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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4526 OF 2013
1. Shri Bhaskar Dhondu Prabhulkar, ] aged about 54 years, Occupation: Service, ]
Indian Inhabitant residing at 22/392, ]
Tejas Nagar, Reynold Road, ]
Mumbai Port Trust Colony, ]
Wadala (E), Mumbai-400037. ]
2. Shri Vijay Vasant Pawar, ] aged about 63 years, Occupation: retired, ]
Indian Inhabitant residing at A/53, Mulund ]
Sagar Prasad CHS, Ltd., Gavanpada, M.P. Marg, ]
Mulund (E), Mumbai 400081. ]
3. Shri Sunil Ramakant Jadhav, ] aged about 54 years, ]
Occupation: Service, Indian ]
Inhabitant residing at 39, Blue Bell, ]
Godrej Sky Garden Housing Complex, ]
Takka Village, Panvel, District-Raigad. ]… Petitioners.
The Kokan Housing & ]
Area Development Board, Grih, ]
Nirman Bhavan, Bandra (E), ]
Mumbai 400051. ]
2. The Estate Manager, ]
The Kokan Housing & ]
Area Development Board, Grih, ]
Nirman Bhavan, Room No. 172, ]
Mezzanine Floor, Bandra (E), ]
Mumbai-400051. ]
3. Dy. Engineer, Ratnagiri Division, ]
MHADA Phase No. 4, ]
32 Tenement, Konkan Nagar, ]
H
Post Ratnagiri, Taluka & ]
District Ratnagiri – 415639. ]
4. The Sarpanch, ]
Gram Panchayat Kuwarbav, ]
Kuwarbav, At & Post Kuwarbav, ]
Taluka & District Ratnagiri. ]
5. The District Collector, ]
Collector Office, Ratnagiri ]
At & Post Ratnagiri, ]
Taluka & District Ratnagiri – 415639. ]
6. The Asstt. Registrar, ]
(C.S.) ]
Office of the Asstt.Registrar, ]
Ratnagiri At & Post Ratnagiri, ]
Kamerkar Building, Laxmi Chowk, ]
District Ratnagiri 415639. ]
7. The Chairman/Secretary, ]
Sankalp-purti CHS Ltd., At Karwanchi Wadi ]
Post Khedshi, Room No. H-24, ]
MHADA Colony, Opposite ]
Ratnagiri Gramin Police Station, ]
Taluka & District Ratnagiri. ]
8. Mr. Bhimrao Shankar Kumbhar, ]
10-C, Nanda Deep CHS Ltd., Plot ]
No. 77, Veer Savarkar Marg, Panch Pakhadi, ]
Thane (W) 400406. ]
9. The Sr. Inspector of Police, ]
Ratnagiri City Police Station, ]
Dhanaji Naka, ]
]
10. Vaishali Anant Kamble, ]
Flat No. 101, Mahalaxmi Apartment, ]
Plot No. A-2, Near Sankalpurti CHS Ltd., ]
MHADA Colony, MP Karwachi Wadi, ]
Kuvarbav, Post Khedshi, ]
Taluka & District Ratnagiri- 415639. ]
Flat No. 102, Mahalaxmi Apartment, ]
12. Pathye Rajendra Yashwant, ]
Flat No. 103, Mahalaxmi Apartment, ]
]
13. Manisha Mukund Bane, ]
Flat No. 201, Mahalaxmi Apartment, ]
]
14. Ramesh Vitthal Jadhav, ]
No. 202, Mahalaxmi Apartment, ]
]
15. Shivram Jayram Naik, ]
Flat No. 203, Mahalaxmi Apartment, ]
Taluka & District Ratnagiri-415639. ]
16. Ramesh Tukaram Kumbhar, ]
Flat No. 301, Mahalaxmi Apartment, ]
17. Ramesh Vitthal Jadhav, ]
Flat No. 302, Mahalaxmi Apartment, ]
]
18. Jaya Jagdish Chavan, ]
Flat No. 303, Mahalaxmi Apartment, ]
19. Prabhakar Damodar Javekar, ]
Flat No. 101, A Wing, Bhagawati Apartment, ]
Plot No. A-1, Near Sankalpurti CHS Ltd., ]
]
20. Prasad Madhukar Kshirsagar, ]
Flat No. 102, A Wing, Bhagawati Apartment, ]
]
21. Sheshram Jodharam Chaudhari, ]
Flat No. 101, B Wing, Bhagawati Apartment, ]
]
Flat No. 102, B Wing, Bhagawati Apartment, ]
]
23. Ravindra Dattaram Bagve, ]
Flat No. 103, B Wing, Bhagawati Apartment, ]
]
24. Ashok Keshav Mandavkar, ]
Flat No. 201, A Wing, Bhagawati Apartment, ]
]
25. Shetty Manoj Sadanand, ]
Flat No. 202, A Wing, Bhagawati Apartment, ]
]
26. Arjun Khaprya Gavit, ]
Flat No. 201, B Wing, Bhagawati Apartment, ]
]
27. Jayant Shivaji Desai, ]
Flat No. 202, B Wing, Bhagawati Apartment, ]
28. Nitin Rama Kable, ]
Flat No. 203, B Wing, Bhagawati Apartment, ]
]
29. Matkar Sachin Bhaskar, ]
Shop No. 1, Bhagawati Apartment, ]
]
30. Bhosale Parag Vinayak, ]
Shop No. 2, Bhagawati Apartment, ]
]
31. Pawar Shantaram Laxman, ]
Shop No. 3, Bhagawati Apartment, ]
]
32. Pawar Shardha Shantaram, ]
Shop No. 4, Bhagawati Apartment, ]
Taluka & District Ratnagiri- 415639.
]
33. Chaudhari Sheshram Jodharam, ]
Shop No. 5, Bhagawati Apartment, ]
34. Chaudhari Sheshram Jodharam ]
Shop No. 6, Bhagawati Apartment, ]
]
35. Charkari Mangala Subhash, ]
Shop No. 7, Bhagawati Apartment, ]
36. Charkari Subhash Laxman, ]
Shop No. 8, Bhagawati Apartment, ]
]
37. Bhagwat Anmol Balkrishna, ]
Shop No. 9, Bhagawati Apartment, ]
]
38. Patye Rajendra Yashvant, ]
Shop No. 10, Bhagawati Apartment, ]
]
Shop No. 11, Bhagawati Apartment, ]
]… Respondents.
Mr. Jaydeep K. Raut i/b Corpus Legal, Advocate for the Petitioners.
Mr. Kamlesh Ghumre a/w Ms. Sonali Jadhav Advocate for the Respondent
Nos. 1 to 3 (MHADA).
Smt. Rupali Shinde, AGP
, for the Respondent Nos. 5, 6 & 9.
Mr. Dnyaneshwar Deshmukh, Advocate for Respondent No. 8.
Mr. Sayali Bhaidkar i/b Mr. M.L. Patil, Advocate for Respondent Nos. 10 to
39.
JUDGMENT
1. By this Petition under Article 226 of the Constitution of India, the Petitioners seek to set aside the conversion of use of ‘amenity plots’ to ‘residential cum commercial’ permitted by the Konkan Housing & Area Development Board (‘KHADB’-Respondent No.1 herein) in a Housing Project at Ratnagiri.
1.1. Consequently, it also seeks to set aside the decisions of the Sarpanch of the Grampanchayat Kuwarbav, dated 24th May, 2010 and 20th November, 2010, granting permissions to the purchaser of these two amenity plots for construction. Brief facts:
2. In October, 2005, the KHADB proposed development of a residential project in Ratnagiri called ‘Ratnagiri-Kuwarbav’ and advertised for sale of plots for Bungalows, Row-houses and Residential Complex. The three Petitioners herein are residential plot-purchasers in this project. In 2009, the plot-purchasers formed a co-operative society in the name of Sankalppurti Co-operative Housing Society, (“Society”) which now consists of 115 members.
2.1. As per the layout plan of Kuwarbav project, shown to the Petitioners, the two plots bearing Nos. A-1 and A-2 were designated for amenities (“the two amenity plots”).
3. Mr. Raut, learned counsel representing the Petitioners, argued that Respondent No. 8, the treasurer of Society, had purchased the two amenity plots and constructed commercial cum residential units despite being aware that the two plots were reserved for amenities. Furthermore, he criticized the inaction of the relevant Authorities, who permitted change of land use despite repeated complaints by the Petitioners. He contended that Respondent No. 8 having purchased the two amenity plots from KHADB through the tender process, which was notably for construction of amenities, ought not to have been permitted to change the land use to construct commercial cum residential premises instead of amenities such as Hospital, Police Station, Medical Center, Post-office which are significantly lacking in this project area and are critical for the community.
4. Mr. Ghumre, learned counsel appearing for Respondent Nos. 1 to 3 asserts that KHADB has disposed of the amenity plots in accordance with the procedure prescribed by law. He contends that Regulation 5 authorizes KHADB to dispose of any vacant land or plot designated for nonresidential purpose in an approved layout. He further emphasizes that Regulation 3 provides for such disposal.
4.1. Mr Ghumre acknowledges that, the tender form used during the sale of plots was inadvertently incorrect. He points out that the construction on the plots was completed in 2006, whereas the Petition has been filed after a delay of seven years. He submits that if there were any grievance, it should have been raised by the Society itself rather than by individual members. On this ground alone, he argues, the petition deserves dismissal.
4.2. He asserts that an amenity plot can be used for various purposes, including commercial or for shopping areas, as well as for Post Office. He further emphasizes that the Gram Panchayat had earmarked the plots for “commercial shopping” in its layout plan somewhere around 18th to 28th November 2000. Addressing the Petitioners’ contention, he submits that, the assumption that these plots were required to be handed over to the society for use as open grounds or for other society related purposes is contrary to the approved proposal for the use of amenity plots.
4.3. Mr Ghumre also highlights the requirement under the regulations that 5% of the total layout must be allocated for amenities and 10% for recreational areas, amounting to 15% of the entire layout being set aside for these purposes. He points out that an area of 4377.79 sq. mts. (20.36%) has already been reserved for recreational grounds and asserts that there remains sufficient space within the layout to accommodate additional amenities as needed.
4.4. In conclusion he reiterates that, the amenity plots were disposed of in accordance with the law and that KHADB retains the authority to permit changes in their use. He emphasizes that reserving or earmarking the plots for amenities does not necessarily mean that they would be handed over to the society for open grounds or other uses. Finally he underscores that the Gram Panchayat had designated these plots for ‘commercial/shopping’ as early as November 2000, aligning with the approved layout plan.
5. Ms. Bhaidkar, learned counsel appearing for the Respondent Nos.10 to 39 supplements the arguments of Mr Ghumre. She contends that the plots were auctioned in 2009 following a Public Notice. The construction of buildings on the two plots commenced in 2010, and was completed with grant of an occupation certificate in 2013. She further submits that constructions for commercial-cum-residential use was duly applied for and approved by the KHADB in accordance with the law. Based on these facts, she argues that the Petition lacks merit and warrants dismissal.
6. We heard both counsel for Petitioners and Respondents and have carefully examined the records.
7. This Petition is untenable in our view. It ought to have been filed by the Society (consisting of 115 members) and not by three individual members. In the case of Daman Singh and others vs State of Punjab and others reported in (1985) 2 SCC 670, the Supreme Court has held that, once an individual becomes a member of a cooperative society, they relinquish their individuality in relation to the society and possess no independent rights beyond those conferred by statute or the society’s bylaws. Any actions or statements concerning the rights or duties of the society must be undertaken by the society itself. Consequently, the mere assertion of Mr Raut, that the Society supports the Petitioners carries no weight especially since the claim is not substantiated by any Affidavit.
8. It is undisputed that the said plots were sold to Respondent No.8 following the procedure prescribed by law.
KHADB retains the authority to permit change of use. The Gram-panchayat had designated the plots for commercial shopping as per the layout plan prepared around November, 2000. We are unable to accept the Petitioners’ contention that the plots should be handed over to the Society for its use, either as open grounds or otherwise.
9. The disposal of the plots must be and has been conducted in accordance with the law by KHADB. In its affidavit dated 17th February, 2020 KHADB confirmed that, more than 15% of the total area has been reserved for amenities and recreational spaces, as required under the sanctioned layout plan. Additionally, KHADB is empowered to issue a No Objection Certificate (NOC) for a change of use under Resolution 5553, while Resolution 5998 of MHADA allows the concerned Authorities to impose additional charges on purchasers for such changes. Notably, the Gram Panchayat has granted the Occupation Certificate (OC) in accordance with law.
10. It is also evident that the decision by the Authorities to permit the change of use and the sale of the two plots, A-1 and A-2, cannot be said to be questionable. Of the total area of the MHADA colony, which measures 21,500 sq. mtrs., the developed portion accounts for 10,078.90 sq. mtrs. Of this, 3,513.57 sq. mtrs. have been allocated for recreational grounds, constituting 16.34% of the total area. An additional 864.22 sq. mtrs. or 4.02%, has been designated for shopping/center and similar amenities. In total, 4,377.79 sq. mtrs. have been reserved for recreational grounds and amenities, accounting for 20.36% of the entire layout area.
11. Thus, there is no irregularity in the disposal of the two plots. It is noted that, the developer applied for a change of use on 3rd October 2012, received the NOC on 19th November 2012, and completed the construction in 2013. The Occupation Certificate was subsequently granted by the Gram Panchayat on 2nd February 2013, and this certificate remains unchallenged.
12. While the respondents have not specifically addressed the provision of amenities in their replies, it appears that sufficient space remains within the developed project area. We trust that the concerned Authorities will investigate the matter and ensure that the proposed amenities as outlined in the original plan, are provided. Furthermore, we expect that any essential amenities required for the project will be made available within a reasonable period.
13. In light of the above discussion, according to us the Petition lacks merit and deserves to be dismissed with exemplary costs.
13.1. Petition is accordingly dismissed. (KAMAL KHATA, J.) (A.S. GADKARI, J.)