by the Assistant Director of Town Planning. In the notice under Section 49 of the said Act that was issued on 25.06.2020 a reference is made to the order dated 21.05.2020 passed by the Assistant Director of Town Planning that was one of the reasons for seeking confirmation of the aforesaid notice. This Court in M/s. Mahadev Corp (supra) has held that it was necessary to consider as to whether the conditions specified in Section 49 (1) of the said Act have been duly fulfilled by the land owners while considering the aspect of confirmation of notice issued under Section 49 of the said Act. If the said aspect was not considered, the decision in question would reflect non-application of mind. Perusal of the order dated 24.12.2020 does not indicate consideration of the effect of the order dated 21.05.2020 that was passed by the Assistant Director of Town

4/4 Planning refusing to grant permission to develop the land in question. There is no reference to the aspect urged in the light of Section 49 (1) (e) of the said Act. Since the land owners contend that they have been deprived of beneficial use of that land, the said aspect in the light of Section 49(1) (e) of the said Act ought to have been considered. It is thereafter that the other reasons given in the impugned order could be taken into consideration. We find that since the order dated 21.05.2020 refusing to grant permission to develop the property would have some material bearing on the question of acceptance or otherwise of the purchase notice, a fresh decision on that purchase notice is warranted. The order dated 24.12.2020 is liable to be set aside for non-consideration of the aforesaid relevant aspects.

6] In view of aforesaid the following order is passed: i] The order dated 24.12.2020 passed by the respondent no.1 refusing to confirm the purchase notice dated 25.06.2020 is set aside. ii] The respondent no.1 shall re-consider the said notice in accordance with the provisions of the said Act and take appropriate decision in accordance with law after giving due opportunity of hearing to the petitioners. Such exercise be completed within a period of three months from the production of the copy of this order before it.

iii] The petitioners shall not seek any benefit of Section 49(5) of the said Act. All points on merits are kept open.

Rule is made absolute in the aforesaid terms with no order as to costs. (SMT. M.S.JAWALKAR, J.) (A.S.CHANDURKAR, J.) Andurkar..

ANDURKAR Personal Assistant 24.03.2022 18:22