Bombay High Court
Maheshkumar Raguvirprasad Pande vs The Commissionar, Nmc Nagpur & ... on 9 June, 2016
Bench: B.P. Dharmadhikari
wp30.05 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 30 OF 2005
Maheshkumar s/o Raghuvirprasad
Pande, aged about 64 years,
occupation - Profession, r/o Pandey
Layout, Khamla, Nagpur. ... PETITIONER
Versus
1. The Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
2. The Chairman,
Nagpur Improvement Trust,
Station Road, Sadar, Nagpur.
3. State of Maharashtra,
through the Secretary,
Urban Development,
Mantralaya, Bombay - 32. ... RESPONDENTS
Shri A.K. De, Advocate for the petitioner.
Shri Amit Kukday, Advocate for respondent No. 1.
Mrs. A.R. Kulkarni, AGP for respondent No. 3.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JUNE 09, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
We have heard Shri De, learned counsel for the
petitioner, Shri Kukday, learned counsel for respondent No. 1
and Mrs. Kulkarni, learned AGP for respondent No 3. Nobody
appears for respondent No. 2.
2. The Building Plan submitted by the petitioner for
construction of an Apartment scheme is still under
consideration. Writ Petition came to be filed questioning a
notice of demolition dated 21.12.2004 issued by Respondent
No. 1 under Section 53 of the Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as MRTP Act).
3. Shri De, learned counsel submits that initially when
the petitioner submitted the Building Plan on 05.10.2001, a
demand of Rs.1,300/- was raised and that amount was paid on
06.10.2001. An additional demand of Rs.2,71,997/- was
thereafter raised on 28.06.2002 and that amount was also paid
on 03.07.2002. He contends that Building Plan needed to be
rejected within a period of 60 days thereafter otherwise it is
deemed to have been sanctioned. Hence, after waiting for
reasonable time, on 21.04.2003, the petitioner made a
representation that as his Building Plan was not being
considered and was not rejected, presuming deemed sanction,
he would undertake construction. On 06.06.2003, he also
sought a Building permit. To avoid further complications, Writ
Petition No. 536 of 2004 was filed before this Court for
declaration of deemed sanction and for securing Building
permit. This writ petition was disposed of on 26.10.2004, after
recording statement of Respondent No. 2 - Corporation that the
Building plan would be considered within a period of two
weeks. The petitioner thereafter on 22.11.2004 made a
detailed representation and then received the impugned notice
dated 21.12.2004. The notice has been stayed by this Court on
11.01.2005 while issuing notice in the matter.
4. This Court has passed various orders in present writ
petition. On 27.04.2005, while issuing rule in the matter, this
Court directed the respondent - Nagpur Improvement Trust to
consider the case of the petitioner in accordance with the
Building Bye-laws and Rules, treating two Survey numbers as
one plot for the purpose of granting sanction as per the
Building Bye-laws and Rules, which were in force on the date
on which the petitioner submitted the Building Plan for
sanction. On 04.01.2006, Respondent No. 2 - Nagpur
Improvement Trust rejected the plan holding that 15% open
space was not left. The petitioner then approached this Court
in Writ Petition No. 887 of 2006 and this Court found that the
grievance ought to have been made in Writ Petition No. 30 of
2005 itself. Hence, Writ Petition No. 887 of 2006 was disposed
of on 12.10.2006 as withdrawn. While disposing of writ
petition, this Court noted that the proceedings in relation to
said Building plan were pending before the State Government
at the instance of the present petitioner.
5. Shri De, learned counsel submits that the State
Government has directed Nagpur Municipal Corporation to
look into the grievance of the petitioner as per its
communication dated 30.06.2008. He invites our attention to
the order dated 13.06.2006 passed in Writ Petition No. 30 of
2005 and submits that this direction of the State Government
dated 30.06.2008 is still not implemented. According to him,
because of this direction, the earlier notice for demolition or of
rejection of Building plan are eclipsed and till the building plan
of the petitioner is reconsidered by Respondent No. 1, no
further action can be taken. He has invited our attention to the
amended prayer clause in writ petition to urge that the said
plan can be directed to be considered in time bound manner by
the Nagpur Municipal Corporation.
6.
Shri Kukday, learned counsel does not dispute this
development. He, however, points out that the proceedings
taken to the Government after issuance of notice under Section
53 of the Maharashtra Regional and Town Planning Act, 1966,
by Respondent No. 1 are not appeal under Section 47 thereof.
He submits that he is still awaiting instructions about
compliance with the directions issued by the State Government
on 30.06.2008.
7. Mrs. Kulkarni, learned AGP submits that this Court
in Writ Petition No. 887 of 2006 has taken note of the
contention of the Nagpur Improvement Trust that against the
notice under Section 53, the remedy is available to the
petitioner. In Writ Petition No. 30 of 2005, the fact that the
petitioner has approached the State Government is again taken
note of and time of four weeks was given to Nagpur
Improvement Trust to take a decision. She points out that even
in the communication dated 30.06.2008, the State Government
has expressly mentioned that if the Nagpur Municipal
Corporation needed any clarification in the matter, it can
obtain it in the present writ petition.
8. The facts above show that initially present writ
petition was filed and in terms of orders dated 27.04.2005
passed in this writ petition while issuing Rule in the matter, the
NIT was to consider the Building plan as per Bye-laws and
Rules stipulated therein. On 04.01.2006, the plan has been
rejected as 15% open space has not been left. It is also
observed that the petitioner has not submitted the corrected
building plans with F.S.I. - 1.25 and 15% open space as per
D.C.R. This communication was assailed in Writ Petition No.
887 of 2006. After finding that the decision taken by the NIT
was fall out of the directions issued in Writ Petition No. 30 of
2005, the petitioner was permitted to take out Civil Application
in Writ Petition No. 30 of 2005. The orders on that Civil
Application in Writ Petition No. 30 of 2005 were passed on
13.06.2006. The petitioner was permitted to pursue the matter
filed by him with the State Government. In view of these
developments, Writ Petition No. 887 of 2006 was withdrawn on
12.10.2006.
9. In the matter before it, after noticing the orders of
this Court in the present writ petition, the State Government
had asked the Nagpur Municipal Corporation to consider the
plan of the petitioner. In this communication dated
30.06.2008, the State Government has expressly pointed out
the contention of the petitioner that as area of plot was in
excess of 1000 square meter, FSI of 1.25 was available and as
area was less than 4000 square meter, the requirement of
leaving 15% open space was not applicable. While issuing this
direction to NMC, the State Government has also expressly
observed that in case of any difficulty or confusion, the NMC
can approach this Court in Writ Petition No. 30 of 2005.
10. Shri De, learned counsel, during arguments has
stated that as Building plan itself is not sanctioned, the
apartment constructed cannot be put to any use and cannot be
disposed of. He, therefore, urges this Court for time bound
consideration of his case.
11. Taking overall view of the matter, when neither
Nagpur Municipal Corporation nor Nagpur Improvement Trust
has approached this Court and has sought clarification, it is
obligatory for NMC to consider the request of the petitioner as
contained in the communication of the State Government dated
30.06.2008. The said communication of the State Government
filed as document No. 10 in present writ petition shall be
complied with by Respondent No. 1 - Nagpur Municipal
Corporation, within a period of three months from today.
12. Needless to mention that till then no action for
demolition shall be taken against any part of construction
raised by the petitioner and the petitioner shall also maintain
status quo as on today in relation to said structure.
13. With these directions, we dispose of the present
writ petition. Rule discharged. However, in the facts and
circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
ig ******
*GS.
