KBP 1 wp2097-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2097 OF 2011 Ashok Genu Kalate ..Petitioner Vs The State of Maharashtra and ors. ..Respondents WITH WRIT PETITION NO.2098 OF 2011 Mohan Pandurang Kalate ..Petitioner Vs The State of Maharashtra and ors. ..Respondents WITH WRIT PETITION NO.2099 OF 2011 Dilip Genu Kalate ..Petitioner Vs The State of Maharashtra and ors. ..Respondents -- Mr.A.V.Anturkar with Mr.Sandeep Salunkhe, for petitioner (in all petitions) Mr.S.P.Thorat, for respondent no.2. (in all petitions). -- CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. RESERVED ON : 18 th APRIL, 2011 PRONOUNCED ON : 4 th MAY, 2011 KBP 2 wp2097-11.sxw JUDGMENT (per R.G.KETKAR, J.) Rule. Learned AGP waives service for respondent no.1. Mr.Thorat, learned counsel waives service on behalf of respondent nos.2 to 4. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2] The petitioners have challenged order dated 5 th March, 2011 passed by the Municipal Commissioner of Pimpri Chinchwad Municipal Corporation (for short “the Corporation”) as also the notice dated 2 nd August, 2010 issued by the Executive Engineer/Ward Officer of the Corporation under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (for short “the Act”). 3] Mr.Anturkar, learned counsel for the petitioners raised following contentions:- (i) The petitioners have filed Writ Petition No.6595 of 2006 in this Hon’ble Court. The said petition was admitted and interim relief in terms of prayer clause (c) was granted on 23 rd March, 2007. Prayer clause (c) of that petition reads as under:- “c. Pending the hearing and final disposal of this petition this Hon’ble Court be please to stay the further proceeding of the acquisitions of petitioners land and the possession of the petitioners may be protected. “ KBP 3 wp2097-11.sxw In view of pendency of the said petition as also operation of the interim order, the Corporation cannot execute the impugned order as also the impugned notice issued under Section 53 of the Act. (ii) On behalf of the Corporation, statement was made before this Hon’ble Court in Writ Petition Nos.4065 of 2010, 4074 of 2010 to the effect that notice under Section 53 of the Act will be issued to the owner as also to the occupier. However, no notice to the occupier is issued. Therefore, the notice dated 2 nd August, 2010 is vitiated on that count. (iii) Section 53 of the Act is not applicable in the facts and circumstances of the present case as it applies only when any development of land is carried out as indicted under Section 52(1) of the Act. Section 52 of the Act is applicable only when the development is made (a) without permission required under the Act; (b) which is not in accordance with the permission granted or in contravention of any condition subject to such permission has been granted; (c) after the permission for development has been revoked (d) in contravention of which permission has been revoked duly modified. The properties in question are survey nos.276, 277 and 278 situate at Wakad village, District Pune. On 5 th October, 1982, these lands were included within the Municipal limits of the Corporation. However, the development plan in respect of the Corporation was made only in the year 1995. In other words, when the construction was made by the petitioners, at that time, KBP 4 wp2097-11.sxw development plan of the Corporation was not brought in force. In view thereof, Section 53 of the Act is not attracted. 4] So far as the first submission is concerned, in Writ Petition No.6595 of 2006 the petitioners have challenged the acquisition proceedings in respect of survey nos.276, 277 and 278 situate at Wakad on the ground that the proposal for acquisition was forwarded by the Municipal Commissioner on 27 th November, 2006 to the Standing Committee. The Standing Committee passed Resolution No.8293 on 4 th December, 1996 according sanction for acquisition of the lands. However, the General Body of the Corporation has not submitted proposal to the Government and consequently, the action of the Municipal Commissioner and Standing Committee was without any authority. We have already noted that the said petition was admitted and interim order in terms of prayer clause (c) was granted. In the entire petition, the petitioners have not even alleged the carrying out of any construction/existence of any construction over these lands. We have minutely perused the proceedings in Writ Petition No.6595 of 2006. We have not come across any assertion made in the petition to that effect as also the annextures do not reflect any construction carried out by the petitioners. Having regard to prayer clause (c), we are of the opinion that this Court has stayed the acquisition proceedings in respect of these lands and possession of the petitioners is protected. In the present petitions, we are concerned with the validity of the order passed by the Municipal Corporation on 5 th March, 2011 and notice dated 2 nd August, 2010. Pendency of that petition and interim order will not come in the way KBP 5 wp2097-11.sxw of the Corporation in executing the impugned order and the notice inasmuch as the subject matter in the present petitions and W.P. No.6595 of 2006 are different. We, therefore, do not find any substance in this contention. 5] As far as the contention raised by the petitioners that despite statement being made before this Court that notices under Section 53 are to be issued to the owner as well as to the occupier, the Corporation has issued notice only to the owner and not to the occupier is concerned, perusal of the order dated 5 th March, 2011 indicates that the Municipal Commissioner has recorded finding that the concerned Regional Officer has ensured that owner and occupier have been served with the notice. In view of this finding, we do not find any substance in the contention that the Corporation has not issued notice to the occupier. 6] It is contended that Section 53 of the Act is not applicable in the facts and circumstances of the present case. The lands in question were included within the Municipal limits on 5 th October, 1982. However, the development plan in respect of the Corporation was made only in the year 1995. In other words, when the construction was made by the petitioners at that time the development plan of the Corporation was not in force and consequently, Section 53 of the Act is not attracted. We do not find any substance in this contention. It is not in dispute that the regional plan for Pune Metropolitan Region was sanctioned by the Government vide Government notification dated 27 th February, 1976 for 1970-1991. The said plan was prepared under the provisions of the Act. By Government KBP 6 wp2097-11.sxw Notification dated 18 th May, 1990, Pune Metropolitan Region was redefined and the entire revenue district of Pune was included for preparation of regional plan. The draft regional plan for Pune was published on 13 th September, 1993 for the period 1990-2011. The draft regional plan was modified and submitted to the Government for sanction on 30 th January, 1995. The Government sanctioned the said plan vide notification dated 25 th November, 1997 and the said plan came into force w.e.f.10 th February, 1998. Section 53(1) of the Act provides that where any development of land has been carried out as indicated in sub-section (1) of Section 52, the Planning Authority may, subject to the provisions of that section, serve on the owner a notice requiring him to take steps as may be set out therein. Section 52 (1)(a) of the Act provides that any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land without permission required under this Act shall be punished with imprisonment. In the instant case, on 5 th October, 1982 lands in question were included within the Municipal limits of the Corporation. However, prior thereto they were included in the regional plan for Pune Metropolitan Region. Section 18 of the Act lays down as under :- “18. Restriction on change of user of land or development thereof- (1) No person shall or [after the publication of the notice that the draft Regional Plan has been prepared or the draft Regional Plan has been approved], institute or change the use of any land without the previous permission of the Municipal Corporation or Municipal Council, within whose are the land is situate and elsewhere, of the Collector. KBP 7 wp2097-11.sxw (2) Notwithstanding anything contained in law for the time being in force, the permission referred to in sub-section (1)shall not be granted otherwise than in conformity with the provisions of the draft or final Regional Plan.” Thus, after publication of notice of the draft regional plan, no person can institute or change the use of any land without previous permission of the Municipal Corporation or Municipal Council or Collector as the case may be. Since the lands were neither included in the municipal limits of Corporation or Council, previous permission of Collector was necessary. Admittedly, in the present case the petitioners have not obtained previous permission from the Collector under the provisions of the Act as required by Section 52 (1) (a) of the Act. We, therefore, do not find any substance in the contention that since lands in question were included in Municipal limits on 5 th October, 1982 and the development plan was prepared in the year 1995 and consequently, Section 53 of the Act is not applicable. 7] Mr.Anturkar further invited our attention to the order dated 9 th August, 2010 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No.21166 of 2010. That SLP was preferred against the judgment and order dated 14 th July, 2010 passed by this Court in Writ Petition No.4065 of 2010. In particular, he invited out attention to the following observations in the order of the Apex Court :- KBP 8 wp2097-11.sxw “ .... It is, however, open to the petitioners to bring to the notice of Pimpri Chinchwad Municipal Corporation, as also the High Court, the existence of interim order dated 23.3.2007 in W.P. No.6595/2006 and seek consequential reliefs. The order of status quo granted by the High Court is extended for a period of four weeks from today.” 8] We have already noted the subject matter in Writ Petition No.6595 of 2006 pertaining to the challenge raised by the petitioners about acquisition proceedings. In the present petition, we are concerned with the validity of the order dated 5 th March, 2011 passed by the Municipal Commissioner and notice dated 2 nd August, 2010 issued under Section 53 of the Act. We are of the opinion that the petitioners cannot derive any benefit of the order dated 9 th August, 2010 passed by the Apex Court. Feeble attempt was made by Mr.Anturkar by contending that Section 53 of the Act is in Chapter IV dealing with control of development and use of lands included in development plans. He submitted that it is permissible to assign the heading or title of a section a limited role to play in the construction of statutes. We do not find any substance in this submission as well. In case of conflict between the plain language of the provision and the meaning of the heading or title, the heading or title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder as held in Raichurmatham Prabhakar Rawatmal Dugar, (2004)4 SCC 766. KBP 9 wp2097-11.sxw 9] Before parting, we note that earlier petitioners had filed Writ Petition Nos.7585 of 2010, 7586 of 2010 and 7587 of 2010. The said petitions were disposed of by the Division Bench of this Court (Coram:P.B.Majmudar & A.S.Sayed, JJ.) on 25 th January, 2011. In those petitions, on behalf of the Corporation, submission was made that the petitioners may approach to the Corporation under Section 53(3) of the Act wherein all the contentions of the petitioners, including whether the construction in question is authorised or not, shall be considered in accordance with law and while considering the same, the respondent-Corporation shall also decide the applicability of Section 53(1) of the Act. In view of that submission, the petitioners were permitted to make an appropriate application/representation as contemplated under Section 53(3) of the Act. The Corporation was directed to take appropriate decision in accordance with law after hearing the petitioners. It was also made clear that, if in the alternative, application for regularisation of the construction is made, the same may be considered in accordance with law and hearing may also be given to the petitioners in that behalf. 10] In paragraph 6 of the order dated 5 th March, 2011, the Municipal Commissioner recorded finding that Section 53(3) permits any aggrieved person to present application for regularisation of the structure under Section 44 of the Act. However, in the present case, on enquiry, he found that the petitioners herein have not filed any such application for regularisation under Section 44 either with the City Engineer or with the Building Permission department within 15 days from the date of the order and therefore, regularisation of the impugned structure was not considered. KBP 10 wp2097-11.sxw On the other hand, learned counsel for the petitioners submitted that petitioners are not supposed to make application for regularisation of the structure as the said structure is built prior to 1995. The Commissioner recorded finding that he does not find any merit in that argument. Thus, though while disposing of the earlier petitions, this Court permitted the petitioners to submit application for regularisation of construction, the petitioners did not choose to avail of that opportunity. 11] In the result, we do not find any substance in these petitions. Petitions are dismissed. Rule is discharged with no oder as to the costs. 12] At this stage, learned counsel for the petitioners states that this order may be stayed because the petitioners are desirous of challenging this order in the Supreme Court. In the circumstances, the order is stayed for eight weeks from today on the condition that the petitioners file an undertaking that in case they do not get favourable order from the Supreme Court they shall demolish the offending structure at their own cost. Undertaking to be filed within two weeks from today. [R.G.KETKAR, J.] [SMT.RANJANA DESAI, J.]