1 14 wp.2130.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2130 OF 2010 Muzaffar Karim Khairatkhan. ... Petitioner Vs. Karad Nagar Parishad and ors. ... Respondents ­­­­­ Mr. A.R.Shaikh i/b Mr. V.Z.Kankaria for the Petitioner. Mr. N.J. Patil for Respondent No.1. Mr. H.Rehman i/b M/s. D.H. Law and Associaties for Respondent No.2. Mr. A.S.Gadkari, APP for the State. ­­­­­ CORAM : A.M. KHANWILKAR and P.D. KODE, JJ. DATE : 08 th October, 2010. P.C. 1 Heard the learned counsel for the Petitioner and the learned counsel for the Corporation. The argument of the Petitioner before us is that the Respondent No.2 had submitted application addressed to the President and Chief Executive Officer of the Corporation on 03 rd July, 2007 for permission to erect tower on the building in question. No refusal or rejection of that permission was communicated to Respondent No.2 or to the Petitioner. In that view of the matter, by virtue of Section 45 (5) of the Maharashtra Regional Town Planning Act, 1966, the Petitioner and Respondent No.2 were entitled to proceed on the assumption that there 2 14 wp.2130.10 was deemed permission in respect of the installation of the tower in question. Notwithstanding this position, the corporation has initiated action against the Petitioner, who is the owner of the building under Section 53 of the MRTP Act and notice in that behalf has been issued on 24 th December, 2009. The Petitioner therefore prays that the said show­ cause notice be quashed. 2 The argument of the Petitioner clearly overlooks the requirement of sub­Section (5). The fact that no communication was received either by Respondent No.2 or the Petitioner in response to the application dated 03 rd July, 2007 within 60 days from the submission of the said application, would not create absolute right in favour of the Applicant to contend that there is deemed permission to construct any structure referred to in the said application. The deeming clause would come into effect subject to the stipulation in the proviso under sub­ Section (5). Section 45 (5) reads thus: “45. ..... (5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the receipt of his application, or withing sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever it later, such permission shall be deemed to have been granted to the application on the date immediately following the date of expiry of sixty days. Provided that, the development proposals, for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control 3 14 wp.2130.10 Regulations framed under this Act or bye­laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act: Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorized development for the purposes of sections 52 to 57.” 3 From the proviso, it will be clear that the Petitioner or Respondent No.2, as the case may be, before taking the plea that there is deemed permission to install the tower in question will have to establish that their case is not affected by the proviso to sub­Section (5). The stand of the corporation before us is that the entire building constructed by the Petitioner itself is unauthorized in respect of which notices have been issued in terms of Section 52 and 53 of the Act and which action is still pending. If the main building itself is unauthorized, the structure appended to such building cannot become authorized by invoking deeming clause in sub­Section (5) referred to above. In our opinion, all these aspects will have to be considered before the appropriate authority. The argument that there was deemed permission in favour of Respondent No.2, which also enured in favour of the Petitioner will have to be considered by the appropriate authority. 4 14 wp.2130.10 4 In the circumstances, we decline to exercise writ jurisdiction and relegate the Petitioner before appropriate authority to first file reply, who in turn, shall take decision in accordance with law. Petition disposed of on the above terms. [ P.D. KODE, J ] [ A.M. KHANWILKAR, J ]