Bombay High Court
Shri Tukojirao Krushnajirao ... vs Asst. Director Of Town Planning ... on 5 December, 2016
Bench: Ranjit More
WP 12204.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12204 OF 2015
Shri Tukojirao Krushnajirao Pawar )
Maharaja of Devas )
Age 50 years Occ.Business )
Through Constituted Attorney )
Director of Moneto Export Ltd. )
Mr. Changdeo Rambhau Ghumare )
Age 60 years. Occ.Business )
R/at Plot No.26 D'Souza Colony )
College Road, Nashik. ) ..Petitioner
Versus
1. Asst. Director of Town Planning, )
Town Planning Dept. )
Kolhapur Municipal Corporation, )
Kolhapur - 416 002. )
2. The Commissioner, )
Municipal Corporation )
for the City of Kolhapur, )
Kolhapur - 416 002. )
3. The State of Maharashtra, )
Through Principal Secretary, )
Urban Development Department, )
Mantralaya, Mumbai. ) ..Respondents
Mr. Amol P. Mhatre, advocate for the petitioner.
Mr. Suresh Madhukar Kamble, advocate for respondent Nos. 1 and 2.
Ms. R. A. Salunkhe, AGP for respondent No.3-State.
CORAM : RANJIT MORE &
ANUJA PRABHUDESSAI, JJ.
DATE OF RESERVING : 7th OCTOBER, 2016.
DATE OF PRONOUNCEMENT : 5th DECEMBER, 2016.
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Oral Judgment : (Per Ranjit More, J.)
Rule. Rule is made returnable forthwith and the petition is
heard finally by consent.
2. Heard Mr. Mhatre, learned counsel for the petitioner, Mr.
Kamble, learned counsel for respondent Nos. 1 and 2 and Ms. Salunkhe,
learned AGP for respondent No.3.
3. By this petition filed under Article 226 of the Constitution
of India, the petitioner is seeking to quash and set-aside the order dated
15th October, 2015, passed by respondent No.2- Municipal
Commissioner, rejecting the petitioner's application dated 22 nd
September, 2015, bearing No.1/1471 for necessary sanction of the
layout by amalgamating plot Nos. 5 and 6 out of the property bearing
revision survey No.1104 under Section 44 of the Maharashtra Regional
and Town Planning Act, 1966 (for short "the MRTP Act"). The petitioner
has also sought direction to respondent No.2-Municipal Commissioner
to allow the said application.
4. The petitioner was the owner of the entire revision survey
No.1104 admeasuring about H19.35R equivalent to 1,93,800 square
meters situate at A Ward, Rankala Lake at Karveer, Kolhapur. The
2nd revised development plan of Kolhapur City was sanctioned in the
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year 1999 and the same came into force in the year 2000. In this plan,
revision survey No.1104 was shown in commercial zone. The plan also
shows that this land is used for the purpose of "Shalini Cinetone". In
the year 2003, the petitioner through his power of attorney had
submitted a proposal for layout of property bearing revision survey
No.1104 admeasuring about 1,93,800 square meters. It appears that by
the time this proposal was submitted, the General Body of Kolhapur
Municipal Corporation already passed resolution No.40 dated 30 th June,
2003, resolving to initiate modification proposal under Section 37 of the
MRTP Act, in pursuance of the directives issued by the Government to
include the provisions of Regulations for Conservation of heritage
buildings/precincts/natural features along with list of heritage buildings
in its Development Control Rules, and accordingly, issued notice which
was published in Maharashtra Government Gazette, in which, "Shalini
Cinetone" was shown at serial No.8 in Grade III of the heritage
structures. The petitioner's proposal for sanction of layout of property
bearing revision survey No.1104 was tentatively approved on
26th September, 2003, and thereafter, this layout was finally approved
on 26th March, 2004. In the final sanctioned layout of revision survey
No.1104, the area under existing building which was used for "Shalini
Cinetone" and shown in hatching in the layout are carved out as plot
Nos. 5 and 6. In addition to this, 5% of the total area was kept as
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amenity space adjacent to plot Nos. 5 and 6 as per the requirement of
Rule 57 of the prevailing Bye-laws. The layout was sanctioned on a
condition that the area of plot Nos. 5 and 6 including the amenity and
open space shall be reserved for "Shalini Cinetone" and would not be
used for any other purpose. The petitioner was also directed to give
indemnity bond to comply with the said condition and, accordingly, the
petitioner has given indemnity bond on 25 th March, 2004 that the plot
Nos. 5 and 6 including the amenity and open space are to be reserved
for "Shalini Cinetone" and the same shall not be used for any other
purpose.
5. Since the Government deleted the structure "Shalini
Cinetone" from the heritage structures - Grade III while granting
sanction under Section 37(2) of the MRTP Act to the modification
proposal and list of heritage buildings/precincts/natural features, the
petitioner intended to develop the said property viz. plot Nos. 5 and 6
out of revision survey No.1104 and, accordingly, applied for permission
for development and sanction of layout of the said property under the
MRTP Act on 28th September, 2012. This proposal was kept pending by
the Corporation and, therefore, the petitioner was constrained to file
writ petition No.9355 of 2013. By an order dated 9 th October, 2013, the
Division Bench of this Court directed respondent - Corporation to decide
the petitioner's said representation on merits and in accordance with
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law. Thereafter, respondent No.2-Corportion by its order dated
16th January, 2014 rejected the petitioner's proposal. The petitioner,
thereafter, again approached this Court by filing another writ petition
No.2596 of 2014. This petition was also rejected by this Court by an
order dated 18th June, 2015 by recording the contention of the petitioner
that if there is no existing reservation in the sanctioned Development
Plan, it is for the petitioner to make an appropriate representation to the
Municipal Corporation along with necessary documents. It was also
observed that if the reservation continues, remedy of the petitioner is to
approach the Municipal Corporation or the State Government for
initiating proceedings under Section 37 of the MRTP Act. The petitioner,
thereafter, again preferred a fresh representation dated 22 nd September,
2015. This representation as stated above is rejected by the order
impugned in the petition.
6. Mr. Mhatre, learned counsel for the petitioner, submitted
that in the revised Development Plan of 1999, revision survey No.1104
was included in commercial zone and shown for the purpose of "Shalini
Cinetone". He submitted that this is not designation or reservation as
contemplated under Section 22 of the MRTP Act. He submitted that the
list of reservations given to the petitioner by the Kolhapur Municipal
Corporation under Right to Information Act , 2005, is annexed to the
petition at pages 51 to 99 and in this list, revision survey No.1104 or
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"Shalini Cinetone" is not shown as designation or reservation. Mr.
Mhatre further submitted that though the structure of "Shalini Cinetone"
was included in draft heritage list by the Corporation in the year 2003,
while granting sanction under Section 37(2) of the MRTP Act, the
structure of "Shalini Cinetione" is deleted from the heritage list - Grade
III and, therefore, despite the condition of the earlier layout and
indemnity bond, the petitioner is entitled to develop plot Nos. 5 and 6.
He submitted that this development, however, would be subject to the
provisions of Rule 57 of the Development Control Rules and the
petitioner is willing to abide by the same. He lastly submitted that the
impugned order rejecting the petitioner's proposal dated
22nd September, 2015, in the above circumstances, cannot be sustained
and is liable to be quashed and set-aside.
7. Mr. Kamble, learned counsel for respondent Nos. 1 and 2,
on the contrary, opposed the petition. He relied upon the affidavit-in-
reply filed on behalf of the respondents. He submitted that though the
structure of "Shalini Cinetone" is deleted from Heritage Structures
(Grade-III), still the said structure is "designated reservation" as per
Section 22 of the MRTP Act. Mr. Kamble relied upon the approval of
earlier layout in the year 2004 in respect of revision survey No.1104, and
particularly condition No.10 thereof, under which it is obligatory on the
petitioner to keep the said plot Nos. 5 and 6 for the purpose of "Shalini
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Cinetone" and not to use the same for any other purpose. He also relied
upon the indemnity bond given by the petitioner in the year 2004. He
submitted that the petition is devoid of any merit and the same deserves
to be dismissed.
8. Having considered the rival submissions of the respective
counsel and having gone through the petition along with its annexures
and affidavit-in-reply, we find merit in the petition. In the revised
Development Plan of 1999, revision survey No.1104 was included in
commercial zone and the same is shown for the purpose of "Shalini
Cinetone". The area of this survey number was H19 and 35R and
admittedly, the petitioner was the owner of this survey number as well
as the structure standing thereon which was known as "Shalini
Cinetone". In the year 2003, the petitioner submitted the proposal of
layout of the property bearing revision survey No.1104 and this layout
was also finally approved on 26th March, 2004. During this time, the
General Body of Kolhapur Municipal Corporation passed resolution on
30th June, 2003, resolving to initiate modification proposal under Section
37 of the MRTP Act to include the provisions of regulations for
conservation of heritage buildings/precincts/natural features along with
list of heritage buildings/precincts/natural features in the Development
Plan and notice regarding the said modification was also published in
the Maharashtra Government Gazette on 25 th September, 2003. The
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structure known as "Shalini Cinetone" was included at serial No.8 in
Heritage Sites (Grade III). It is apparent that in the light of draft heritage
list published by Kolhapur Municipal Corporation, in which, "Shalini
Cinetone" was shown at serial No.8 in Heritage Sites (Grade-III), the
petitioner's proposal for layout of revision survey No.1104 was approved
on the condition that plot Nos. 5 and 6, on which, the structure of
"Shalini Cinetone" was standing shall remain reserved for the said
purpose and the same shall not be used for any other purpose. The
petitioner was accordingly directed to give indemnity bond
ig and,
accordingly, the petitioner has also given indemnity bond on 25 th March,
2004. The Municipal Corporation, however, failed to take further steps
as contemplated under Section 37 of the MRTP Act and the Government
was constrained to appoint Deputy Director of Town Planning, Pune
Division under Section 162 of the MRTP Act to complete the procedure.
The Government thereafter followed the procedure and granted
approval to the modification proposal to include the provisions of
regulations for conservation of heritage buildings/precincts/natural
features along with list of heritage buildings/precincts/natural features
in the Development Control Rules of Kolhapur Municipal Corporation.
However, while granting sanction under Section 37(2) of the MRTP Act,
the structure of "Shalini Cinetone" is deleted from the Heritage Sites
(Grade-III). The Government dropped the structure of "Shalini Cinetone"
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from the Heritage Sites (Grade-III) on the representation dated 17 th
March, 2011, of the Corporation itself. In this representation, it is
stated that the structure of "Shalini Cinetone" consists of a shed and is in
a dilapidated state. The Corporation has also stated that as on date, no
activity related to cinema or ancillary activities are undertaken in the
said structure. The Corporation, therefore, represented to the
Government to drop the said structure from the list of heritage
structures.
9.
In these circumstances, condition No.10 imposed while
sanctioning earlier layout of revision survey No.1104 as well as the
indemnity bond given by the petitioner to the effect that plot Nos. 5 and
6 will remain reserved for "Shalini Cinetone" and the same cannot be
used for any other purpose would not continue to operate. In other
words, in view of the subsequent development viz. deletion of "Shalini
Cinetone" from the list of heritage sites (Grade-III) by the Government
while granting sanction to the modification proposal under Section 37 of
the MRTP Act, the petitioner is entitled to develop the said land viz. plot
Nos. 5 and 6 in accordance with the Development Control Rules of
Kolhapur Municipal Corporation.
10. This takes us to consider the submission of respondent-
Corporation that though the structure of "Shalini Cinetone" is dropped
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from the Heritage Sites (Grade - III), nevertheless, the said structure is
designated reservation as contemplated under Section 22 of the MRTP
Act. The Corporation, in support of this submission, relied upon the
revised Development Plan of 1999 as well as earlier approval of the
layout plan in respect of revision survey No.1104. The Corporation
submitted that in the said revised Development Plan, revision survey
No.1104 was included in commercial zone and was shown for the
purpose of "Shalini Cinetone". It is also the submission of the
Corporation that in view of Rule 57 of the Development Control Rules of
Kolhapur Municipal Corporation, two plots viz. plot Nos. 5 and 6 of
revision survey No.1104 have been reserved and their status as per
Development Plan continues to be under reservation. The submissions
though appear to be attractive, on deep scrutiny of the relevant
documents, are liable to rejected.
11. The Corporation has provided list of reservations in
Kolhapur City to the petitioner in pursuance of query under Right to
Information Act, 2005. This list is annexed to the petition at pages 51 to
99. Perusal of this list, makes it clear, that there is no reference of
revision survey No.1104 or "Shalini Cinetone". Therefore, the stand of
the Corporation that this entire revision survey No.1104 was reserved
for "Shalini Cinetone" in the revised Development Plan of 1999, does not
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stand scrutiny of law. This conclusion is supported by the fact that the
Corporation itself approved the petitioner's proposal for layout of
property bearing revision survey No.1104 in the year 2004. Had the
entire revision survey No.1104 reserved for "Shalini Cinetone" in the
revised Development Plan of 1999, the petitioner's proposal for layout of
the said property would not have been approved. The fact that the
Corporation approved the petitioner's proposal for layout plan of
property bearing revision survey No.1104 in the year 2004 itself shows
that the said property was not designated or reserved for "Shalini
Cinetone" in the revised Development Plan of 1999. It is also clear to
our mind that while approving the petitioner's proposal for layout of the
property bearing revision survey No.1104, condition No.10 to the effect
that plot Nos. 5 and 6 would be reserved for "Shalini Cinetone" and the
same would not be used for any other purpose, was inserted in the light
of inclusion of "Shalini Cinetone" in the draft heritage list, and since, the
Government in exercise of powers under Section 37 of the MRTP Act
dropped "Shalini Cinetone" from the list of heritage sites (Grade-III), the
petitioner is entitled to develop the same in accordance with the
Development Control Rules of the Kolhapur Municipal Corporation.
12. The submission of the Corporation that in view of Rule 57
of the Development Control Rules, the said two plots viz. plot Nos. 5 and
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6 of survey No.1104 along with amenity space have been reserved and
their status as per Development Plan continues to be reserved, is also
liable to be rejected. Under Rule 57, in any layout exceeding 2 hectors in
area in residential or commercial zones, where the development plan
has not provided for amenities and services, or if provided they are
inadequate, 5% of the total area shall be designated or reserved as
amenity space for provision of primary schools, sub-post officer, police
posts etc. as directed and approved by the Commissioner, and such
amenities or facilities shall be deemed to be designations or
reservations in the development plan thereafter. The petitioner's
proposal for layout of the property bearing revision survey No.1104 was
approved only after taking into consideration the provisions of Rule 57.
The approved layout plan shows that the required 5% amenity space as
per the provisions of the prevailing Development Control Rule 57 is kept
by the petitioner adjacent to plot Nos. 5 and 6.
13. So far as 5% amenity space is concerned, the petitioner is
not entitled to develop as same is deemed to be designation or
reservation in the Development Plan. However, this 5% of amenity
space has nothing to do with plot Nos. 5 and 6. The said plots cannot be
said to be amenity space. However, in the light of condition No.10, the
same were reserved for "Shalini Cinetone" and not to be used for any
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other purpose. As stated above, the condition was imposed in view of
inclusion of "Shalini Cinetone" in the draft list of heritage structures and
since the said structure is deleted by the Government while granting
final approval under Section 37(2) of the MRTP Act, the petitioner is
entitled to develop the said plots in accordance with the Development
Control Rules of the Kolhapur Municipal Corporation.
14. In the light of the discussion made hereinabove, the
impugned order dated 15th October, 2015, rejecting
ig the petitioner's
proposal dated 22nd September, 2015, cannot be sustained and the same
is, accordingly, quashed and set-aside. The respondent-Corporation is
directed to process the petitioner's application dated 22 nd September,
2015 bearing No.1/1471 afresh and take necessary action within six
weeks from today in the light of the observations made hereinabove and
in accordance with the Development Control Rules.
15. Rule is made absolute in above terms. The writ petition is,
accordingly, disposed of.
[ANUJA PRABHUDESSAI, J.] [RANJIT MORE, J.]
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