Back
2023 Supreme(Bom) 704
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. CHANDURKAR, M.W. CHANDWANI, JJ.
M/s. Bhima Mahabharat Builders and Developers, Through its Partner- Shri Jayesh Dinesh Kadam - Petitioner
Versus
State of Maharashtra, through its Honourable State Minister for Urban Development Department and Ors. – Respondents
Writ Petition No. 1404 of 2022 with IA No.18422 Of 2022 with Writ Petition (St) No.5050 Of 2021 with Writ Petition No.4373 Of 2021
Decided On : 03-05-2023
For the Petitioner: Shri A.V. Anturkar with Shri Tanaji Mhatugade,
For the Respondents: Shri R.M. Shinde, Shri S.C. Naidu, with Shri A.M. Adagule, Ms. Divya Yajurvedi, Shri Sudeshkumar Naidu and Shri Pradeep Kumar.
Headnote:
Buffer Zone - Determination of Buffer Zone under Section 47 of the Maharashtra Regional and Town Planning Act, 1966 - Summary of Acts and Sections: Section 47 of the Act of 1966, Rules of 2016 - The court discussed the legality of the determination of the buffer zone at a distance of 162 to 182 meters as directed in the impugned order dated 01.12.2016. The court highlighted the legal infirmities in the order, including the non-consideration of the mandatory provisions of the Rules of 2016, and concluded that a writ of mandamus could not be issued to implement such an order.
Fact of the Case:
The case involved the rejection of building permission by the Municipal Corporation due to the proximity of the land to the Solid Waste Management Project. Various writ petitions were filed seeking approval of layout proposals and challenging the determination of the buffer zone.
Finding of the Court:
The court found that the order dated 01.12.2016 determining the buffer zone suffered from legal infirmities and was set aside. It directed the Municipal Corporation to follow the procedure prescribed by the Rules of 2016 for determining the buffer zone and to decide pending applications expeditiously.
Issues: The principal issue was the legality of the determination of the buffer zone under Section 47 of the Act of 1966. Other issues included the rejection of building permission and the pending layout approval applications.
Ratio Decidendi: The court held that the determination of the buffer zone exceeded the jurisdiction of the appellate Authority under Section 47 of the Act of 1966 and did not comply with the mandatory provisions of the Rules of 2016. It also emphasized the importance of involving the State Pollution Control Board in the process.
Final Decision: The order dated 01.12.2016 was set aside, and the Municipal Corporation was directed to determine the buffer zone in accordance with the Rules of 2016. Pending applications were to be decided expeditiously, and the writ petitions were disposed of with parties bearing their own costs.
JUDGMENT :
(A.S. Chandurkar, J.)
1. All these writ petitions were heard together and they can be conveniently decided by this common judgment.
2. Rule. Rule made returnable forthwith and heard the learned counsel for the parties.
3. The order dated 01.12.2016 passed by the Hon’ble Minister of State, Urban Development Department, Mumbai in proceedings under Section 47 of the Maharashtra Regional and Town Planning Act, 1966 (for short, the Act of 1966) by which the Kolhapur Municipal Corporation (for short, the Municipal Corporation) has been directed to consider the buffer zone at a distance of 162 to 182 meters for location of the Solid Waste Management Project has given rise to the present litigation. One Shri Pratap Arvind Diwan had submitted an application for grant of building permission on 01.04.2007 at his property located at Survey No.846/1A, bearing Revision Survey No.846/1A, 1C, 2A, 2B, 1B,1D, 3 and 4 admeasuring 4 H 1 R, E-Ward Kasba-Bawada, Kolhapur for residential use as well for construction of approach road. The Municipal Corporation on 11.02.2008 rejected the said application on the ground that the said land was located at a distance within 500 meters of the Solid Waste Management Project. Being aggrieved, the said applicant filed an appeal under Section 47 of the Act of 1966. While considering that appeal the Hon’ble Minister noted that as per the sanctioned development plan the land in question was in a residential portion thereof. The Solid Waste Management Project of the Municipal Corporation at Kasba- Bawada was not at a land fill site. The applicant’s land was at a distance of 460 meters from the Solid Waste Management Project. In view of the recommendations of the National Environmental Engineering Research Institution (NEERI) that the Solid Waste Management Project should have buffer zone of 162 to 182 meters coupled with the fact that at the Pimpri-Chinchwad Municipal Corporation, the Solid Waste Management Project was at a buffer zone of 100 meters which was approved by the State Government as well as the Maharashtra Pollution Control Board, the rejection of the applicant’s development plan was illegal. The said appeal came to be allowed and the Municipal Corporation was directed to consider the report of the NEERI as well as its suggestions and thereafter take steps to grant development permission at the distance as suggested.
4. Insofar as Writ Petition No.1404 of 2022 is concerned, the petitioner having purchased the subject property referred to hereinabove seeks issuance of writ of mandamus to the Municipal Corporation to sanction the layout proposal dated 01.04.2007 by complying with the order passed under Section 47 of the Act of 1966 on 01.12.2016.
In this writ petition, Interim Application (IA) No.18422 of 2022 has been filed seeking permission to intervene in the writ petition. According to the applicant, he had filed an application for sanction of layout plan on 14.11.2005. The same came to be sanctioned on 23.12.2005. The applicant therefore on 14.03.2014 sought building permission to construct/develop his property located at land bearing Survey No.830/1 situated at E-Ward, Kasba Bawada. The application preferred by the applicant was kept pending and no decision thereon came to be taken. According to the applicant, the order dated 01.12.2016 passed under Section 47 of the Act of 1966 adversely affects the interest of the applicant in so far as the buffer zone is determined and he therefore seeks to intervene in the said writ petition.
5. The applicant who has filed IA No.18422 of 2022 in Writ Petition No. 1404 of 2022 has also filed Writ Petition(Stamp) No.5050 of 2021. In the said writ petition a direction is sought to be issued to the Municipal Corporation to decide the petitioner’s application seeking building permission dated 14.03.2014. In addition, challenge is raised to the order dated 01.12.2016 passed by the Hon’ble Minister of State in proceedings under Section 47 of the Act of 1966.
