WP 4722 of 2019 - J.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION NO. 4722 /20 19 PETITIONER : Pranali Ravindra Puttewar, Aged about 38 years, Occ.: Business, R/o House No.35, Nirmal Nagri, Umred Road, Nagpur-24. ...VERSUS... RESPONDENT S : 1. Union of India, Through its Secretary, Department of Urban Housing and Poverty Allevation, New Delhi. 2. State of Maharashtra, through its Secretary, Department of Housing & Urban Affairs Mantralaya, Mumbai-32. 3. Maharashtra Real Estate Regulation Authority (MahaRERA), through its Chairman, 3rd Floor, A-Wing, Slum Rehabilitation Authority, Administrative Building, Anant Kanekar Marg, Bandra (E), Mumbai-400051. 4. Nagpur Municipal Corporation, Through its Commissioner, Nagpur. 5. Nirmal Ujwal Credit Co-operative Ltd. (Multistate), through its Secretary, Pramod s/o Natthuji Manmode, aged about 53 years, Occu.: Business, R/o 193, Main Road, Nandanwan, Nagpur-440009. 6. The Executive Engineer, Maharashtra State Electricity Distribution Company Ltd., Umred Road, Sub-Station, Nagpur-440024. 2025:BHC-NAG:4459-DB WP 4722 of 2019 - J.odt 2 ---------------------------------------------------------------------------------------------------------- Mr. I.S. Charlewar, Advocate for Petitioner. Mr. N.S. Deshpande, DSGI for respondent No.1 Mr. P.P. Pendke, AGP for respondent No.2 Mr. S.P. Deshpande, Advocate for respondent No.3 Mr. A.M.Quazi, Advocate for the respondent No.4. Mr. S.K.Mishra, Sr. Advocate a/b Mr. P.B. Patil, Advocate for respondent No.5. Mr. S.V. Purohit, Advocate for the respondent No.6. ---------------------------------------------------------------------------------------------------------- CORAM : AVINASH G. GHAROTE & ABHAY J. MANTRI, JJ. DATE 29.04.2025 ORAL JUDGMENT : (PER : AVINASH G. GHAROTE, J.) 1. Heard. 2. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned Counsel for the parties. 3. The petition seeks a direction, against the respondent No.4, Nagpur Municipal Corporation, to take appropriate action against the respondent No.5 and to remove the unauthorized construction as indicated in the notice dated 25/07/2017, issued by the respondent No.4. That is the only relief which remains for consideration in this petition, in view of the order dated 17/12/2024, passed by this Court, which records the statement of the learned Counsel for the petitioner, WP 4722 of 2019 - J.odt 3 that the complaint filed by the petitioner with the respondent No.3 under Section 59(2) of the Real Estate (Regulation and Development) Act, 2016 (for short hereinafter “RERA Act, 2016”) has already been decided on 04/01/2019, by imposing a penalty of Rs.6 Crores on the respondent No.5, which is presently in challenge before the Hon’ble Apex Court, on account of which, the grievance raised in the petition in that regard did not survive. 4. The notice dated 25/07/2017 (pg.61), was issued by the respondent No.4, to the respondent No.5 in which the following illegalities were indicated. ^^vuqlqph** tfeuhP;k rif”kyklg vuf/kd`r fodklkps fooj.k (A) 24.00 eh-:afnP;k jLR;kr dsys cka/kdke (ERD FLOOR) (i) bZysDVªhd lcLVs”ku = 16.10 x 12.60 = 202.66 m2 (ii) VªkUlQkWjej nkHkksG QkÅaMs”ku %& 2 Nos. x 1.50 x 2.00 = 6.00 m2 (iii) okWVj fVªVesUV IykUV = 10.30 x 6.80 + 7.30 x 3.00 = 91.94 m 2 300.80 m2 (B) bZekjr Ø-B3 ef/ky 7 O;k etY;kps ok<ho cka/kdke (i) 62.996 x 8 Flats = 503.968 m2 (A) + (B) 300.80 + 503.968 = 804.768 m2” It is material to note, that out of the above illegalities, it is an admitted position on record, that the one indicated in para-B of the WP 4722 of 2019 - J.odt 4 above statement, which relates to new construction on the 7th floor of the Building No.B-3 made by the respondent No.5 stands regularized by the respondent No.4. 5. The respondent No.5 had floated a scheme of development in respect of the land of Khasra Nos.15/1, 16/1, 18/1, 2 and 20 of Mouza Harpur, Tahsil and District Nagpur. The respondent No.5 had submitted building plan for sanctioning a group housing scheme, to the respondent No.4, which came to be sanctioned vide Building Permit No.1604/TP/E/NMC/1578, dated 01/09/2008 (pg.92). The plan sanctioned indicated a 24 meters wide Development Plan Road inside the eastern boundary of the above said land, in which, there was a compound wall, which was proposed to be demolished. This is apparent from the perusal of the plan, the sanctioning of which building plan on 01/09/2008, is not disputed by the respondent Nos.4 and 5. 5.1. The respondent No.5, thereafter had submitted a revised plan for sanction, which came to be sanctioned, on 04/08/2012. A further layout plan came to be submitted for sanction by the respondent No.5, which came to be sanctioned on 09/12/2019 (pg.93), however, this second revised sanction plan dated 09/12/2019 (pg.93), does not WP 4722 of 2019 - J.odt 5 show the existence of the 24 meters wide development plan road inside the eastern boundary of the layout of the respondent No.5. What is shown instead thereof, are three structures therein, as indicated in the notice dated 25/07/2017 (pg.62), which are (1) electric sub-station, (2) transformer Dabhol foundation and (3) water treatment plant. This would make it apparent, that the area of 24 meters wide DP road instead of being left open, has been taken over and made use of by the respondent No.5, for the three structures as indicated in the notice dated 25/07/2017. 5.2. Mr. Mishra, learned Senior Counsel for the respondent No.5, does not dispute the above two sanctioned plans. The learned Senior Counsel however, submits, that there is no commercial exploitation of the said DP road land, as what is constructed therein, are structures, which are for benefit of the residents. We are not impressed with this argument for the reason, that an area, which is reserved in the sanctioned development plan, for Nagpur for being used as a 24 meters wide road, in terms of the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short hereinafter “MRTP Act”), cannot be diverted from the said use, unless the development plan is got modified, in terms of Section 37 of the MRTP Act, or the WP 4722 of 2019 - J.odt 6 reservation gets lapsed, in terms of Section 126/127 of the said Act. That this has not been done, is not a disputed position, in view of which, the user of the land reserved for 24 meters DP road cannot be permitted to be diverted for the benefit of the respondent No.5 or the residents of the locality/township, which the respondent No.5 has constructed. 5.3. Mr. Mishra, learned Senior Counsel further relies upon the provisions of section 5 of the Maharashtra Gunthewari Developments (Regularisation, Upgradation and Control) Act, 2001 (hereinafter referred to as the “Gunthewari Act, 2001” for the sake of brevity), to contend, that the provisions of the development plan would stand modified or relaxed, as may be required, in terms of the aforesaid provision and therefore, no action can be taken in this regard. What is however necessary to be noted, is that the sanction of the layout/building plans of the respondent No.5, are not under the provisions of the Gunthewari Act, 2001, which is apparent from a perusal of both the plans, dated 01/09/2008 and 09/12/2019 (Pgs.92 and 93) as there is no endorsement therein, that they have been sanctioned in terms of the provisions of the Gunthewari Act, 2001. Though Mr. Mishra, learned Senior Counsel invites our attention to the WP 4722 of 2019 - J.odt 7 communication dated 12/07/2005 (pg.142) to contend, that the aforesaid two layout plans, have been sanctioned under the Gunthewari Act, 2001, that however, is a factually incorrect position, as the communication dated 12/07/2005 (Pg.142), relates to Khasra Nos.53, 57/1, 58 of Mouza Dighori, whereas the layout plans, which are referred to above at pages 92 and 93, relate to, a layout on Khasra No.20, 18(part), Mouza Harpur, Umrer Road, Nagpur and therefore, the communication dated 12/07/2005 has no relevance or bearing whatsoever, upon the matter in issue. The plea therefore, seeking to take benefit, of the Gunthewari Act, 2001 is bereft of any merits and is rejected. 5.4. Mr. Mishra, learned Senior Counsel then relies upon the provisions of Section 53(3) of the MRTP Act, to contend, that it creates an embargo, from taking any action, in terms thereof, unless the provisions of Section 44 of the MRTP Act are exhausted. We, however, are not impressed by this argument, for the reason, that Section 53(3), merely states, that if any person is aggrieved by a notice under Section 53(1) requiring removal of unauthorized development, it is open for such person to apply for permission under Section 44 for retention. However, in the instant matter, no such application has been made, and WP 4722 of 2019 - J.odt 8 even otherwise, was not permissible to be made, as the provisions of Section 44 would not be applicable, for retention of any construction, made upon lands reserved under the development plan. The contention therefore, is rejected. 5.5. Mr. Mishra, learned Senior Counsel then submits, that since there are more than 700 families residing in the township, any direction to remove water treatment plant, electric sub-station and transformer would lead to disrupting the life of the 700 families and therefore, in view of larger public interest, the action of removing the construction made on the DP road ought not to be taken. In our considered opinion, it was necessary for the respondent No.5, to ensure, that the 24 meters wide DP road was kept open and after misusing the same by encroaching it and making construction as indicated in the notice dated 25/07/2017, it is not open for the respondent No.5 to hide behind the 700 families residing there and seek non-implementation of the notice dated 25/07/2017. 5.6. In this context, it would be necessary to note, that the respondent No.5 is not as gullible, as is being posed. This is so for the reason, that when the respondent No.5 had applied for the second WP 4722 of 2019 - J.odt 9 revised sanction, it was specifically aware, about the above illegal construction on the 24 meters wide DP road and the necessity to remove it. When this was pointed out, to the respondent No.5 by the NMC/ respondent No.4 by its communication dated 28/01/2019 bearing No.822, (Pg.69), the respondent No.5, through its secretary had submitted on 21/11/2019 an undertaking in the form of an affidavit (Annexure-R-4-B, Pg.71), whereby it had undertaken to remove the construction made upon the 24 meters wide DP road in the eastern portion of the layout and handover vacant possession of the same to the respondent No.4-NMC. What was asked for in the letter dated 21/08/2019 by the respondent No.4/NMC and what was assured by the respondent no.5, in undertaking given, was in the following terms: Sr. No. Statement as contained in the letter dated 21/08/2019 by the NMC/ respondent No.4. Undertaking of the respondent No.5 as contained in the undertaking dated 21/11/2019. 01. 5- vfHkU;kle/khy iqosZdMhy 24-00 eh- :an Mh-ih-jksM e/khy jLR;kvarxZr iq.kZ tkxspk cks>k fogjhr rkck o gLrkarj.k e-u-ik- ps LFkkoj foHkkxkdMs dj.ks ca/kd- kjd jghy- lanfHkZr i=krhy vV Ø-5 uqlkj%&vfHkU;kl e/khy iqosZ dMhy 24-00 eh- :an Mh-ih-jksM e/khy jLR;k varxZr iw.kZ tkxspk cks>k fojghr rkck o gLrkarj.k ukxiqj e-u-ik-ps LFkkoj foHkkxkdMs ns.ks izfrKkFkhZ Eg.kwu eyk ca/kudkjd jkfgy ;k ckcrps vkEgh vki.kkal la;qDr dkxni=koj cka/kdke udk’kk eatwjhiwohZ ukxiqj e-u-ik-P;k uxj jpuk foHkkx egkuxj ikfydk rQsZ vko’;d dk;Zokgh dj.;kr ;koh- WP 4722 of 2019 - J.odt 10 02. 6- vfHkU;kle/;s fcuk eatqjh fo:/n dsysY;k cka/kdke rlsp 24-00 eh- :an :an Mh-ih-jksM oj dsysY;k bysDVªhd VkWUlQkjeZj STP VWd bR;knh ps cka/kdke Lo[kpkZus dk<wu Vkd.;kph vkiyh ¼vtZnkjkph½ jkghy- vfHkU;klkrhy [kqY;k tkxse/;s dsysys eanhjkps cka/kdkekckcr laiq.kZ tckcnkjh vtZnkjkph vkgs- /kkfeZd LFkGkckcr x`g foHkkxkph ijokuxh vko’;d vkgs- ;kpk lfoLrj@ foLr`r vkjk[kMk lknj dj.;kr vkysyk ukgh- R;keqGs ;k cka/kdkekpk eatqjhdjhrk fopkj dj.;kr vkysyk ukgh- lanfHkZr i=krhy vV Ø-6 uqlkj%& vfHkU;klk laca/khy fouk eatqjh dsysys cka/kdke rlsp 24-00 eh- :an Mh-ih- jksM oj vlY;kl] vlysys bysDVªhd VªkWUlQkjeZj STP VWd bR;kfn cka/kdke vlY;kl rs Lo[kpkZus dk<wu Vkd.ks vkeph tckcnkjh jkfgy ;kph geh nsrks- 03. 8- udk’kkr fioG;k jaxkuh n’kZfoysys cka/kdke Lor% Lo[kpkZus ikMwu Vkd.;kdjhrk tckcnkjh vtZnkjkph jkghy- lanfHkZr i=krhy vV Ø-8 uqlkj%& udk’kkr fioG;k jaxkus n’kZfoysys cka/kdke vkEgh vkeP;k Lo[kpkZus ikMwu Vkd.;kph tckcnkjh ?ksr vkgs ;kph vkEgh geh nsrks- 5.7. A perusal of the above table would indicate, that the respondent No.5, was fully aware regarding the existence of the 24 meters DP road as well as the fact, that it had been illegally occupied by it, by constructing electric transformer, Sewage Treatment Plant (STP) and electric substation etc., which it had undertaken to remove as a condition for the sanction awarded to the second revised layout plan. WP 4722 of 2019 - J.odt 11 The respondent No.5, therefore, cannot now contend that it was unaware of the aforesaid position or that the construction of the transformer/water treatment plant and electric substation were not on the DP road. 5.8. Mr. Purohit, learned counsel for respondent No.6-MSEDCL rightly contends, that it had nothing to do with the sanction, and since the respondent No.5, had shown the location for erection of the sub- station and the transformer, had called upon the respondent No.5 to make payment of the requisite charges, which having been deposited by the respondent No.5, it had erected the sub-station and transformer at the cost and risk of the respondent No.5 and therefore, was not responsible in the matter, regarding violation of the terms of the sanction or the respondent No.5 gobbling up the 24 meters wide DP road. He, however, submits that as of date, since there were four feeder lines going out from the sub-station, it would be impossible to relocate it, for which, he invites our attention to the communication dated 28/02/2020. In our considered opinion, any difficulty in shifting the sub-station or the transformer cannot come in the way of the law taking its course and correcting an illegality. Though an expression of helplessness is being portrayed by the respondent No.6, in our WP 4722 of 2019 - J.odt 12 considered opinion, shifting of the substation/transformer/water treatment plant is not an impossibility, but would only require greater effort and expenses by the respondent No.5, with the assistance of the personnel of the respondent No.6. We, therefore cannot condone the illegality committed by the respondent No.5 of making illegal construction of substation/transformer/water treatment plant on the land of 24 meters wide DP road, as it would be setting an absolutely bad precedent, on the basis of which, builders would have a free hand to present a fait accompli, after having committed an illegality. 6. In view of the above discussion, we allow the writ petition, by directing the respondent No.5 to remove the construction of the substation/transformer/water treatment plant and all other constructions, which may have been made by respondent No.5 on the area of 24 meters wide DP road at its costs and expenses. The same shall be done, within a period of four months from today. The respondent No.6, shall provide whatever assistance, as may be required, in this regard, by the respondent No.5. In case, this is not done, then it shall be the obligation of the respondent No.4 to do, within a reasonable time therefrom. WP 4722 of 2019 - J.odt 13 7. Considering the conduct of the respondent No.5 in gobbling up 24 meters DP road, we deem it a fit and proper case to impose a costs of Rs.5,00,000/- (Rupees Five Lakhs Only) upon the respondent No.5, the cost to be paid to the Raman Science Centre and Planetarium, Nagpur within a period of one week from today. The respondent No.5 is permitted to pay the cost to the said Association by NEFT/RTGS or any other online mode of payment, permissible in law. The Bank details of the said Raman Science Centre, Nagpur are as under :- “Name : - Raman Science Centre and Planetarium, Nagpur Account No.:- 0306101022235 Name of Bank : CANARA BANK Branch Name & Address :- Sitabuldi Branch, Nagpur IFSC Code :- CNRB0000306, MICR Code : 440015002” 8. Rule is made absolute in the aforesaid terms. (ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.) KHUNTE, SPS / Wadkar, SPS