Court’s Decision
The Bombay High Court (Nagpur Bench) allowed the writ petition and quashed the communication dated 05/06/2023 issued by the Deputy Director of Town Planning, Nagpur Improvement Trust (NIT). The Court held that once the plots had been regularized under the Maharashtra Gunthewari Developments (Regularization, Upgradation and Control) Act, 2001, all prior reservations in the Development Plan ceased to apply. It directed the NIT to execute the lease deed in favour of the petitioner society for Plots 19A to 19D within four weeks.
Facts
The petitioner, a co-operative housing society, developed a residential layout on Survey Nos. 52 and 54 at Mouza Bidipeth, Nagpur, and retained Plots 19A to 19D admeasuring 11,500 sq. ft. These were handed to its President in December 2000. After the Gunthewari Act came into force in 2001, the society applied for regularization and in 2016 deposited charges, including those for removal of reservation.
The plots were amalgamated, and in November 2022 the NIT issued an amalgamation letter, an approved map, and an allotment letter, and delivered possession of the plots to the petitioner as lessee. Despite these steps, the Deputy Director of Town Planning issued communications in March and June 2023 stating that the plots remained reserved for Higher Education under the Revised Development Plan of 2001. The petitioner objected, submitting that the reservation had been lifted through earlier resolutions and that the Gunthewari Act removed such restrictions. When no relief was granted, the society filed the present writ petition.
Issues
- Whether the petitioner society’s plots, once regularized under the Gunthewari Act, continued to remain under reservation for Higher Education in the Development Plan.
- Whether the authorities were justified in refusing to execute the lease deed despite accepting charges towards regularization and removal of reservation.
- What is the legal effect of Section 5 of the Gunthewari Act on existing reservations under the MRTP Act.
Petitioner’s Arguments
The petitioner argued that once regularization under the Gunthewari Act was granted and requisite charges were paid, the Development Plan stood modified to that extent. They relied on Section 5 of the Gunthewari Act which explicitly provides that upon regularization, the provisions of the Development Plan stand relaxed or modified as required. The petitioner pointed to official documents, including a government resolution dated 17/07/2007, scrutiny forms, and notesheets of NIT from 2015 indicating that reservations were to be maintained only on open land, not constructed plots. It was contended that houses existed on the disputed plots since 1998, and thus no reservation could survive.
They relied on Bombay High Court precedents in Kailassinh Chandansinh Chowhan v. State of Maharashtra (2019) and Sanjay Mule v. NIT, Nagpur (2019), both of which recognized that regularization under the Gunthewari Act removes Development Plan reservations.
Respondent’s Arguments
The State argued that no specific relief was claimed against it and the execution of the lease deed fell within NIT’s domain. Respondents Nos. 2 to 4 (NIT authorities) contended that the land was acquired under the Sakkardara Street Scheme in 1982 and that the Revised Development Plan of 2001 reserved certain portions for Higher Education. According to them, only 20 built-up plots were de-reserved in 2015, and the petitioner’s plots were not included. They argued that the petitioner failed to produce documentary evidence showing deletion of reservation from the Development Plan and thus could not demand execution of a lease deed.
They relied on Manish Tekade v. State of Maharashtra (2012 Bom) to argue that the Gunthewari Act creates only a limited legal fiction and does not equate regularized unauthorized development with legal development under the MRTP Act.
Analysis of the Law
The Court examined Section 5 of the Gunthewari Act, which provides that upon regularization, the provisions of the Development Plan stand modified to the extent necessary. It noted that the petitioner had paid charges for both regularization and removal of reservation, and that possession had been delivered by NIT.
The Court distinguished the respondents’ reliance on Manish Tekade, clarifying that it dealt with TDR (Transferable Development Rights) and not with the question of whether a regularized plot continued to remain reserved. The legal fiction created by the Gunthewari Act was sufficient to exempt such plots from reservations, as also clarified by the 2014 amendment to Section 156 of the MRTP Act which expressly protects regularized Gunthewari development.
Precedent Analysis
- Kailassinh Chandansinh Chowhan v. State of Maharashtra (2019) – Held that once regularization under the Gunthewari Act is granted, reservations in the Development Plan cannot obstruct the use of the plot. The Court relied on this principle.
- Sanjay Mule v. NIT, Nagpur (2019) – Reaffirmed that the NIT Chairman has authority under the Gunthewari Act to delete reservations and that such regularization has overriding effect.
- Manish Tekade v. State of Maharashtra (2012 Bom) – Held that Gunthewari Act does not equate regularized development with MRTP-sanctioned development and does not permit TDR loading. Distinguished in the present case since the issue here was not TDR but the survival of reservation post-regularization.
Court’s Reasoning
The Court reasoned that:
- The petitioner had completed all formalities including payment of charges for removal of reservation and regularization.
- The NIT’s own documents admitted issuance of demand notes and acceptance of payments for removal of reservation.
- Once plots are regularized under Section 5 of the Gunthewari Act, Development Plan provisions automatically stand modified, and the reservation ceases to exist.
- The direction in Writ Petition No. 237 of 2023 restraining NIT from regularizing reserved plots was not applicable since the petitioner’s plots had already been regularized prior to that order.
- Withholding the lease deed despite acceptance of charges amounted to arbitrary denial of rights.
Conclusion
The High Court allowed the writ petition, quashed the impugned communication dated 05/06/2023, and directed NIT to execute the lease deed in favour of the petitioner society for Plots 19A to 19D within four weeks. It reiterated that once regularization under the Gunthewari Act is completed, reservations in the Development Plan no longer apply to such plots.
Implications
This ruling clarifies the scope of the Gunthewari Act, affirming that regularization has an overriding effect on Development Plan reservations. It strengthens the legal position of housing societies and individuals who have completed regularization and paid removal charges, ensuring that authorities cannot arbitrarily deny execution of lease deeds by citing outdated reservations. The judgment also distinguishes between issues of TDR and reservation removal, providing clarity on the limited but significant legal fiction created by Section 5 of the Act.
FAQs
1. Does reservation in a Development Plan survive after plots are regularized under the Gunthewari Act?
No. The Bombay High Court held that under Section 5 of the Gunthewari Act, once regularization is granted, the Development Plan stands modified and reservations no longer apply.
2. Can authorities refuse to execute a lease deed after accepting charges for regularization and removal of reservation?
No. The Court ruled that such refusal is arbitrary and illegal once the charges are paid and plots are regularized.
3. How is this judgment different from the Manish Tekade case?
In Manish Tekade, the issue was whether TDR could be loaded on regularized Gunthewari plots. The Court refused TDR benefits. In the present case, the issue was reservation removal, where the Court held regularization removes reservations.
