Galore Developers Private Limited v. Solapur Municipal Corporation

15. The petitioner has already handed over the required

496.47 sq. mtrs. area. Learned senior counsel tendered the original documents for consideration of this Court in support of his submission that even according to the Area Statement issued by the respondent nos.[1] and 2 while sanctioning the plan submitted by the petitioner, the respondent nos.[1] and 2 has rightly considered 15% of the 30% under the said clause (c) as 381 sq. mtrs. which came to be revised as 496 sq. mtrs. The respondent nos.[1] and 2 thus cannot be allowed to issue a notice under section 51 of the MRTP Act on the ground that there was a mistake on the part of the respondent nos.[1] and 2 all throughout.

16. Mr.Patil, learned counsel for the respondent nos.[1] and 2 on the other hand invited our attention to the said clause (c) of 9 of the Solapur DCR and submitted that clauses (a) to (c) have to be read together and clause (c) cannot be read in isolation. He submitted that if the arguments of the petitioner that the entitlement of the respondent nos.[1] and 2 would only be 15% of the 30% that is accepted, the Municipal Corporation would not get more than 4.5% of the total commercial area allowed to be exploited by the Municipal Corporation. In support of this argument, the learned counsel, he invited our attention to the provisions of Unified Development Control & Promotion Regulations for Maharashtra State, 2020 (for short “UDCPR”) and more particularly clause 11.[1] (3) under Commercial Area along with General Planning Requirements and submitted that the respondent no.1 Corporation falls under Class “D” and thus according to the DCPR, entitlement of the respondent no.1 would be 40% of the total land to be surrendered free of costs and free from encumbrances or at least 25% of percentage of constructed amenities of total land free from encumbrances.

17. It is submitted by the learned counsel that in view of there being a mistake on the part of the respondent nos.[1] and 2, the Corporation has rightly demanded 15% of the total FSI.

18. Dr.Sathe,learned senior counsel for the petitioner in his rejoinder argument invited our attention to Note (ix) of Table 11 of UDCPR and vehemently urged that since the plan for development had already been sanctioned by the respondent nos.[1] and 2, much prior to the existence of UDCPR, the sanction of the said plan is governed by the older Solapur DCR and the same shall be continued till the completion of the construction. He submitted that the provisions of UDCPR thus pressed in service by the respondent nos.[1] and 2 would not apply to affect the facts of this case.

19. With the assistance of the learned counsel for the parties, we have perused the agreement entered into between the parties annexed at Exhibit “A” to the petition. The said agreement is followed by another document annexed at page 32 of the petition. Clause 5(e) of the said agreement provided that the Corporation has right to withhold the building permission granted to the party of the first part i.e. the petitioner herein in case of failure to hand over the possession to the Corporation as per the agreement and as per the Government Resolution issued by the Government of Maharashtra. The fact remains that for the purpose of invoking powers under 9(c), if any, by the Corporation which in this case has not been invoked, the Corporation has to satisfy that the petitioner, who had agreed to hand over possession to the Corporation of the area as per the agreement has in fact not handed over the possession of such agreed tenaments.

20. Under the said clause (c) of Regulation 9 of the Solapur DCR, the relevant provision of DCR relied upon by both the parties read thus: “PART II GENERAL PLANNING REQUIREMENTS Regulation 9. Land uses and manner of development – The user of all lands within the Municipal limits of Solapur Municipal Corporation, which have been allocated designated or reserved for certain purposes in the development plan shall be regulated in regard to type & manner of development / redevelopment according to the table no.3 hereunder. TABLE: 3 Land Uses and Manner or Development II COMMERCIAL (C) (a) (b) Dist. Centre (C[2]) Corporation or Owner Reservation of site to be converted in to zoning for same purpose and allowed to be developed on following conditions by owner / owners private entrepreneurs for the users permissible in R[1], R[2], C[1] and C[2] zones. a). The owners shall develop 40% of the total permissible FSI exclusively for residential purpose. b). The owner shall develop further 30% of FSI for residential cum commercial purpose of which 10% of development shall be allowed for commercials purpose on the ground floor in the form of shopping line or in the form of shopping centre in the residential complex. c). The owner shall develop the balance 30% FSI exclusively for commercial purpose out of which 15% of the built up commercial area at one end or side of the site shall be given to the Solapur Municipal Corporation free of cost and this commercial area shall be used by the Solapur Municipal Corporation only for the purpose related to rehabilitation of those affected by implementation of DP and or office users of other public bodies but restricted to Municipal Corporation, MSEB Water Supply and sanitation Board and MTNL. (d). The owner shall be entitled for 50% FSI of the built up commercial area handed over to Solapur Municipal Corporation.”

21. A perusal of the clauses (a) and (b) of Regulation 9, Table 3 of part II indicate that the owner is under an obligation to develop 40% of the total permissible FSI exclusively for residential purpose. Clause (b) casts an obligation upon the developer to develop further 30% FSI for commercial cum residential purpose of which 10% of development shall be allowed for commercial purpose on the ground floor in the form of shopping line or in the form of shopping centre in the residential complex.

22. A perusal of clause (c) clearly indicates that the said clause provides for not only the obligation on the owner to develop the balance 30% FSI exclusively for commercial purpose but also provides for further obligation to give to the respondent no.1, 15% of the 30% built up commercial area on one end or on a side of the site, which area can be used by the Solapur Municipal Corporation only for the purpose related to rehabilitation of those affected by the implementation of DP and / or the office users of other public bodies but restricted to Municipal Corporation, MSEB Water Supply and sanitation Board and MTNL. Clauses (a), (b) and (c) do not cast any obligation on the owner to give any portion of the area allowed to be developed under clauses (a) and (b) i.e. 40% and 30% respectively.

23. The petitioner had applied for a sanction of the plan based on the agreement and also on the basis of the relevant provisions of Solapur DCR including Table 3 – Land Uses and Manner of Development. The Municipal Corporation had entered into an agreement with the petitioner providing a specific area to be handed over by the petitioner i.e. 496.47 sq. mtrs. It is a common ground that the petitioner has already handed over the possession of the said

496.47 sq. mtrs. area out of the commercial component constructed by the petitioner under the said clause (c) to the respondent nos.[1] and 2. The respondent nos.[1] and 2 has accepted the said area without any objection. The area statement prepared by the Municipal Corporation also clearly indicates that even according to the respondent no.1, the obligation on the part of the petitioner was to hand over 15% of the 30% area of the commercial tenaments constructed by the petitioner under the said clause (c) of the Regulation 9 of Solapur DCR.

24. We shall now examine the issue where section 51 of the MRTP Act pressed in service by the Municipal Corporation in this case is without jurisdiction or not. A perusal of section 51 of the MRTP Act clearly indicates that the said provision can be invoked only in a case when the planning authority is of the view that in regards to the development plan prepared or under preparation that any permission to develop the land granted or deemed to be granted under the provisions of MRTP Act should be revoked or modified, the planning authority may, after giving an opportunity of being heard to the person concerned, against such revocation or modification, by order, revoke or modify the permissions to such extent as appears to it to be necessary. Proviso (a) of section 51 makes it clear that such an action cannot be initiated after these operations have substantially progressed or have been completed.

25. A perusal of section 51 of the MRTP Act indicates that none of the ingredients required to be satisfied under section 51 (1) read with proviso (a) are satisfied. The respondent nos.[1] and 2 have invoked section 51 on the ground that there was mistake on the part of the respondent nos.[1] and 2 in calculating the area of the commercial tenaments required to be handed over by the petitioner to the respondent nos.[1] and 2 under the said clause (c) of Regulation 9 of the Solapur DCR. Such an alleged mistake on the part of the respondent nos.[1] and 2 cannot be the basis for invocation of powers under section 51 of the MRTP Act. In our view the notice issued under section 51 of the MRTP Act thus is ex-facie without jurisdiction and contrary to the provisions of the said Act. Be that as it may, the work of the petitioner has been substantially progressed and thus the notice under section 51 could not have been issued on this ground also.

26. A perusal of the record further indicates that both the parties after interpreting the said clause (c) of Regulation 9 of Solapur DCR has accordingly calculated 15% of the 30% FSI used by the petitioner for carrying out the construction of the commercial purposes, i.e. 4.5%. Based on the said clause, the parties entered into a further agreement and quantified an actual area of 15% of the 30% required to be surrendered by the petitioner to the respondent nos.[1] and 2 out of the tenaments constructed for commercial purpose. Based on such an agreement read with the said clause (c) of Regulation 9 of Solapur DCR, the petitioner has proceeded with the construction of large number of tenaments. The construction has progressed substantially.

27. At this stage, this Court cannot allow the Municipal Corporation to take a contrary stand and to issue a notice under section 51 of the MRTP Act under the guise of the alleged mistake on the part of the respondent nos.[1] and 2. The said clause is clear and does not warrant any other interpretation as sought to be canvassed by the Corporation.

28. A Division Bench of this Court in case of Kohinoor CTNL Infrastructure Company Pvt Ltd. & Anr. (supra) has construed section 51 of the MRTP Act and has held that the intent of section 51 of the MRTP Act is to ensure that a development which would impede or be detrimental to the realisation of the purposes of a development plan that is already prepared,or even one that is under preparation, should be regulated and accordingly the powers are conferred upon the planning authority to modify or revoke the planning permissions that are already granted to develop a land. This Court has also construed provision (a) of section 51 of the MRTP Act and has held that if the work has substantial progress, no such powers under section 51 of the MRTP Act can be invoked. The principles laid down by this Court in case of Kohinoor CTNL Infrastructure Company Pvt Ltd. & Anr. (supra) apply to the facts of this case.

29. Insofar as the provisions of UDCPR pressed in service by Mr.Patil, the learned counsel for the Municipal Corporation for demanding a larger area to be surrendered by the petitioner applying for the sanction of the plan is concerned, in our view, Dr.Sathe, learned senior counsel for the petitioner has rightly invited our attention to Note IX to Chapter II of UDCPR. A perusal of the said note clearly indicates that where the permissions for development under reserved accommodations are already granted as per the earlier Regulations, the same should be continued to be available till the completion of the construction. It is a common ground that in this case, the permission was already granted for carrying out the construction in favour of the petitioner by the respondent nos.[1] and 2 under the provisions of Solapur DCR prior to the date of UDCPR coming into force. Reliance placed by Mr.Patil, learned counsel for the respondent nos.[1] and 2 on the provisions of UDCPR is thus misplaced.

30. In our view, since the notice under section 51 of the MRTP Act issued by the respondent nos.[1] and 2 is thus without jurisdiction, the respondent nos.[1] and 2 could not have issued any directives to the Registering Authority not to register any document that would be applied for by the buyers of the various units from the petitioner. The Aurangabad Bench of this Court has construed the provisions of the Registration Act and more particularly sections 34 and 35 of the Registration Act, 1908 and Rule 44(1)(v) and has held that the Registering Authority has no power to refuse to register any document on the ground that the party applying for registration has no title. The Registering Authority is not the adjudicating authority and has no power of adjudication as to whether the transaction which is the subject matter of the document lodged for registration is validly executed or not or is prohibited by any law or not. The principles laid down by this Court in case of Govind Ramling Solapure & Ors. (supra) apply to the facts of this case. In our view, the respondent nos.[1] and 2 thus could not have issued any such directives to the Registering Authority not to register any such document. This action on the part of the respondent nos.[1] and 2 also is totally without jurisdiction and without authority of law.

31. We accordingly pass the following order:i). The writ petition is allowed in terms of prayer clauses (b),

(c) and (d), which are as under:- “b).That this Hon’ble Court be pleased to issue Writ of Certiorari or any other appropriate writ, order and/or direction, in the the nature of Certiorari at it deems fit, thereby quashing and setting aside the notice u/s. 51 of MRTP Act dated 2nd September, 2022, Exhibit “L” to the Petition; (c). That this Hon’ble Court be pleased to issue Writ of Certiorari or any other appropriate writ, order and/or direction, in the nature of Certiorari at it deems fit, thereby quashing and setting aside the letter dated 19th September, 2022, Exhibit “N” to the Petition. (d). That this Hon’ble Court be pleased to issue Writ of Certiorari or any other appropriate writ, order and/or direction, in the nature of Certiorari at it deems fit thereby quashing and setting aside the letter dated 19th September, 2022, Exhibit “O” to the Petition.” ii). Rule is made absolute accordingly. No order as to costs. Parties to act on the authenticated copy of this order. (KAMAL KHATA, J.) (R.D. DHANUKA, J.)