Bombay High Court
Pune Municipal Corporation vs Keshav Antumal And Ors on 21 September, 2017
Bench: S.C. Dharmadhikari
ASWP702.06.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 702 OF 2006
Pune Municipal Corporation, ]
Shivaji Nagar, Pune - 5. ] ... Petitioners
Versus
1 Shri Keshav Antumal ]
2 Shri Ram Megha Ram ]
3 Sheela Arjundas ]
4 Seeta Daulat Ram ]
5 Kholi Bai Khoop Chand ]
6 Jayabai Megha Ram ]
All though their Power of Attorney ]
Holder i.e. Shri Altaf Maniyar residing ]
at Pune c/o. Space Designers & Group ]
& Sunil Vartak Associates, 322, ]
Arora Tower, Pune - 411 001 ]
7 The State of Maharashtra, through ]
the Chief Secretary, and the Hon'ble ]
Minister, Urban Development ]
Department, Government of ]
Maharashtra, Mantralaya, ]
Mumbai - 400 032. ] ... Respondent
Mr. Abhijit P. Kulkarni for the Petitioner.
None for the Respondent Nos.1 to 6.
Mr. A.I. Patel, AGP, for the Respondent No.7-State.
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ASWP702.06.doc
CORAM : S.C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
THURSDAY, 21ST SEPTEMBER, 2017
ORAL JUDGMENT : [Per S.C. Dharmadhikari, J.]
1 By this petition under Article 226 of the Constitution
of India, the Municipal Corporation challenges the order passed
by the State Government under section 47 of the Maharashtra
Regional and Town Planning Act, 1966 (for short "The MRTP
Act").
Survey No.550, Hissa No.4, situate at Gultekdi, Pune,
admeasuring about 8 acres and 1 guntha. The land, though
forming part of Town Planning Scheme No. III, sanctioned on 1 st
April, 1943, was not allotted a final plot number as it was a Nala-
bed. It is claimed that the land is surrounded towards North by
an aqueduct of canal, towards South by bridge of T.P.S. Road,
towards East by compound wall on the boundary of Pune
Cantonment Board and towards the West by compound wall of
Mira Housing Society. The land is a low lying area, about ten feet
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deep from the road level and thus does not have direct access.
4 Respondent Nos.1 to 6 submitted an application
seeking development permission under section 44 of the MRTP
Act for carrying on construction on the land. The Municipal
Commissioner, after considering the record, refused this
development permission. This order was passed on 31 st
December, 1999. This order records that the permission cannot
be granted for the above reasons and particularly because of the
opinion of the Municipal Commissioner. The petitioner claims
that this rejection was communicated as per Rule 6.7.1 of the
Development Control Rules to the respondents. There was also
correspondence with the Architect of respondent Nos.1 to 6.
5 Being aggrieved and dissatisfied with the rejection of
the development permission, the respondent Nos.1 to 6 invoked
section 47 of the Maharashtra Regional Town Planning Act,
1966, by filing an appeal to the State Government. The petitioner
resisted this appeal by filing its reply. However, the State
Government, on 28th July, 2004, allowed this appeal directing the
petitioner to initiate action for granting development permission
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ASWP702.06.doc
by taking recourse to Rule 11.1 of the Development Control Rules
and further considering building permission granted to final plot
No.435A, which is situate opposite the respondent No.1 to 6's
property by diverting the Nala therein.
6 We have heard Mr. Kulkarni appearing for the
petitioner - Corporation. Respondent Nos.1 to 6 are absent,
though duly served. The learned Assistant Government Pleader
appears for respondent No.7.
7 This petition was admitted by this Court on 16 th
February, 2006 and there was an ad-interim order in terms of
prayer (c). Thus, the effect, execution and operation of the
impugned order has been stayed during the pendency of this
petition.
8 We have not found from the record any attempt being
made by the contesting respondent Nos.1 to 6 to seek a variation
or setting aside of this interim order. That order has been stayed
from 2006. Prior to that also, the effect was not given to this
order.
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ASWP702.06.doc
9 Even otherwise, from a perusal of the order passed at
page 45 and impugned in the petition, we find that the State
Government had before it, not only the appeal of the respondent
Nos.1 to 6, but the remarks and opinion of the petitioner -
Municipal Corporation and the Town Planner. The specific
remark or opinion of the Town Planner is that the land is in Nala-
bed. It is pointed out that the development plan road is also
passing through the property. The various other objections have
been pointed out.
10 It was specifically pointed out that there is no access
and directly to this property. The objection of the respondent
Nos.1 to 6 that the plot of land is not included in the Town
Planning Scheme is also incorrect. It has been also pointed out
that if such permissions are granted, that would be not conducive
to proper development. It would rather frustrate and defeat the
object of a planned development. In paragraph 6 of the
impugned order, the Appellate Authority has clearly referred to
these objections. It has been pointed out that the whole portion is
part of a Nala and it is a cluster of trees. The Nala itself is
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located / situate ten feet below the road level. The Nala is
connecting a canal from the Northern portion and thereafter
meeting a larger Nala. It is despite such clear objections and
opinions in writing of the petitioner and the Town Planner dated
6th January, 2001 and 7th April, 2003, that the Appellate
Authority granted the permission.
11 We have perused the order under challenge and we
find that such objections, though on the record, have been
brushed aside. They have been brushed aside on the specious
ground that the plot of land is falling within a residential zone.
12 We do not think that the finding that merely because
on the opposite plot of land, a building has been standing and the
plans in relation to that building have been approved by itself and
without anything more can be a ground to direct the Municipal
Corporation to allow development on the subject plot. Merely
because the permission for an opposite plot has been granted
does not mean that respondent Nos.1 to 6 are entitled to
development permission on their plot of land. It is clear that the
State Government was aware that there is no access available.
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ASWP702.06.doc
Though the respondent Nos.1 to 6 stated before the Appellate
Authority that they would make available such access road, we
do not think that the grounds or the objections by the petitioner -
Municipal Corporation could have been brushed aside and so
casually and lightly. Eventually, the Planning Authority in
charge of regulating and controlling development activities and
so empowered by the MRTP Act, 1966, having recorded its
objection consistent with the aim and object of the MRTP Act,
could not have been interfered with unless there was a serious
legal infirmity in the refusal of the development permission by
the Pune Municipal Corporation. That serious legal infirmity or
lack of bona fides or perversity in the conclusion having not been
demonstrated, we are of the opinion that the order dated 28 th
July, 2004, impugned in the petition cannot be sustained.
13 The respondent Nos.1 to 6, though duly served, have
not bothered to oppose the grant of relief in the petition. They
have been represented by an advocate whose name appeared on
the daily board whenever this matter was listed. The writ
petition is of the year 2006 and no useful purpose would be
served by keeping it pending.
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14 For the reasons aforestated, the writ petition
succeeds. The impugned order is quashed and set aside. Rule is
made absolute accordingly, but without any order as to costs.
PRAKASH D. NAIK, J. S.C. DHARMADHIKARI, J.
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