Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10899 OF 2022
1. Chandrakant Uttam Kolekar
Age: 56 years; Occu.: Agriculture, R/o House No.172, Near Maruti
Temple, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
2. Suryakant Uttam Kolekar
Age: 46 years; Occu.: Agriculture, R/o House No.172, Near Maruti
Temple, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
3. Uttam Narayan Kolekar
Age: 85 years; Occu.: Agriculture, R/o House No.172, Near Maruti
Temple, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
4. Shrikant Suresh Padale
Age: 32 years; Occu.: Agriculture, R/o S/No. 10/B, Sunil Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
5. Shridhar Suresh Padale
Age: 30 years; Occu.: Agriculture, R/o S/No. 18/B, Sunil Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
Age: 62 years; Occu.: Agriculture, R/o S/No. 18/B, Sunil Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
7. Ramdas Chiman Padale
Age: 50 years; Occu.: Agriculture, R/o S/No. 18/B, Sunil Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
8. Vinayak Ramdas Padale
Age: 25 years; Occu.: Agriculture, R/o S/No. 18/B, Sunil Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
9. Chagan Kundalik Gujar
Age: 85 years; Occu.: Agriculture, R/o S/No. 50, Mahalunge-Nande
Road, Waghjai Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
10.Sakharam Tukaram Pashankar
Age: 63 years; Occu.: Agriculture, R/o S/No. 49/1, Nande-Mahalunge
Road, Waghjai Vasti, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
11. Sahdev Tukaram Pashankar
Age: 56 years; Occu.: Agriculture, R/o S/No. 49/1, Nande-Mahalunge
12.Nirmala Balkrushna Pashankar
Age: 40 years; Occu.: Agriculture, R/o S/No. 49/1, Nande-Mahalunge
Road, Waghjai Vasti, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
13.Anil Tukaram Pashankar
Age: 50 years; Occu.: Agriculture, R/o S/No. 49/1, Nande-Mahalunge
Road, Waghjai Vasti, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
14.Suresh Maruti Padale
Age: 45 years; Occu.: Agriculture, R/o Nande-Mahalunge Road, Rasaynik Ayurved Company Javal, S/No. 48/10, Mahalunge, Tal.- Mulshi, Dist – Pune 411045.
15.Shankar Maruti Padale
Age: 38 years; Occu.: Agriculture, R/o Nande-Mahalunge Road, Rasaynik Ayurved Company Javal, S/No. 48/10, Mahalunge, Tal.- Mulshi, Dist – Pune 411045.
16.Shivaji Krushna Paygude
Age: 41 years; Occu.: Agriculture, R/o S.N. 18/4, Paygude Vasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
Age: 62 years; Occu.: Agriculture, R/o Near Shiv Chatrapati Krida Sankul, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
18.Laxman Vithoba Padale
Age: 60 years; Occu.: Agriculture, R/o Vitai Niwas, S/No.-29/6/2, Nande-Mahalunge Road, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
19.Rahul Laxman Padale
Age: 37 years; Occu.: Agriculture, R/o Vitai Niwas, S/No.-29/6/2, Nande-Mahalunge Road, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
20.Ravi Laxman Padale
Age: 34 years; Occu.: Agriculture, R/o Vitai Niwas, S/No.-29/6/2, Nande-Mahalunge Road, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
21. Ramdas Vithoba Padale
Age: 60 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
22.Mahadev Vithoba Padale
Age: 80 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
Age: 46 years; Occu.: Agriculture, R/o House No.12, Behind Math Talim, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
24.Raju Maruti Shedge
Age: 27 years; Occu.: Agriculture, R/o House No.12, Behind Math Talim, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
25.Aniket Maruti Shedge
Age: 25 years; Occu.: Agriculture, R/o House No.12, Behind Math Talim, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
26.Sujata Dattatray Shedge
Age: 36 years; Occu.: Agriculture, R/o House No.12, Behind Math Talim, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
27.Siddhika Dattatray Shedge
Age: 19 years; Occu.: Agriculture, R/o House No.12, Behind Math Talim, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
28.Kaushik Balasaheb Sutar
Age: 28 years; Occu.: Agriculture, R/o Sutarwadi, Mahalunge-Nande Road,
29.Dyaneshwar Krushnaji Shedge
Age: 34 years; Occu.: Agriculture, R/o Shedge Niwas, Front of Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
30.Janta Krushnaji Shedge
Age: 54 years; Occu.: Agriculture, R/o Shedge Niwas, Front of Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
31. Rasika Santosh Bhondave
Age: 35 years; Occu.: Agriculture, R/o Shedge Niwas, Front of Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
32.Kamlesh Krushnaji Shedge
Age: 37 years; Occu.: Agriculture, R/o Shedge Niwas, Front of Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
33.Vishwanath Damodar Paygude
Age: 76 years; Occu.: Agriculture, R/o Paygude Vasti, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
34.Gulab Kisan Padale
Age: 76 years; Occu.: Agriculture,
35.Dharmraj Somaji Padale
Age: 68 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
36.Kanta Bajirao Padale
Age: 48 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
37.Prashant Bajirao Padale
Age: 32 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
38.Jalinder Nathu Padale
Age: 72 years; Occu.: Agriculture, R/o Behind Z.P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
39.Rajaram Shankar Padale
Age: 76 years; Occu.: Agriculture, R/o Swastik Heights, Near Datta Mandir, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
40.Shailendra Prakash Padale
Age: 33 years; Occu.: Agriculture, R/o Swastik Heights, Near Datta Mandir, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
Age: 52 years; Occu.: Agriculture, R/o Swastik Heights, Near Datta Mandir, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
42.Ankush Baban Padale
Age: 40 years; Occu.: Agriculture, R/o Sambhaji Nagar, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
43.Ramesh Maruti Rajguru
Age: 67 years; Occu.: Agriculture, R/o Vitai Niwas, Near Vitai Hotel, S/no.-53/6, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
44.Ashok Aabu Kolekar
Age: 73 years; Occu.: Agriculture, R/o Kolekar Niwas, Kolekar Vasti, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
45.Murlidhar Shankar Padale
Age: 71 years; Occu.: Agriculture, R/o S/no. 48, Rasaynik Ayurved
Company, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
46.Sudam Namdev Khaire
Age: 68 years; Occu.: Agriculture, R/o House no. 162, Near Datta Mandir, Mahalunge, Taluka-Mulshi,
47.Shantaram Dattatray Padale
Age: 66 years; Occu.: Agriculture, R/o Behind Ram Temple, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
48.Rakhamji Vamanrao Padale
Age: 58 years; Occu.: Agriculture, R/o Near Z. P. School, Mahalunge, Taluka-Mulshi, Dist – Pune 411045.
49.Kaluram Nathu Sutar
Age: 62 years; Occu.: Agriculture, R/o Near Shiv Chatrapati Krida Sankul, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
50.Vasudev Ramdas Kolekar
Age: 36 years; Occu.: Agriculture, R/o House no.-231, Kolekar Wasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
51. Sukhdev Ramdas Kolekar
Age: 40 years; Occu.: Agriculture, R/o House no.-231, Kolekar Wasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
52.Hirabai Ramdas Kolekar
Age: 58 years; Occu.: Agriculture, R/o House no.-231, Kolekar Wasti, Mahalunge, Taluka - Mulshi,
53.Deepmala Santosh Barne
Age: 38 years; Occu.: Agriculture, R/o House no.-231, Kolekar Wasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
54.Vithal Shankar Kolekar
Age: 52 years; Occu.: Agriculture, R/o House no.-231, Kolekar Wasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045.
55.Eknath Annasaheb Paygude
Age: 67 years; Occu.: Agriculture, R/o S.N. 18/4, Paygude Vasti, Mahalunge, Taluka - Mulshi, Dist – Pune 411045. … Petitioners
Through its Principal Secretary, The Urban Development Department, Mantralaya, Mumbai – 32.
2. The Pune Metropolitan Region
Development Authority, Through its Chief Executive Officer and Metropolitan Commissioner, Pune.
3. The Arbitrator, Mahalunge-Maan Town Planning
Development Authority, Survey No. 152-153, Maharaja
Sayajirao Gaikwad Udyog Bhavan, Aundh, Pune – 411067. … Respondents
Ms Madhavi Ayyappan i/by Talekar & Associates for the Petitioner.
Mr B. V. Samant, AGP a/w Ms Rupali M. Shinde, AGP for the
State-Respondent No.1.
Mr Rajiv Chavan, Senior Advocate a/w Mr Vijaykumar Dhakane a/w Mr Dinesh Adsule for the Respondent Nos. 2 and 3.
JUDGMENT
2. It is the case of the petitioners that the Pune Metropolitan Region consists of the important cities of Pune and Pimpri Chinchwad, as well as seven Municipal Councils, including Lonavala Hill Station, Nagar Panchayat of Vadgaon Maval and three Cantonment Boards; Khadki, Dehu and Pune. Additionally, it covers 842 villages and has a population of 7.[5] million, according to the 2011 census.
3. Mahalunge and Maan villages are located within the Pune Metropolitan Region near the rapidly growing IT park at Hinjewadi. They are also adjacent to the Pune Municipal Corporation boundary and the Mumbai Bangalore Highway. Despite their high potential, they have remained underdeveloped due to their classification as agricultural or no development zones in the existing regional development plan.
4. On 11 July 2016, the Government of Maharashtra established the Pune Municipal Region Development Authority (for short ‘the PMRDA’) to plan the development of Pune City, bipin prithiani Pimpri Chinchwad Industrial City, and the surrounding area of about 7357 sq. km. In 2018, PMRDA was declared as the Special Planning Authority for Pune Metropolitan Region under Section 40(1) of the MRTP Act. In 2017, due to the growth of the IT park at Hinjewadi and the potential for development of the nearby villages, the PMRDA announced its intention to prepare Mahalunge-Maan Town Planning Scheme No.1, which was published in the Maharashtra Government Gazette. Later that year, the Government of Maharashtra delegated its powers under Section 68(2) of the Act to the Metropolitan Commissioners of the concerned Metropolitan Region Development Authorities. However, according to the petitioners, this delegation of power was inappropriate as sanctioning a draft Scheme prepared by a planning authority was essentially a function of the State Government.
5. The petitioners claim that the Metropolitan Commissioner and Chief Executive Officer of PMRDA met the villagers whose land was included in the draft scheme under Rule 4 of the Maharashtra Town Planning Schemes Rules, 1974. The authorities told the villagers that they would acquire half of their lands for the project and offer them either FSI or monetary compensation. The villagers were also told that they would be given developed plots for the 50% of their land. However, the petitioners claim that no bipin prithiani further details were provided in regard to the project and on its development or in regard to its completion time. The petitioners reportedly expressed their objections to the draft Scheme and its implementation and refused to accept FSI as compensation. They demanded compensation under new acquisition laws and pointed out that the proposed 36-meter DP road would affect many villagers’ residential and commercial properties, which they believed warranted compensation.
6. The villagers objected to the merger and division of their lands, stating that it would create disputes and jeopardize their livelihoods. They also informed the authorities that MIDC had proposed compensation under new land acquisition laws for building a 36-meter-wide road and asked that the PMRDA take this into account when finalising the Scheme. The villagers requested a hearing by sending notices on 6 December 2017, 8 December 2017 and 3 January 2018. Meanwhile, the authority decided to change the boundary of the TP Scheme under Section 62 of the MRTP Act and published it in the Gazette on 15- 21.02.2018.
7. It is the grievance of the petitioners that the authority prepared a draft scheme for the purposes of Section 61 of the Act vide Resolution No.2 dated 24 March 2018, without considering bipin prithiani the objections and suggestions made by the villagers.
8. The petitioners have expressed concerns that the draft Scheme does not include provisions for the acquisition of final plots designated for local society amenities development, as required by Section 64(a) of the Act. The draft Scheme includes a map with final plot numbers, but it does not specify plot allotment. Additionally, the draft scheme does not propose the formation, merging, or alteration of a final plot to a dispossessed owner or the transfer of ownership of an original plot, as required by Section 65 of the Act.
9. Further, it is the case of the petitioners that they, along with other villagers, filed complaints about the unfair division, reservation, and allotment of plots, as well as the non-payment of compensation. The Special Executive Officer and Deputy Collector of the PMRDA invited the petitioners to discuss their objections on 4 June 2018. Meanwhile, the respondent authorities conducted a joint measurement of the lands owned by the petitioners and other villagers and created an inventory of fruit-bearing trees and buildings for valuation purposes. The petitioners were informed that their compensation claim was being considered based on the property valuation determined by the joint measurement.
10. It is the grievance of the petitioners that the Metropolitan Commissioner and the CEO of the PMRDA approved the draft town planning Scheme without considering their objections or those of other villagers. This was done under Section 68(2) of the Act, as stated in the Notification dated 22 June 2018. The Metropolitan Commissioner and CEO of the PMRDA did not consult the Director of Town Planning or conduct any enquiry before approving the Scheme. They justified this by stating that consultation with the Director of Town Planning, MS, Pune, had already taken place before the draft Scheme was published under Section 61(1) of the Act, so further consultation was not necessary before approving the Scheme under Section 68(2) of the Act.
11. According to the petitioners, Sections 61 and 68 of the Act operate at different stages. The language in Section 68 concerning consultation with the Director of Town Planning is mandatory and cannot be ignored simply because the Director of Town Planning approved it under Section 61 of the Act. The respondent authority neglected to consult the Director of Town Planning, resulting in the revocation of the Notification dated 22 June 2018 by the Government of Maharashtra. On 9 August 2018, the PMRDA prescribed the Scheme to the Director of Town Planning. The Director instructed the authority to make necessary modifications and take appropriate legal measures vide letter dated 18 September
2018. On 19 September 2018, the PMRDA’s Metropolitan Commissioner and CEO approved the draft town planning Scheme. On 16 October 2018, Mr D.S. Khot, an Assistant Director of Town Planning, was appointed as the Arbitrator for approving the draft Scheme by the Maharashtra Government’s Urban Development Department under Section 72(1) of the Act.
12. The petitioners claim that the Arbitration is required by Section 72(3) of the Act to divide the town planning Scheme into a preliminary and final Scheme, following due procedure. The preliminary Scheme must be prepared within nine months, and the final Scheme within eighteen months of the Arbitrator’s appointment. The Arbitrator then asked the villagers to submit objections to the final plot allotment in the draft town planning Scheme and file compensation claims under Section 102 within sixty days of receiving the notices. The villagers were called for hearings on different dates. Some petitioners attended the hearings and raised objections to the final plot allotments, while others requested alternative dates due to personal difficulties.
13. The petitioners raised objections to the division of their land bipin prithiani into smaller units and the reshuffling of their plots, stating that it would cause them undue hardship. They requested that their original survey numbers be retained to allow them to continue farming. They also objected to the allotment of non-contiguous plots and requested for allotment of a consolidated plot. The petitioners brought to the Arbitrator’s attention that some of the allotted plots were not developable or non-buildable. They also raised a claim for compensation, which the Arbitrator assured would be considered before taking possession of their lands.
14. The petitioners have raised concerns that their objections were ignored by the Arbitrator. They contend that in a surprising move, the respondent authority issued notices on 17 May 2019, asking the villagers to hand over possession even before finalising the preliminary compensation Scheme. The petitioners objected, stating that their claims should be settled and compensation paid before taking possession.
15. On 24 July 2019, the Arbitrator announced that he had drawn up the preliminary town planning Scheme, Mahalunge- Maan No.1, in accordance with the provisions of the Act. This was confirmed through a public notice published in the Government Gazette on 26 July 2019. The State Government approved the Scheme with some modifications as described in Schedule I (pertaining to final plots) and Schedule II (pertaining to special development control and promotion regulations of town planning Scheme No.1) vide Notification issued on 2 December 2019. The sanctioned preliminary town planning Scheme No.1 came into effect on 10 February 2020.
16. The petitioners claim that the Arbitrator made changes to the allotment of plots as outlined in Schedule-I of the Notification dated 2 December 2019. It is their grievance that the Arbitrator altered the draft town planning Scheme to accommodate the preferences of some landowners by giving them their desired plots. The shape and size of these plots were changed according to their demands, and different plots were merged by altering their boundaries.
17. According to the petitioners, the Government of Maharashtra has approved special development control regulations for the Maan-Mahalunge town planning Scheme, as detailed in Schedule II of the Notification. The maximum allowed FSI for final plots without monetary compensation, amenity plots, and EWS/LIG plots will vary from 2.[5] to 3.[3] depending on the width of the road. These Special Development Control Regulations will only apply if villagers decide to build on their plots. Section 65 of the Act states bipin prithiani that an owner’s property cannot be taken by the planning authority or any other authority without their consent. Any changes to the property’s boundaries, including merging or separating, must also be done with the owner’s consent and for consideration. However, the planning authority and the Arbitrator proceeded to make changes to the original plot without the consent of the petitioners and land owners, which is in violation of Section 65 of the Act.
18. Miss Madhavi Ayyappan, learned counsel appearing on behalf of the petitioners, submitted that the State is obligated to provide compensation when acquiring private property for public use. She submitted that seizing the petitioners’ land without determining and providing compensation is a violation of not only Article 300-A but also Articles 14 and 21 of the Constitution of India. It is submitted that additional FSI cannot be considered as a substitute for monetary compensation and that providing 50% developed plots in exchange for their entire land is not a valid justification for withholding monetary compensation. It is submitted that the respondent authorities should have included the compensation amount in the project cost estimate as mandated by Section 97 of the Act, and the Arbitrator was required to determine the compensation for land owners whose land was being acquired for the Scheme. It is submitted that dividing the petitioners’ bipin prithiani contiguous land into smaller plots and allocating them to other villagers without their consent is a violation of Section 65 of the Act.
19. Relying on the Judgment of the Hon’ble Supreme Court in Hari Krishna Mandir Trust v/s. State of Maharashtra, reported in (2020) 9 SCC 356, the learned counsel for the petitioners, submitted that any transfer, division or amalgamation of existing plots without the parties’ consent is unlawful and invalid. Despite a public notice on 14 February 2020 stating that individual awards were communicated, the petitioners claim they never received any communication.
20. It is submitted that the Arbitrator did not address the petitioners’ objections regarding plot allotment or compensation payment when finalising the Scheme. It is submitted that the final draft town planning Scheme fails to meet the legal requirements specified in Section 72(6) of the Act. The final draft does not include an estimated amount of compensation payable u/s 66 or an estimate of compensation for loss of original plot area as per Clause (f) of sub-section (1) of Section 97. It also fails to estimate compensation for property or rights affected by the town planning Scheme as per Section 102 or determine if the area reserved for bipin prithiani public purposes is beneficial to owners or residents within the Scheme area.
21. It is submitted that the town planning Scheme, both in its draft and final form, did not comply with the statutory requirements. It is also submitted that the petitioners were not given written reasons for the denial of compensation by either the Arbitrator or the authority. Instead, they were orally informed that they would receive developed plots and an FSI of 2.[5] instead of compensation. However, it is submitted that these alternatives are not equivalent to monetary compensation and that the additional FSI would only be useful if they planned to use their land for construction. Since their lands are agricultural, the FSI would be of no use to them.
22. It is submitted that despite being asked the petitioners to submit their claims against the Arbitrators’ decision, they have not received any personal communication to date and are unaware of why their requests for compensation were denied. It is submitted that the State of Maharashtra has not established an Appellate Tribunal to review the claims of the petitioners against the Arbitrator’s decision. Furthermore, it is alleged that respondent authorities/officers, accompanied by police, have visited land bipin prithiani owners and pressured them to surrender their lands.
23. On the other hand, Mr B. V. Samant learned Additional Government Pleader appearing for respondent no.1, inviting our attention to the affidavit filed on behalf of respondent no.1 submitted that the State Government did not set up an Appeal Tribunal as per the PMRDA’s suggestion because the PMRDA has proposed changes to the preliminary draft town planning Scheme (Mahalunge-Maan) and they wanted to avoid doing the same work twice.
24. Mr Rajiv Chavan, learned senior counsel appearing on behalf of respondents no. 2 and 3, submitted on 14 February 2020, the Arbitrator split the Scheme into a preliminary and final Scheme under Section 72(3) of the Act. The Government has approved the preliminary Scheme, which had details of land owners’ area, share, and ownership as per Section 72(4). However, the Arbitrator still has to prepare the final Scheme after the Tribunal of Appeal’s decision as per Section 72(6) of the Act. The final Scheme would determine and give compensation to the concerned landowners after getting Government approval.
25. The learned senior counsel submitted that the PMRDA suggested setting up the Tribunal of Appeal on 20 May 2022, but