Vinod S/O Gangaramji Bhalave vs The Nagpur Municipal Corporation ...
2023 Latest Caselaw 898 Bom

1/21                                               Judg.wp.5153.2012.odt



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH : NAGPUR

                   WRIT PETITION NO. 5153 OF 2012


       Vinod s/o Gangaramji Bhalave
       Aged about 52 Years, R/o Tekdi Road,
       Opp. Swagat Lodge, Gaulipura, Sitabuldi,
       Nagpur-12.                                       ... PETITIONER

                 VERSUS

1.     The Nagpur Municipal Corporation
       Through Commissioner, Civil Lines,
       Nagpur.

2.     M/s Hindustan Petroleum Corporation
       Limited, Regional Office at 2nd Floor,
       Oriental   Building, S. V. Patel Marg,
       Nagpur - 110001, through its Senior
       Regional Manager.

3.     Sanjay s/o Madhukar Mahakalkar
       Aged about 44 Years, Occupation -
       Business, R/o 97, Raghuji Nagar, Nagpur.

4.     The Chairman,
       Nagpur Improvement Trust, Nagpur.             ... RESPONDENTS


Mr. M. M. Agnihotri, Advocate for Petitioner.
Mr. J. B. Kasat, Advocate for Respondent No.1.
Mr. V. V. Bhangde, Advocate for Respondent No.2.
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Mr. S. K. Mishra, Senior Advocate assisted by Mr. Kaustubh Deogade,
Advocate for Respondent No.3.
Mr. S. M. Puranik, Advocate for Respondent No.4.


       CORAM         : A. S. CHANDURKAR & ANIL L. PANSARE, JJ.

RESERVED ON : DECEMBER 6, 2022.

PRONOUNCED ON : JANUARY 27, 2023.

JUDGMENT - [PER ANIL L. PANSARE, J.].

. Heard Mr. Agnihotri, learned Counsel for the Petitioner, Mr. Kasat, learned Counsel for the Respondent No.1, Mr. Bhangde, learned Counsel for the Respondent No.2, Mr. S. K. Mishra, Senior Counsel assisted by Mr. Kaustubh Deogade, learned Counsel for the Respondent No.3, and Mr. Puranik, learned Counsel for the Respondent No.4.

2. By this Petition, the Petitioner seeks declaration that sealing of Retail Outlet belonging to the Petitioner situated at Plot Nos.35 and 36, Khasra No. 48 in Ward No. 20, Mouza Sakkardara, Nagpur at the hands of Respondent No.1 - Nagpur Municipal Corporation (In short, 'NMC') is illegal, arbitrary, in violation of Rules of natural justice and also without authority of law. The Petitioner then seeks directions against the Respondent No.2 - M/s Hindustan Petroleum Corporation Limited (In short, 'HPCL) to forthwith provide a retail outlet within the city of Nagpur. In alternative, the Petitioner seeks directions to the Respondent No.1 - NMC and Respondent No.4 - Nagpur Improvement Trust (In short, 'NIT') 3/21 Judg.wp.5153.2012.odt

to consider the application of the HPCL for amalgamation of plot Nos. 35 and 36 and further to sanction the existing structure of the retail outlet within a period of three months.

3. The Petitioner is a citizen belonging to 'Gond' Scheduled Tribe. He applied for and was appointed as a dealer by HPCL for the outlet dealership at Nagpur. The Petitioner was selected as per the Central Government's policy under the reserved category. The location for the retail outlet was chosen by the HPCL. The land in question was acquired by the HPCL from the Respondent No.3 - Sanjay Mahakalkar on lease hold basis for the construction of petrol pump. The petrol pump was constructed by the HPCL. It appears that the construction was completed in the year 2003. In September-2005, the brother of the Respondent No.3 namely, Ajay Mahakalkar submitted an application to the HPCL seeking appointment of Company Owned and Company Operated (In short, 'COCO') operator for capital HP Auto Center at Nagpur.

4. In October-2005, the HPCL and Mr. Ajay Mahakalkar entered into an agreement for Maintenance and Handling of the COCO Retail Outlet for retail sale or supply of Petrol/Diesel/Motor Oils/Grease and such other products. On 4/2/2004 the NMC issued notice to the Respondent No.3 mentioning therein that the construction plan submitted by the Respondent No.3 could not be sanctioned for the reasons mentioned in the letter and that the construction plan is being returned back. The reasons mentioned were that the Respondent No.3 has 4/21 Judg.wp.5153.2012.odt

commenced Retail Outlet i.e. Petrol Pump even prior to getting approval to the plan; the construction made is not in accordance with norms; the plot in issue is for residential purpose; and that the No Objection Certificate of NIT has not been furnished.

5. It appears that the HPCL had then submitted another construction plan for approval. The NMC vide notice/letter dated 16/9/2009, refused to approve the construction plan on the ground that there is no Lease Deed or Sale Deed in its favour; the plots in issue have not been amalgamated; the construction is not in accordance with Development Control Rules etc. Despite this, on 24/2/2009 the HPCL issued an appointment letter to the Petitioner thereby appointing the Petitioner as dealer of the Retail Outlet of HPCL.

6. On or about 4/12/2009 Respondent No.3 filed Regular Civil Suit No. 963/2009 against the HPCL. The Respondent No.3 appears to have filed an application seeking temporary injunction restraining the HPCL from approaching any authority for obtaining sanction and permission in respect of the suit plots (the plots in issue). It appears from the pleadings made in the application that the HPCL had earlier assured Respondent No.3 to give dealership to operate Retail Outlet of the HPCL. On the basis of assurance, the Respondent No.3 let out the plots in issue to the HPCL on or about 23/9/2003. The HPCL carried out construction of the building and installed the petrol pump. The authorities of HPCL informed the Respondent No.3 that the dealership cannot be immediately 5/21 Judg.wp.5153.2012.odt

given, but a temporary arrangement can be made to run the petrol pump by the Respondent No.3 or his relative. The Respondent No.3 suggested the name of his relative namely, Yogesh Balbuddhe. Thereafter the Respondent No.3 suggested the name of his younger brother.

7. It is/was the case of the Respondent No.3 before the civil court that the plots in issue were leased out to him for residential purposes and that he desired to use the same for residential purpose. The Respondent No.3 had let out the plot with a bona fide faith that HPCL would obtain necessary permission from the Authority before carrying out a construction of the petrol pump. He had executed General Power of Attorney in favour of one of the officials of HPCL and also signed all necessary documents and map for proposed construction. On 4/2/2004 the Respondent No.3 received letter from the NMC stating therein that the construction map is being returned for the reasons stated in the letter. The Respondent No.3 has blamed the HPCL for not obtaining necessary sanction from the competent authority prior to use of the plots in question for commercial purpose. It is stated that HPCL is carrying on business activities without obtaining necessary sanction. The Respondent No.3 has also stated that he has received notice under Section 53 (1) of the Maharashtra Regional and Town Planning Act, 1966 (for short, 'MRTP Act') from the NMC on 25/11/2009. The Respondent No.3 apprehended that HPCL may submit fresh proposal for sanction. The Civil Court, vide order dated 16/8/2010 was pleased to grant injunction pending suit. The suit, however, was dismissed on 14/9/2017.

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8. It also appears that the Respondent No.3 had filed yet another Regular Civil Suit No. 178/2010 against the NMC, HPCL and two others for declaration and perpetual injunction. The Respondent Nos.3 sought temporary injunction restraining the NMC and the other Government Officials to accord sanction or to give No Objection Certificate to the HPCL, so also to restrain the HPCL from approaching any other official for obtaining any other sanction or no objection from them. The Application came to be rejected on 27/3/2012. The suit was dismissed on or about 19/9/2016.

9. One of the grievances of the Petitioner is that the Respondent No.3 knowing fully well that the Petitioner was in possession of the plots in issue, has intentionally not made him party Defendant in the said suit and obtained orders in his favour, though the suits ultimately got dismissed. The Petitioner has accordingly come up with the case that he was selected as per the Central Government's policy under the reserved category. The location for the Retail Outlet was chosen by the HPCL. The land was acquired by the HPCL on lease hold basis and the petrol pump was constructed by the HPCL. It was handed over to the Petitioner in the year 2009. The Petitioner is/was unaware of what transpired prior to the year 2009. The Petitioner had, therefore, no role to play either to seek any permission for amalgamation of plots or to obtain sanction for the construction. The Petitioner was under a bona fide impression that all the formalities in respect of installation of the Retail Outlet were completed, and therefore, had agreed to run the said outlet. The Petitioner cannot be 7/21 Judg.wp.5153.2012.odt

blamed for the inactions of HPCL and Respondent No.3 in getting proper sanction from Competent Authority. The Petitioner claims that the sealing of the retail outlet run by the Petitioner is an act of the NMC at the behest of Respondent No.3. The act of sealing is blatantly illegal and arbitrary, because the Petitioner was not given any opportunity of hearing and that the act has been done at the behest of the Respondent No.3 because the Retail Outlet as assured by the HPCL was not given to him. Hence this Petition.

10. The NMC by relying upon various notices, as stated above, has countered the claim of the Petitioner on the count that despite rejection of the application seeking permission for construction of petrol pump, the HPCL continued its activities through the Petitioner, and that therefore, the NMC was left with no other alternative but to seal the premises after issuing notice under Section 53 of the MRTP Act. The NMC being Planning Authority could have taken steps for demolition, but considering the fact that inflammable petroleum products were stored in the premises, the construction has not been demolished.

11. The HPCL has supported the Petitioner's case. According to the HPCL it did not receive any notice prior to sealing of the Retail Outlet, though it is admitted that the construction plan submitted by the HPCL on 5/2/2010 was rejected by the NMC on 21/9/2012. According to the HPCL, it was in the process of submitting revised proposal along with the necessary documents. It has, infact, moved application for amalgamation 8/21 Judg.wp.5153.2012.odt

of plot Nos.35 and 36. According to the HPCL, the action of sealing without notice is bad in law and calls for interference by this Court.

12. The NIT has stated that the plots in issue were leased out in favour of the Respondent No.3 for residential purpose. The Respondent No.3 was using it for commercial purpose which is not permissible. The lease of plot No.36 has expired in the year 2011. It is then stated that vide Government Notification dated 27/8/2019 the NMC is sole Planning Authority of Nagpur city and that NIT has ceased to be Planning Authority.

13. In the light of the facts noted herein above, the submissions made by the parties before us will have to be considered.

14. Mr. Agnihotri, learned Counsel for the Petitioner has argued that the Petitioner cannot be blamed for the action or omissions of HPCL and Respondent No.3. The Petitioner submitted an application on 30/10/2000 for awarding Retail Outlet dealership. He was called for interview in January-2002 and in February-2002 he was informed by the HPCL that it proposes to offer the Petitioner Retail Outlet dealership at Nagpur on certain terms and conditions. The important terms read thus :

"2.1 For enabling you to operate the Dealership said above, we will develop the Retail Outlet at Nagpur and provide the same to you with certain facilities mentioned in sub-paras (a) & (b) hereunder as early as possible.

(a) A suitable plot of land duly developed as Retail Outlet with 9/21 Judg.wp.5153.2012.odt

Sales Room, Storage Tank and Pump, Air facility for operating you Dealership.

(b) Working Capital, as may be determined by this Corporation at it's sole discretion to be utilised only for the purpose of taking delivery of MS/HSD from this Corporation to maintain supply."

15. Thus, it is argued that the HPCL has developed the Retail Outlet at Nagpur on the plots in issue. Sales rooms, Storage Tank and Pump, Air facility was to be given by the HPCL. The working capital was also promised which infact was given. The Retail Outlet was also given, but in the year 2009. There was no reason for the Petitioner to even imagine that the Retail Outlet has been constructed without obtaining permission. In the circumstances, Mr. Agnihotri submits that the act of NMC in sealing the Retail Outlet without giving any opportunity to the Petitioner is violative of Article 14 of the Constitution of India, and therefore, is illegal and arbitrary.

16. He then submits that the notices under question issued by the NMC were either issued to HPCL or the Respondent No.3. The Petitioner is completely oblivious to the said notices. The issuance of notice itself, according to Mr. Agnihotri, are bad in law as notices were not addressed to the Petitioner, at least copy ought to have been given. He has drawn our attention to Section 53 of the MRTP Act which reads thus :

"53. Power to require removal of unauthorised development 10/21 Judg.wp.5153.2012.odt

(1) (a) Where any development of land has been carried out as indicated in clause (a) or (c) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner, developer or occupier a prior notice of 24 hours requiring him to restore the land to conditions existing before the said development took place;

(b) if the owner, developer or occupier fails to restore the land accordingly, the Planning Authority shall immediately take steps to demolish such development and seal the machinery and materials used or being used therefor.

(1A) Where any development of land has been carried out as indicated in clause (b) or (d) of sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve one months' notice on the owner, developer or occupier requiring him to take necessary steps as specified in the notice.

(2) In particular, such notice may, for purposes of sub-section (1), require -

(a) the demolition or alteration of any building or works;

(b) the carrying out on land of any building or other operations;

or

(c) the discontinuance of any use of land.

(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the 11/21 Judg.wp.5153.2012.odt

land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use.

(4) ........................................

(5) ........................................

(6) ........................................

(7) ........................................

(8) ........................................ "

This, however, is an amended provision which came into force with effect from 15/4/2017. Sub-section (1) of Section 53 prior to the amendment was as under :

"53 (1) Where development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner a notice requiring him, within such period, being not less than one month, as may be specified, therein after the service of the notice, to take such steps as may be, specified in the notice.

(a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place.

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(b) in cases specified in clause (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified.

Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also."

17. Mr. Agnihotri, on the basis of amended provision has argued that the notice to the occupier was also mandatory and that notice to owner/developer only, ignoring occupier cannot be said to be a proper compliance of Section 53(1) of the MRTP Act. According to him, word 'or' in the phrase 'developer or occupier' will have to be read as 'and' to rule out the contingency that occurred in the present case. Even prior to the amendment, under proviso to sub-section (1), the notice was required to be served upon the occupier, if the proposed action was for discontinuance of any use of the land.

18. Mr. Agnihotri submits, that in the present case, the land was being used by the Petitioner, and therefore, the discontinuance of such user is permissible only after giving an opportunity of hearing to the Petitioner. He has then referred to sub-clause (3) of Section 53 to contend that any person aggrieved by such notice can apply for permission under Section 44 for retention on the land of any building or works or for the continuance of any use of the land. The Petitioner being affected person, could have, therefore, raised grievance at least by calling upon HPCL to 13/21 Judg.wp.5153.2012.odt

seek appropriate permission had the notice been served upon him.

19. Mr. Kasat, learned Counsel for the NMC submits that HPCL is a developer and not the owner of the land. The Petitioner is just an user. He has invited our attention to the notice dated 21/9/2012 issued by the NMC to the HPCL. The building plan submitted for approval was rejected and returned back on the following grounds :-

(i) Construction is shown by joining Plot No.35 and Plot No.36, but the documents about approved amalgamation of plot Nos. 35 and 36 from the competent Authority is not submitted.

(ii) Lease document of NIT and the NOC of NIT (as the plots are NIT lease hold) for the construction shown are not submitted.

(iii) City Survey document i.e. akhiv patrika in the name of lessee is not submitted.

(iv) Margins shown for the existing construction are not as per DCR.

20. He submits that the said notice has not been challenged by the HPCL, and therefore, it has attained finality. In absence of challenge to the said notice, the Petitioner, who even otherwise has no locus, cannot seek reliefs as sought in the present Petition. He has then drawn our attention to the notice dated 20/10/2012 issued in favour of the HPCL, by which, the HPCL was informed to remove inflammable and valuable material within three days in order to demolish the unauthorized construction. The HPCL did not comply the notice, and therefore, the NMC has left with no 14/21 Judg.wp.5153.2012.odt

other alternative but to seal the petrol pump as the inflammable items were kept in the premises. Accordingly, he justified the act of sealing by contending that even today there is no sanction.

21. Mr. Mishra, learned Senior Counsel appearing for the Respondent No.3 submitted that Petitioner is merely an allottee of the petrol pump. The Petitioner's right accrued sometimes in February-2009, when he was appointed as dealer for the retail outlet. He has no locus to file present Petition under Article 226 of the Constitution of India. According to him, the Petitioner has not demonstrated any independent rights in his favour. The Petitioner being in the capacity of agent cannot go beyond the rights of the principal. He ought to be aware that the sanction was refused as early as in the year 2004. He would then submit that the writ of mandamus cannot be issued to continue illegality.

22. He further submits, that the malice attributed to the Respondent No.3 by the Petitioner is without any material. The construction under question was prior to the year 2004. The plan submitted by the HPCL was not approved. The HPCL had submitted application seeking revised plan to the NMC. The revised plan was also rejected. Thereafter no steps were taken by the HPCL, except for filing applications repeatedly without furnishing necessary documents, which is of no avail. He has then drawn our attention to various provisions of the MRTP Act.

15/21 Judg.wp.5153.2012.odt

23. Section 18 provides that no person shall change the user of any land for any purpose without previous permission of the Planning Authority. Thus, the owner of the land would require permission before commencement of construction. He has then invited our attention to the Regulation 6 of the Development Control Regulations, 2000 for Nagpur City (for short, 'Regulations of 2000) . It provides for procedure to obtain Building Permit And Commencement Certificate. The application seeking building permit requires, inter alia, documents relating to ownership of the applicant. The Petitioner being not the owner, cannot even seek such permission.

24. Section 52 of the MRTP Act provides for penalty for unauthorised development or for use otherwise than in conformity with Development Plan. Section 53, according to Mr. Mishra, is a procedure to be followed prior to penalizing the person contravening the development or use of the land. It is so, because under Section 52 the person who himself or through any other person carries out development without permission would be liable to the punishment. Thus, the owner who on his own or through any other person contravenes or carries out development without permission is liable for punishment. He, thus, submits that the prime responsibility is of the owner, and therefore, service of notice under Section 53 upon owner will be sufficient compliance. The service upon occupier is not necessary as the occupier's right are within the domain of the owner and has no independent existence. In a given case, the notice may be served upon developer or 16/21 Judg.wp.5153.2012.odt

occupier and would also be a sufficient compliance. Therefore, he contends that the word 'or' in the phrase 'developer or occupier' used under Section 53 of MRTP Act cannot be read as 'and'.

25. He then submits that the Application filed by the Respondent No.3 and the HPCL under Section 44 seeking permission to construct the petrol pump has been rejected four times. Neither the Respondent No.3 nor the HPCL have preferred appeal under Section 47 of the MRTP Act against those orders, and therefore, the order of rejection has attained finality. The Petitioner, therefore cannot seek directions against the Respondents to consider a fresh application for regularization. On the point of the judgment cited by the Petitioner, he submits that though it provides for civil consequences, but will not be applicable for the act of unauthorized construction.

26. We have given thoughtful consideration to the contentions raised before us. We find substance in the Petitioner's case that he cannot be blamed for the actions or omissions of the Respondents. We are dismayed with the manner in which the HPCL has handled the entire episode. It is a Central Public Sector Undertaking, and therefore, there was no reason for the Petitioner, even to imagine that the HPCL would allot retail outletship without complying norms. The HPCL received first rejection sometimes in the year 2004. It had ample opportunity to correct itself prior to handing over retail outlet to the Petitioner, which has been done in the year 2009.

17/21 Judg.wp.5153.2012.odt

27. The act of sealing, from the Petitioner's point of view, will definitely be an act of gross illegality and arbitrariness. He was lawfully put in possession of the Retail Outlet of HPCL, and that therefore, the HPCL was duty bound to get all compliance done prior to and subsequent to the receipt of the notice under Section 53 of the MRTP Act. The dispute between the Respondent No.3 and HPCL has made the Petitioner to suffer.

28. The NMC has correctly taken a stand that despite rejection of application submitted by the HPCL seeking permission to construct petrol pump, the HPCL continued its activities through the Petitioner. The permission was rejected as far back as in the year 2004. One of the reasons for rejection of permission was that the Respondent No.3 had commenced retail outlet i.e. petrol pump even prior to getting approval of the plan. It was also informed to the HPCL that the construction, that was made, was not in accordance with the norms and that the plot in issue was for residential purpose. The HPCL made another attempt to get approval in the year 2009 by submitting proposal. The NMC rejected the approval on 16/9/2009 inter alia on the grounds that the plots in issue have not been amalgamated and that the construction was not in accordance with the Development Control Rules. Despite such status, the HPCL continued its activities earlier through the Respondent No.3 and this time through the Petitioner. The NMC, therefore, was fully justified in issuing notice under Section 53 of the MRTP Act against the HPCL and the owner (Respondent No.3).

18/21 Judg.wp.5153.2012.odt

29. The responsibility of construction of a structure on a plot is primarily of the owner and/or developer. Therefore, the notice of removal of unauthorised development will normally be served on the owner and/or developer. The occupier is the one whose rights in the structure will be within the rights of the owner. The occupier does not acquire independent right in the structure to contend that the notice under Section 53 of the MRTP Act will have to be served upon the occupier as well. Thus, the notice under Section 53, strictly speaking, need not be issued to the persons like Petitioner. The sub-section (1) of Section 53, prior to amendment provided that the notice under the said provisions was to be served upon the owner. The proviso thereto was in connection with discontinuance of use of land.

30. In the present case, the issue was not of discontinuance of use of land, but was demolition of unauthorized construction, and that therefore, the notice upon owner or developer could be said to be sufficient compliance of the provisions. The argument of Mr. Agnihotri that effectively the Petitioner will be required to discontinue the use of the land, in our view, is without any substance. The discontinuance of use of the land as suggested by Mr. Agnihotri would be a consequence of demolition of unauthorized structure. The purpose of notice under Section 53, in the present case is to demolish the building and not to discontinue the use of the land. The term 'discontinuance of use' is in context with use of land or premise other than what has been approved/sanctioned. For example, if a residential building is being used for commercial purpose, 19/21 Judg.wp.5153.2012.odt

the notice may be issued to the occupier to discontinue the use. In such cases, the construction, as such, is not unauthorised. In the present case, the notice is in respect of the unauthorised construction.

31. Mr. Agnihotri, has relied upon the decisions of the Hon'ble Apex Court in the cases of - (i) Manohar s/o Manikrao Anchule V/s State of Maharashtra and Another, (2012) 13 Supreme Court Cases 14; and (ii) State of Haryana V/s Ram Kishan And Others, (1988) 3 Supreme Court Cases 416 to contend that if the person is to be affected by a decision, he should be afforded an opportunity of hearing, even if the Rules on that count are silent.

32. In the case of Manohar Manikrao Anchule (cited supra), the Hon'ble Apex Court was dealing with a case in which the State Information Commission exercises quasi-judicial powers. The Apex Court held that functioning of the Commission is akin to the judicial system rather than the executive decision-making process, and therefore, adherence to the principles of natural justice is mandatory, even if there is no specific provision in the statute. In the case of State of Haryana (cited supra), the Hon'ble Apex Court while dealing with rights of lessee, relating to mining held that opportunity of hearing must be afforded to the aforesaid lessees before taking an adverse decision involving civil consequences.

33. In the present case, however, the question before us is whether 20/21 Judg.wp.5153.2012.odt

the NMC has complied with the requirement of issuance of notice as contemplated under Section 53 of the MRTP Act, which we have found to be complied with.

34. So far as sealing of the retail outlet is concerned, the retail outlet is owned by the HPCL. The NMC has put HPCL on notice, at least on the point of unauthorized construction. It will not lie in the mouth of HPCL now to say that it did not receive notice of sealing, particularly when the HPCL was directed to remove the inflammable and valuable articles from the premises under question. Having failed to do so, the HPCL has no locus to blame the NMC for the act of sealing.

35. On the point of the action being taken at the instance of Respondent No.3, who is said to be an influential person, we need not comment upon the said allegations without there being cogent evidence in support. Even otherwise, the action taken by the NMC cannot be said to be illegal. The allegations that NMC allowed to continue Petitioner to run the retail outlet for about three years, will not be of any significance, as much as, such continuance will not override the objection of the NMC that the HPCL has constructed the petrol pump without obtaining prior permission.

36. In the circumstances, the only relief that can be granted to the Petitioner is to direct the Respondent No.2 - HPCL to forthwith provide a Retail Outlet within the city of Nagpur with liberty to the HPCL to apply for regularization of the construction under question by filing appropriate 21/21 Judg.wp.5153.2012.odt

proceedings before the NMC, since we do not find from the provisions of the MRTP Act that there is any bar to make subsequent application for regularization, if the earlier application is rejected.

37. We accordingly, proceed to pass the following order.

                                                        ORDER


                  (i)       The Writ Petition is partly allowed.


                  (ii)      The HPCL is directed to allot alternate retail outlet to the Petitioner

within the city of Nagpur, as expeditiously as possible, and in any case within six months from the date of the order.

(iii) The Respondent No.2 - HPCL is at liberty to apply for regularization of the construction under question by filing appropriate proceedings before the Respondent No.1 - NMC, which shall be processed by the NMC as per Rules.

(iv) This order shall come into effect after expiry of four weeks from today.

38. Rule is made absolute in above terms. No costs.

                  (ANIL L. PANSARE, J.)                                 (A. S. CHANDURKAR, J.)
                  vijaya
Digitally Signed ByVIJAYA
GOURISHANKAR YADAV
Signing Date:27.01.2023
19:52