Bombay High Court
M/S Radiance Erectors Pvt. Ltd. Thr ... vs The State Of Maha. Thr Principal ... on 5 August, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
2025:BHC-NAG:7680-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2200 OF 2010
M/S Radiance Erectors PVT. LTD...,
through its authorized Director Shri Rajesh
s/o Uttamchand Wadhwani, aged about 42
Years, R/o 96, Farm Land, Ramdaspeth,
Nagpur. ... PETITIONER
VERSUS
1. The State of Maharashtra through
(i) its Principal Secretary, Urban
Development Department, Mantralaya,
Mumbai - 400032.
AND
(ii) its Principal Secretary, Revenue and Forest
Department, Mantralaya, Mumbai - 400032.
2. The Collector,
Nagpur District Collectorate, Civil Lines,
Nagpur.
3. Deputy Collector, Nagpur.
4. Director, Town Planning & Valuation
Department, Central Offices, Pune.
5. Assistant Director of Town Planning, 2nd
floor, Administrative Building, Civil Lines,
Nagpur.
6. Sarpanch, Gat-Gram Panchayat, Besa
(Beltarodi), Village Besa, Tahsil and District
Nagpur. ... RESPONDENTS
Mr. Harish Dangre, Advocate for Petitioner.
Mr. S.D. Marathe, AGP for Respondent Nos.1 to 5/State.
Mr. M. I. Dhatrak, Advocate for Respondent No.6.
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CORAM : ANIL S. KILOR AND VRUSHALI V. JOSHI, JJ.
DATE : 05.08.2025
ORAL JUDGMENT : (Per : Anil S. Kilor, J.)
. Heard. This Petition challenges the legality and correctness of
the show cause notice dated 4 th February 2010 issued by the Deputy Collector,
Nagpur to the Petitioner alleging that the construction has been carried out by
the Petitioner without obtaining permission from the Collector, Nagpur under
Section 18 of the Maharashtra Regional and Town Planning Act, 1966 and
calling upon the Petitioner to show the necessary permission and informing
the Petitioner that upon his failure to do so, the authority shall pass necessary
order. The notice also requires the Petitioner to stop the construction work
being carried out or which has been carried out already, in the meanwhile.
2. This show cause notice has been challenged on the ground that
necessary permissions were already obtained and the notice has been issued
hurriedly only to create a record that an omnibus order passed by this Court on
27th January 2010 in Writ Petition No. 5468 of 2009 in relation to
unauthorized construction in Besa - Beltarodi area has been implemented
properly by the authorities. This has been disagreed to by the learned AGP for
Respondent Nos.1 to 5.
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3. Mr. Dhatrak, the learned Counsel for Respondent No.6 does not
dispute the stand of the Petitioner that it has already obtained necessary
permission in the matter and the construction was over when the notice dated
4th February 2010 was issued.
4. The identical matter i.e. Writ Petition No.2199 of 2010 (M/s
Harihar Infrastructure Development Corporation Vs. The State of
Maharashtra and others) was decided by this Court on 24th July, 2019, by
allowing the petition.
5. Upon considering the documents placed on record and also the
admissions of the Collector, Nagpur and the concerned authorities given in the
communication 4th February 2010, we find that there is a great substance in the
argument of learned Counsel for the Petitioner and there is no merit in the
submissions of the learned AGP for the State.
6. Firstly, we find that the impugned notice is the result of an
absence of the requisite application of mind. On one hand, it says that the
construction has been carried out and on the other hand, it says that it is being
carried out thereby showing that the authority issuing the notice itself was not
sure as to whether or not the construction had been completed or was still
going on at the time of issuance of the notice. Then, it appears to us that this
notice having been issued by the authority about seven days after the order
dated 27th January 2010, perhaps was an aftermath of the direction of this
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Court dated 27th January 2010.
7. This Court had directed that the Collector, Nagpur would
initiate a survey of all the buildings/constructions carried out in the Besa-
Beltarodi area and examine whether the construction being carried out was
authorised or not. The further direction was for causing stoppage of the
construction. This order was primarily for dealing with the ongoing
unauthorised constructions, and therefore, the first and foremost duty of the
authority issuing the notice was to satisfy itself as to whether the subject
construction was an ongoing construction or the one which was a completed
construction.
8. But, in the show cause notice there is a clearcut dithering on the
part of the authority giving reflection of its uncertain mind. It said that
construction may have been carried out and in the same breath it also said that
construction might as well be going on. The mandate of the order dated 27 th
January 2010 was to undertake survey of the ongoing construction and not of
the completed construction and this was required to be done by taking
inspection of the spot. In fact, there is a further categorical direction given in
the order dated 27th January 2010 that the Collector may issue a show cause
notice for the purpose of spot inspection and ascertain the situation on the spot
either by himself or through any subordinate officer not below the rank of a
Deputy Collector and pass an order in writing.
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9. The reflection of uncertain mind coming up in the impugned
show cause notice, we must say, indicates that the authority did not take any
spot inspection and issued a show cause notice just to create a record. This
show cause notice, being the result of non-application of mind on the part of
the authority, cannot therefore, stand the scrutiny of law and on this ground
itself the show cause notice deserves to be quashed and set-aside.
10. In addition to what has been said earlier, we find that show cause
notice, on one more ground, cannot be upheld by this Court. It is an admitted
as well as established fact that the entire construction which has been carried
out by the Petitioner follows and is in compliance with the necessary sanction
obtained by the Petitioner from Besa - Beltarodi Grampanchayat and also the
Assistant Director of Town Planning, Nagpur.
11. It is also an admitted fact that it were the Collector, Nagpur, who
had directed the Petitioner to obtain sanction of the construction plan from the
competent local authority i.e. Grampanchayat, Besa. This is evident from the
order dated 22nd July 2004 which grants the permission for N. A. user of the
land. In this permission, there is a condition at Item No.8, internal Page No.3,
to the effect that the construction plan shall be got sanctioned from the
Grampanchayat, Besa.
12. The Assistant Director, Town Planning, Nagpur by his
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communication dated 10th May 2005 has also stipulated that the necessary
permission be obtained from the competent local planning authority i.e.
concerned Grampanchayat. This is stated in Item Nos.5 and 10 of the
communication dated 10th May 2005. These permissions were taken only as
per the directions of Collector, Nagpur and so we do not think that the show
cause notice dated 4th February 2010 could have been issued by the Collector,
Nagpur to the Petitioner. Even otherwise, the construction having been already
completed by the Petitioner well before the date of 4 th February 2010, no show
cause notice could have been issued in terms of proviso to Section 53 of the
Maharashtra Regional and Town Planning Act, 1966 requiring that such notice
has to be issued to occupiers of the building, and Petitioner is not the occupier
of the building.
13. Thus, we find merit in this Petition. As such, Writ Petition
stands allowed in terms of prayer clause (i).
14. Rule is made absolute in these terms. No order as to costs.
15. As the Writ Petition is disposed of, pending Civil Application, if
any, does not survive. Hence the same stands disposed of accordingly.
(VRUSHALI V. JOSHI, J.) (ANIL S. KILOR, J.
nd.thawre
Signed by: Mr. Niranjan Thawre
Designation: PA To Honourable Judge
Date: 06/08/2025 19:42:52
