1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5810 OF 2007 Kishor N. Lulla .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.S.P.Kanuga i/b. S.N.Nath for petitioner Ms.V.Mhaispurkar, A.G.P. for respondent No.1 Mr.R.S.Desai for respondent No.2 CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd January 2008 P.C. . By this petition under Article 227 of the Constitution of India, the petitioner challenges the order passed by the Appellate authority viz., 2 State of Maharashtra dated 13th June 2007 confirming notice which has been issued on 31st August 2004 and a copy of which is annexed as Exh.D to the petition. 2. The Ulhasnagar Municipal Corporation invoked section 56 of the Maharashtra Regional and Town Planning Act (M.R.T.P. Act) and stated therein that the Chief Officer of the erstwhile Municipal Council approved the plan for additions and alterations of Shop No.829 for the purpose of development to the extent of 33.69 sq.mtrs. on 20th January 1972 on each of the floor of ground plus upper floor structure. The report of the Junior Engineer is referred to in the notice and thereafter, it is stated that the petitioner was authorised to use the property to the extent indicated therein. However, the sanctioned development plan came into force with effect from 1st July 1974 and having regard to the said plan, petitioner’s property, more particularly 3 described in the notice, is completely affected by the designated purpose of 35 feet wide road. In such circumstances, his authorised use in this property at "U" No.179, Sheet No.63 as per building plan offends the provisions of sanctioned Development plan of 1974. However it is expedient in the interest of proper planning of 35 feet public street leading from Suri Chowk to E.S.I. Hospital (including interest of amenities) having regard to the sanctioned development plan of 1974, the use of his land for commercial purpose should be discontinued and the ground plus upper floors be removed. 3. The notice stated that in the event petitioner failing to comply therewith, the Corporation would be constrained to remove the structure at its cost. 4. Aggrieved by this notice in terms of this provision referred to above, an appeal was 4 preferred. The appeal also has been dismissed by the Chief Minister, who is competent authority. The petitioner, has therefore, filed the present petition challenging the notice and the order of the appellate authority. 5. Mr.Kanuga, learned Counsel for petitioner invited my attention to section 56 and contended that the petitioner’s user of the property being termed as authorised, there is no question of the petitioner being called upon to remove the building. He further submits that section 56 would have no application to the facts of the present case inasmuch as what is effected by the alleged designation in the development plan is the land and its user. The land upon which the building has been constructed together constitutes petitioner’s property or any interest therein. In such circumstances, merely to avoid obligation to acquire the land and pay the market price that the Corporation has resorted to the 5 subject provisions and the notice. Further, while the Appellate Authority was approached by the petitioner to challenge the notice, the appellate authority has referred to the extent of the user and has termed the construction to a certain extent as unauthorised and without any permission. 6. Mr.Desai appearing for Ulhasnagar Municipal Corporation refers to the notice and invites my attention to the legal provisions so also the map which is annexed to the affidavit filed on record. 7. After perusing the petition and the annexures thereto, including affidavit filed in reply and rejoinder, I am of the view that petitioner’s property is clearly affected by the proposed 35 feet wide public street and the structure/building would be as stated in the notice, offending the provisions of the 6 development plan. The Development Plan and the designation is not in dispute. It is also not in dispute that the building of the petitioner was put to commercial use. In my view, if the contents of notice are construed in the backdrop of section 56 so also designation in the Development Plan, then, it is not possible to agree with Mr.Kanuga that the said notice is contrary to law or that section 56 would have no application to the facts of the present case. 8. In my view, reading the notice as a whole and in the light of the development plan, it would be fair, just and proper to conclude that the planned designation will have to be implemented and for that purpose, petitioner’s structure offending the same must be removed. Ultimately, by providing 35 feet wide public street, larger public interest is being served and the Corporation is obliged to implement designation and proposals in the plan and could 7 have resorted to the legal provisions in question. Similarly, the legal provision itself takes care of the apprehension of the petitioner. If upon the notice issued under section 56 being implemented or being complied with by the petitioner, if he claims that the land itself is incapable of reasonably beneficial use, he may within the period specified in the notice or within such period after the disposal of the appeal and in the manner prescribed, serve on the State Government a purchase notice requiring his interest in the land to be acquired and thereupon section 49 comes into play. In such circumstances, the petitioner has no apprehension because his interest in the land, can be acquired after he complies with sub-section 5 of section 56 and serves requisite notice. It is open for him even now to serve the notice. Mr.Kanuga after taking instructions states that the notice has already been served on the Authority specified viz., the State Government and that is 8 received by it on 27th October 2007. In my view, having regard to the provisions contained in section 56(5) the petitioner would be well advised and to avoid any technical objection in future, to serve fresh notice in terms of the notice already served on the State Government. After such a notice is served, the consequences in law shall always follow. 9. To enable the petitioner to comply with the notice and to also serve a notice in terms of section 56(5) and 56(4) if not already served, at a request of Mr.Kanuga, three months’ time is granted to do the needful. If within this period of three months, the petitioner does not comply with the notice dated 31st August 2004, then it is open for the Corporation to take such steps as are permissible in law to remove the structure. It would be open for the petitioner to also serve a notice under section 56(4) of the M.R.T.P. Act, if not already served. 9 10. If the petitioner has already served a notice under section 56(5) within the period stipulated by law, after disposal of the appeal in the prescribed manner and has a proof of its receipt, then it would not be incumbent upon the petitioner to serve a fresh notice but merely because he has earlier served a notice under section 56(5) and has not resorted to section 56(4) that would not prevent him from resorting to section 56(4) even today and the petitioner may serve invoking section 56(4) within the above-mentioned period. Mr.Kanuga states that he has already served both notices within the time prescribed by law. Petition dismissed subject to above clarification. No costs. (S.C.Dharmadhikari, J)