1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.3057 OF 2011 (Jyoti Deepakkumar Parakh and others vs. Municipal Council, Chandrapur and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri V.R. Choudhary, Advocate for the petitioners. Shri M.I. Dhatrak, Advocate for the respondent no.1. ------ CORAM : R.M. SAVANT, J. DATED : JULY 1, 2011 This petition takes exception to the order dated 29/4/2011 passed by the learned Ad hoc District Judge-1, Chandrapur whereby Miscellaneous Civil Appeal Nos. 16/2011 and 17/2011 were dismissed. Insofar as the present petition is concerned, the petitioners were concerned with Miscellaneous Civil Appeal No.17/2011. The petitioners are the land owners and developers in respect of land bearing City Survey No. 17024, 16923 and 3179 of Chandrapur lying 2 within the area of the Municipal Council, Chandrapur. The petitioners submitted revised plans on 20/11/2007 and also complied with the other requirements. It is the case of the petitioners that they did not receive any communication from the respondent no.1 Municipal Council either approving or disproving the revised plans and, therefore, on lapse of 60 days, they were entitled to proceed on the basis of the deemed permission. The petitioners, therefore, filed Regular Civil Suit No. 135/2009 seeking a perpetual injunction restraining the Municipal Council from demolishing the structure that has been put up by the petitioners. In the said suit, the petitioners filed an application for temporary injunction, which came to be rejected by the trial Court by its order dated 10/2/2011. The petitioners thereafter carried the matter in appeal by filing Miscellaneous Civil Appeal No.17/2011 whereas the flat purchasers filed Miscellaneous Civil Appeal No.16/2011. Both the appeals were dismissed by the first appellate Court and the order of the trial Court rejecting temporary injunction was confirmed. 3 Both the Courts below have recorded a finding that the petitioners have consumed F.S.I. in excess of their entitlement and have also constructed on a plot, which was reserved for an amenity in the development plan. By adverting to the pronouncements of the Apex Court wherein the Apex Court has expressed its serious concern over unauthorised and indiscriminate constructions in cities and big towns, both the Courts below did not think it fit to exercise discretion in favour of the petitioners as well as the flat purchasers. In my view, the reasons why both the Courts below have refused to exercise discretion in favour of the petitioners are unexceptional considering the fact that the allegation against the petitioners is that of carrying out unauthorised construction. Shri Dhatrak, learned Counsel for the respondent Municipal Council, states that a notice under Section 53(1) of the Maharashtra Regional and Town Planning Act has already been issued to the petitioners. The same is disputed by Shri Chaudhary, learned Counsel for the 4 petitioners, upon which, Shri Dhatrak, learned Counsel for the respondent Municipal Council, fairly stated that a fresh notice would be issued to the petitioners within a period of two weeks from date and the same would be served upon the petitioners as well as their local Advocate in Chandrapur. The Municipal Council thereafter to proceed in accordance with law. For a period of four weeks from date, no precipitative action to be taken against the offending structure. It will be open for the petitioners to apply for stay of demolition before the appropriate Authority of the Municipal Council pending consideration of their reply/representation filed pursuant to the notice. With the aforesaid observations, the writ petition is dismissed. JUDGE khj