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IN THE HIGH COURT OF BOMBAY
A.P. Shah B.B. Vagyani, JJ.
Smt. Hansa Dattatraya Moodaliar others ..... Petitioners.
Versus
The Pune Municipal Corporation others .... Respondents.
Writ Petition No. 5304 of 1986, decided on 22-7-1997.
Advocates appeared :
R.D. Soni, for the petitioners.
R.G. Ketkar, for R.N. Dhorde, for respondent Nos. 1 to 3.
C.R. Sonawane, for respondent Nos. 4 and 5.
Sections 51 and 154-See Maharashtra Regional and Town Planning Act, 1956-Sections 51 and 26.
Section 154-See Maharashtra Regional and Town Planning Act, 1966-Sections 51 and 26.
Section 51-Bombay Provincial Municipal Corporation Act, 1949, Sections 45-B, 51 and 154-Revised policy on grant of permission-Whether planning authority has power to revoke permission-Sanctioned development plan-Sanction revoked by authorities-Contention-The act is arbitrary-Authorities have discretionary power-Cannot be challenged.- The Division Bench also over- ruled the constitutional challenge to Section 51. In para 15 of the judgment, it was observed that there are several in built safeguards in the section. 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 cannot, therefore, be said that no guidelines are indicated in the section. There is provision for giving an 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.
Sections 51 and 26-Bombav Provincial Municipal Corporation Act, 1949, Section 154-Already sanctioned plan-Half of construction already over-Most of other similar cases allowed to complete work-An assurance that upto a certain area of land will be allowed-But, withdrawn-Held-Case well within Section 51 of the Act.- The petitioner have submitted a chart showing the names of the concerned parties and the nature of the orders passed by the Planning Authority for regularising the construction. It is clearly seen from the said chart that in number of cases, the Planning Authority has allowed the parties to complete the project where the construction was substantially progressed. In some cases only 50% work was completed. In the case of Shri Dadhe Ruikar, 2007, Sadashiv Peth, at the time of notice, only 25% work was completed but, the party was allowed to complete the construction by deduction of only 2074 FSI. The Court holds that the proviso to Section 51 has been enacted to take care of such situation.
Sections 51 and 26-Bombay Provincial Municipal Corporation Act, 1949, Sections 51 and 154-Plan already sanctioned-Revised development plan coming into force-If, it can cover earlier plans already sanetioned-Corporation revised the plan-Ground-Even a gaonthan land more than 2 FSI is not allowable-Held-Under Section 26 Planning Authority has power to revoke the permission.-Under the Revised Development Plan even gaonthan land cannot have FSI of more than 2.00 whereas by virtue of the permission granted on 30th April, 1982, the petitioners were entitled to construct a building the FSI of which would work out to 4.42, It is thus, clear that the permission granted in this case is not in conformity with the Revised Development Plan. Consequently, it was open for the Planning Authority to revoke the permission if, in its view it was expedient to do so having regard to the development plan prepared or under preparation.
2. The facts and circumstances giving rise to the present petition are as under:
The petitioner Nos. 1 to 3 are the owners of the property bearing City Survey No. 590, situate at Rasta Peth, Pune and the petitioner Nos. 4 and 5 are the persons with whom the petitioner Nos. 1 to 3 have entered into agreement for development of the property under the agreement dated 23rd January, 1982. The development plan for Pune was approved on 16th August, 1966 by the State of Maharashtra which has been operative during the material time. Under section 458 of the Bombay Provincial Municipal Corporation Act, 1949 the building rules and bye-laws were framed by the Municipal Corporation for the purpose of development of lands possessing gaonthan tenure. There is no dispute that the petitioners' land being a gaonthan tenure, as per the existing building rules there was no restriction on F.S.I. available on the land. The restriction was only to the height of the structure.
3. On 3rd March, 1982 the petitioners submitted building plans to the Municipal Corporation in accordance with the relevant building rules applicable to gaonthan land. Initially, the Municipal Corporation vide its letter dated 23rd March, 1982 refused permission to the petitioners by raising certain objections against grant of permission. The petitioners thereafter submitted corrected plans on 10th April, 1982 by making necessary amendments in view of the objections raised by the Municipal Corporation. The re-submitted plans were approved and permission was granted to the petitioners to develop their property vide commencement certificate No. 85 dated 30th April, 1982 in terms of which permission the petitioners were entitled to construct a building on their property with built-up area of 50085 sq. ft., height permitted 70 feet and F.S.I. 4.42. It seems that since the existing building on the property was occupied by tenants, the petitioners sought permission from the Municipal Corporation to submit a phase-wise plan which got approval from the Municipal Corporation on 3rd September, 1982. On 20th December, 1982 the petitioners submitted to the Municipal Corporation plans for the construction of second phase of the building. Accordingly, permission was granted by the Corporation on 4th January, 1983.
4. At this stage it is required to take note of certain events which took place after the building plans of the petitioners were sanctioned and which finally led to the revocation of the petitioners' building permission under section 51 of the Act. As indicated earlier the development plan sanctioned by the State Government came into force on 15th August, 1966. Under the provisions of the Act, a fresh development plan is required to be prepared at least once in ten years. The Planning Authority had on 15th March, 1976 made a declaration under section 38 of the Act of its intention to prepare a revised development plan. On 25th August, 1981 the State Government issued a directive under section 154 of the Act to the Planning Authority to prepare the draft plan. Further directive was also issued on 27th August, 1981 with some minor modifications to the earlier directive. The requisite resolution was passed by the Municipal Corporation on 3rd June, 1982 which was published in the official gazette on 10th June, 1982. Thereafter on 18th September, 1982 a draft revised development plan was published under section 26 of the Act. Cla
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