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2001 Supreme(Bom) 39
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
V.K. Barde D.S. Zoting, JJ.
Vithal Ramchandra Devkhar another.... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 187 of 1989 (W.P. No. 3871 of 1986), decided on 18-1-2001.
Maharashtra Regional and Town Planning Act, 1966, Secs. 37, 52, 54 45---Deemed permission---When applicable---Construction of theatre---In guise of renovation---Under deemed permission of Municipality because no objection to it was made within 60 days of application for permission---Facts showing that construction had in fact started within 60 days---Renovation revised capacity of theatre from 500 to 1150 seats---Theatre fell within floodline of 1 lakh cusecs of water from dam upstream---Held, admitted position being that construction was not internal repairs but entirely new one fell within the floodline prohibited under Development Control Rules even Municipality/M.R.T.P. authorities or Government had no power to allow construction. Efforts of respondent 1 to cover the case under deemed permission was not tenable as it was contrary to Development Control Rules and fact that work had started much earlier was an attempt to mislead the Court. (Paras 43, 48, 51, 52, 54 62)
Advocates appeared :
Sarvashri K.G. Gawali and C.K. Shinde, for the petitioners.
A.V. Gondhalekar, A.G.P., for respondent No. 1.
Sarvashri S.B. Talekar A.S. Golegaonkar, for respondents Nos. 2 4.
S.D. Kulkarni, for respondents Nos. 3(a) to 3(h).
Headnote:Sections 37, 52, 54 and 45-Applicability of deemed permission-In guise of renovation a new theatre is being made-Under deemed permission as within 60 days of filing application no objection was made-Facts show that construction begun prior to completion of 60 days wait period-Seating capacity revised from 500 to 1150- Theatre within flood-line of 1 lac cusecs of water from dam upstream-Held-As construction was not only renovation it was entirely new one, in flood-line area even government has no power to allow construction-Effects of respondent to bring care under deemed provision not successful, also an attempt to mislead Court.- The plans submitted by respondent No. 3 were proper as per the other rules and byelaws regarding the building construction provided by the Municipal Councilor for that matter, under the Cinema Regulation Act, the Municipal Council, Local Authority under the M.R.T.P. Act, had no jurisdiction to give sanction for construction or reconstruction because of the notification of 1981. The matter, which was not within the jurisdiction of the Municipal Council, cannot be considered within its jurisdiction by taking advantage of Section 45(5) of the M.M. Act, as "deemed permission". To presume that there was deemed permission, there must be first authority to grant permission. As the Municipal Council had no such authority, there cannot be any presumption of deemed permission. The Municipal Council had no authority to grant permission to construct a theatre in the flood line or cannot allow that to be constructed by avoiding to record its refusal within the period of 60 days. So, it is very clear that respondent No.3 cannot claim that he had deemed permission for construction of the theatre and, therefore, the construction is legal and. authorised. The matter was well within the scope of Urban Development and Public Health Department, which had issued the notification and which was the authority to decide whether the construction of a building in that area would be safe or not. Already the Government had taken the decision that it would be unsafe to allow construction of any building in that area. So, while acting under the provisions of the Cinema Regulation Act, the Home Department could not have transgressed its jurisdiction. The Collector, Ahmednagar, had taken the right decision of not allowing the cinema licence to respondent No.3 in this building. It is already pointed out that the stand taken by respondent No. 3 that there was deemed permission under Section 45(5) of the M.RT.P. Act is not tenable. He could not have obtained the permission for construction of the theatre, because it was not within the powers of the authority under the M.R.T.P. Act or the M.M. Act to grant him permission to construct or reconstruct the theatre in the flood-line of 1 lakh cusecs of water discharge. So, there was no reason for him to presume deemed permission. In such circumstances, if any permission is obtained by respondent No. 3 under the provisions of the Cinema Regulation Act, it cannot be valid permission because of the provisions of Section 156 of the M.RT.P. Act. From this point of view also, respondent No.3 cannot claim that the construction is authorised construction.
V.K. BARDE, J.:---The two petitioners have filed this petition as public interest litigation. Petitioner No. 1 was the Member of the Rahuri Municipal Council-Respondent No. 4 at the relevant time. He was a nominated independent Member of the Municipal Council. While petitioner No. 2 was the permanent resident of Rahuri, a town situated in Ahmednagar district.
2. The petitioners have contended that respondent No. 3 Shri L.R. Bihani who has expired during the pendency of the writ petition (and now his Legal Representatives are brought on record) was running cinema theatre, known as Usha Chitra Mandir, in CTS No. 417 of Rahuri. It was a quasi permanent building.
3. The petitioners have contended that the development plan of Rahuri under the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as, "the M.R.T.P. Act") was sanctioned on 17th September, 1976, was published under the Government Notification, Urban Development and Public Health Department, and the same came in force on 1st November, 1976. Chapter VI of the Report of the said Development Plan deals with the regulations for controlling the houses and development of the area within the Municipal Limits of Rahuri and the same is also known as the Existing Development Control Rules for Rahuri.
4. The standardised Building Bye-laws and Development Control Rules for different Classes of Municipal Councils in the State of Maharashtra were submitted to the Government of Maharashtra by the State Level Committee appointed in this behalf and were accepted by the State Government on 2nd November, 1979, which are being called Standard Development Control Rules. The State Government by its resolution dated 6th July, 1980 issued under section 154 of the M.R.T.P. Act directed the Municipal Council to revise their existing rules on the lines of Standardised Rules by following the provisions of section 37 of the M.R.T.P. Act. Pursuant to the said directions of the State Government, respondent No. 4, after following all the legal procedure under section 37 of the M.R.T.P. Act, submitted to the State Government for sanction the proposal for minor modifications of its said development plan so as to revise the existing Development Control Rules on the lines of the Standardised Development Control Rules. There, it specifically made provisions to control the development within the floodlines of 1 lakh cusecs and 2,10,000/- lakhs cusecs water discharge from Mula Dam. The petitioners have contended that the modification was necessary in view of the fact that the Mula Dam was constructed on River Mula about 6 to 7 Kms. upstream of Rahuri in the year 1969. So, it became necessary to provide for floodlines in the event of release of water from Mula Dam to avoid any danger to Rahuri town. The office of the Engineer of Mula Dam project had prepared a plan showing the two floodlines for Rahuri town. The petitioners have filed on record copy of the letter of Assistant Engineer, Mula Dam Project, giving the details about the floodlines and a plan of Rahuri town showing therein in red the area of the floodline limits of 1 lakh cusecs of water discharge and in green the area of the floodline limits of 1 lakh cusecs of 2,10,000 cusecs water discharge. The Government was satisfied, after making the necessary enquiry and after consulting the Director of Town Planning, with the proposed modifications and, therefore, a notification dated 16th November, 1981 was published to modify the development plan and the existing Development Control Rules for Rahuri town. As per this modified development plan, no building shall be allowed to be constructed or reconstructed in the area falling within the floodline of 1 lakh cusecs water discharge.
5. The petitioners have contended that respondent No. 3 had his cinema theatre, Usha Chitra Mandir, in CTS No. 417 of Rahuri town, which falls within the floodline of 1 lakh cusecs water discharge shown in red colour in the map annexed with the petition
