1986 Supreme(Bom) 206

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari T.D. Sugla, JJ.
Digambar Sakharam Tambolkar another.... Petitioners.
Versus
Pune Municipal Corporation others.... Respondents.
Writ Petition No. 4085 of 1983, decided on 31-7-1986.
Advocates appeared :
V.V. Tulzapurkar with R.D. Soni, i/by Madhukar Munim Co., for petitioners.
A.V. Sawant A.G., with R.N. Dhorde, for respondent Nos. 1 to 3.
N.D. Bhatkar, A.G.P., for respondent No. 4-State.

Headnote:Section 26-Department Control Rules proposed for application in Pune Municipal Corporation Area for Revised Development Plan of Pune Clause 243Disputed Land surrounded by gaothan land, shall be treated as gaothan lands.

       The Planning Authority has not considered a relevant and important aspect which goes to the root of the matter namely, the land in dispute will still be treated as goathan land because of the provisions of Rule 2 (7) at page 63 of the Building Rules and Bye-laws and the fact that it is surrounded by goathan lands. No satisfactory answer has been given to this allegation in the affidavit filed by the respondents except indicating the boundaries of the land in dispute. Except for stating that the plan produced did not conclusively establish that the land in dispute is surrounded by the gaothan lands, Advocate-General has not elaborated his submissions in this regard. Thus, it will have to be held that the finding of the Planning Authority that the land in dispute is not a gaothan land is vitiated on this ground. The City maps in the paper book, in our view, sufficiently vindicate the petitioners stand. There is not even a suggestion that the provisions in this regard have changed. Accordingly we hold that the land in dispute is to be treated as gaothan land being arrounded by gaothan lands. Rationale behind this rule is obvious, namely, that when all the surrounding lands are allowed F.S.I. on the basis of gaothan tenure, then not granting the same F.S.I, to the land surrounded by those lands will have no justification.

       Section 51-- Planning Authority is vested with discretion to revoke or modify the permission-Merely because no right of appeal available -No ground to make Section 51 inconstitutional.

       Sections 51 comes under Chapter IV which deals with "Control of Development and Use of Land included in Development Plans. There are several inbuilt safeguards in the section as is evident from its plain reading. Permission already granted can be revoked under Section 51 only if it appears to the Planning Authority that it is expedient to do so having regard to the Development plan prepared or under preparation. It is, therefore, difficult to accept that no guide-lines are indicated in the section. There is provision for giving opportunity of being heard to the affected party before the permission already granted can be revoked or modified. There again it is not as if in all cases falling under Section 51 (1) but not falling under the proviso thereto, the permission granted must be revoked. It can be modified in appropriate cases. Thus, the Planning. Authority is vested with the discretion. It can revoke or modify the permission depending upon the circumstances of each case. Sub-section (2) on the other hand provides for compensation in cases where the affected party has to suffer loss for no fault of it. In case the affected party is not satisfied with the amount of compensation granted, there is provision for reference of the disputes for the adjudication of the Court. The person authorised to take action under Section 51 is no less a person than the senior most office of the Municipal Corporation i.e. Municipal Commissioner. It is true that the Act does not provide for an appeal against the order passed under this section. However, in view of the fact that the remedy by way of writ in such cases is always available, it cannot be held that for mere want of right of appeal against the order under Section 51, the Section is unconstitutional.