Bombay High Court
Sanjay S/O Kamalkishore Agrawal vs The Planning Authority, The ... on 26 July, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4003 OF 2014
PETITIONER:- Ashok s/o Kamalkishore Agrawal, aged 50
years, Occpn. Business, resident of Kirti
Nagar, Gorakshan Road, Akola, Taluka and
District Akola.
...VERSUS...
RESPONDENTS :- 1) The Planning Authority, i.e. The
ig Commissioner of Municipal Corporation,
Akola.
2) the Incharge Town Planner, Shri Bute,
Municipal Corporation, Akola.
WRIT PETITION NO. 4012 OF 2014
PETITIONER:- Sau. Seema w/o Mahendra Agrawal, aged
34 years, Occpn. House wife, resident of Kirti
Nagar, Gorakshan Road, Akola, Taluka and
District Akola.
...VERSUS...
RESPONDENTS :- 1) The Planning Authority, i.e. The
Commissioner of Municipal Corporation,
Akola.
2) the Incharge Town Planner, Shri Bute,
Municipal Corporation, Akola.
WRIT PETITION NO. 4014 OF 2014
PETITIONER:- Sanjay s/o Kamalkishore Agrawal, aged 43
years, Occpn. Business, resident of Kirti
Nagar, Gorakshan Road, Akola, Taluka and
District Akola.
...VERSUS...
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RESPONDENTS :- 1) The Planning Authority, i.e. The
Commissioner of Municipal Corporation,
Akola.
2) the Incharge Town Planner, Shri Bute,
Municipal Corporation, Akola.
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Mr. S. C. Mehadia, counsel for the petitioners.
Mr. S.V.Sohoni, counsel for the respondent No.1.
Mrs. I.L. Bodade, counsel for the respondent No.2.
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CORAM : SMT. VASANTI A NAIK &
ig MRS.SWAPNA JOSHI, JJ.
DATED : 26.07.2016
O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.)
Since the issue involved in these writ petitions is identical
and similar orders passed by the Municipal Corporation are challenged
therein, they are heard together and are decided by this common
judgment.
Rule. Rule made returnable forthwith. The writ petitions are
heard finally with the consent of the learned counsel for the parties.
By the orders passed by the concerned respondents under
the Maharashtra Land Revenue Code, the petitioners were granted
permission to convert their agricultural land to non-agricultural use.
According to the petitioners, the petitioners submitted the plans for
construction of the buildings on the sites that were permitted to be put
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to non-agricultural use, in the year 2008 and the Municipal Corporation
granted the necessary sanction. Buildings were constructed by the
petitioners on the non-agricultural land. On 04.06.2013, the Municipal
Corporation demolished the compound wall on the eastern side of the
buildings of the petitioners. A suit for injunction was filed by the
petitioners before the trial Court and the trial Court directed the
respondent-Corporation, by a mandatory injunction, to reconstruct the
compound wall. In the meanwhile, on 27.09.2013, the respondent
-Corporation served the notice on the petitioners, under section 51 of
the Maharashtra Regional and Town Planning Act, 1966. The notice
was replied to, by all the petitioners. The petitioners were called for
personal hearing on 01.10.2013 but the hearing did not take place on
the said date. The hearing was then scheduled on 24.12.2013 and the
notice informing the petitioners about the next date of hearing was
posted by the Municipal Corporation on 23.12.2013 and the same was
received by the petitioners on 27.12.2013, as a result of which the
petitioners could not remain present before the Municipal Corporation
for personal hearing. Without informing the subsequent date of hearing
to the petitioners, by the impugned orders, the respondent-Corporation
cancelled the orders, sanctioning the plans of the petitioners, in the year
2008. The impugned orders are challenged by the petitioners in these
petitions.
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Inter alia, it is submitted on behalf of the petitioners that the
impugned orders are liable to be set aside as they are passed in sheer
violation of the principles of natural justice. It is submitted that though
the Act provides for personal hearing, the petitioners were not provided
with an opportunity of hearing. It is stated that the hearing was fixed
on 22.11.2013 and the notices of hearing were received by the
petitioners on 27.12.2013. It is stated that if the petitioners received
the notice after 24.12.2013, it was well-nigh impossible for the
petitioners to attend the hearing on 24.12.2013. It is stated that after
the said date, the matter was not fixed for hearing on any subsequent
date and without hearing the petitioners, the impugned orders are
passed. It is further stated that the impugned orders could not have
been passed by the Town Planner of the Akola Municipal Corporation
as the Commissioner of the Akola Municipal Corporation would be the
competent authority to pass the orders.
Shri S. V. Sohoni, the learned counsel for the respondents,
has supported the impugned orders. It is, however, not disputed that
the petitioners were not actually heard by the Corporation before the
impugned orders were passed. It is also not disputed that the notices in
respect of the scheduled hearing on 24.12.2013 were received by the
petitioners on 27.12.2013. It is also admitted that the matter was not
fixed for hearing after 24.12.2013. It is, however, submitted by the
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learned counsel, by referring to the second affidavit-in-reply filed on
behalf of the respondent-Authorities that the impugned orders are
passed, after considering the written submissions tendered by the
petitioners before the respondent-Authorities, on 16.01.2014. The
learned counsel for the respondents has stated that the entire
proceedings were conducted by the Commissioner of the Corporation
himself and he has also signed the order-sheet, however, the order was
passed by the Town Planner. It is stated that if this Court quashes and
sets aside the impugned order on the ground that hearing was not
afforded to the petitioners, the matters would be decided and the orders
would be passed by the Commissioner himself.
On hearing the learned counsel for the parties, we find that
the impugned orders are rather indefensible and cannot be sustained.
Admittedly, the petitioners were not heard either on the first date of
hearing i.e. 01.10.2013, or on the second date of hearing on
24.12.2013. On 01.10.2013 the hearing did not take place and the
petitioners were informed about the second date of hearing i.e.
24.12.2013 vide communications-notices that were received by the
petitioners on 27.12.2013. Since the petitioners received the notices on
27.12.2013, they could not remain present for the hearing on
24.12.2013. It was incumbent on the part of the Corporation-
Authorities to have fixed the date of hearing after 24.12.2013 and
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should have decided the matter only after granting an opportunity of
hearing to the petitioners. It is admitted by the respondents that after
24.12.2013, the matter was not fixed for hearing at all.
Since the impugned orders are passed without giving an
opportunity of hearing to the petitioners, we partly allow the writ
petitions. The impugned orders are quashed and set aside. The
respondents may pass appropriate orders under Section 51 of the
Maharashtra Regional and Town Planning Act, after hearing the
petitioners. The petitioners undertake to appear before the Municipal
Commissioner of the Corporation on 09/08/2016 so that issuance of
notice to the petitioners could be dispensed with. Rule is made absolute
in the aforesaid terms with no order as to costs.
JUDGE JUDGE
SAHARE & KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 30/07/2016
P.A.to Hon'ble Judge
