1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 64 of 1995 MC UDAIPUR V/S DIVISIONAL COMMISSIONER Mr. B.S. CHARAN, for the appellant Mr. JK BHAIYA, for the respondent Date of Order : 7.5.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed against dismissal of the writ petition by the learned Single Judge at admission stage, by simply observing that after hearing the learned counsel for the parties and after going through the petition and the relevant documents, no ground was found to interfere in the extra ordinary jurisdiction. Devoid of unnecessary details, the facts are that the private respondent filed an application on 20.1.1993, for permission to raise certain construction, whereupon the matter was referred to Senior Town Planner, meanwhile, the applicant served notice under Sec. 170 (8) of the Municipalities Act on 29.9.1993, however, thereafter the applicant submitted a revised plan on 12.10.1993, but then continued the construction, thereupon the appellant passed an order dated 26.4.1994 to stop the construction, and remove the illegal construction. Against this order, a 2 revision was filed before the Addl. Divisional Commissioner, which came to be allowed vide order dated 23.5.1994. The learned Addl. Divisional Commissioner directed the appellant to deem the sanction, to have been granted in accordance with opinion of the Senior Town Planner, and revised plan, and to pass necessary orders within 30 days. Seeking to challenge this order Annex.9, the appellant filed the writ petition contending inter alia, that firstly the order of the Municipality was appelable, then it was contended that from perusal of the record, which was called by Addl. Divisional Commissioner, it is clear that there is no notice like notice dated 20.9.1993 said to be under Sec. 170 (8). Thus, it was contended that there was no negligence or omission on the part of the Municipality. Moreover, on 12.10.1993, the private respondent submitted a revised plan before the Senior Town Planner, whereupon the Senior Town Planner gave his technical opinion, and in the midst of these proceedings, construction was started to be raised, then, certain pleadings have been taken about the construction being contrary to the revised plan, in the matter of height, set back and projections etc. The private respondent, in its reply, inter-alia, contended that the revised plan was submitted on 12.10.1993, which was approved by the Senior Town Planner, but the Municipal council did not bother to inform, and ultimately on 09.2.1994, a notice was served by registered 3 post on the Municipal Council, and that after expiry of the statutory period thereafter, the respondent commenced construction with the deemed approval, as such, notice dated 20.4.1994 is illegal, which has rightly been set aside by the learned Addl. Divisional Commissioner. It is also contended in para 4 of the reply that notice sent by registered post on 09.02.1994 was delivered to the Commissioner, Municipal Council on 10.02.1994. The respondent has also produced a copy of the notice dated 09.02.1994, its postal booking receipt, and certificate of delivery thereof as Annex R-2/1,2 and 3 respectively. In our view, from perusal of the pleadings of the parties, and the documents produced by both the counsel, it is clear, that private respondent did submit application for permission on 30.1.1993, which was forwarded to Senior Town Planner, who had certain objections, in order to get over them, the private respondent submitted a revised plan on 12.10.1993, which according to private respondent, was approved by the Senior Town Planner. However, this is not admitted by the Municipal Council, be that as it may. The facts remains that despite expiry of more than one month since 12.10.1993, or even since recommendations of the senior town planner, the appellant did not react in a negative way, as such, the respondent served a registered notice dated 09.2.1994 Annex. R-2/1, which was duly served, as is clear from the Annex. R-2/3, and even thereafter when the appellant did not respond within the statutory period, construction is said to have been started. That being the position, so far as the respondent's raising construction, 4 in accordance with revised plan submitted on 12.10.93 is concerned, that is required to be covered by Sec. 170 (8), of course read with proviso thereof. In that view of the matter, this part of the order of the learned Addl. Divisional Commissioner does not require any interference, as rightly declined by the learned Single Judge. However, since the learned Single Judge has not gone into aspect, about the construction having been raised, or being raised, even in violation or deviation of the revised plan dated 12.10.1993, that aspect was required to be gone into, and in our view, nothing has been shown to us, to the effect, that respondent was in any manner entitled to raise any construction in contravention of revised plan dated 12.10.1993. In that view of the matter, the appeal is partly allowed, and it is directed, that the private respondent should be deemed to be entitled to raise construction in accordance with revised plan dated 12.10.1993, subject to the provisions of proviso to Sec. 170 (8). But then, it is also required to be, and is held, that the respondent is not entitled to raise any construction in contravention, or in deviation, of the revised plan dated 12.10.1993. Obviously therefore, in view of the letter and spirit of the interim order of this court dated 01.2.1995, and the consequent undertaking given by the respondent, it 5 is clarified, that if any construction is raised in contravention, or deviation, of the revised plan dated 12.10.1993, the respondent will remove the same at its own cost, otherwise the appellant will be entitled to remove it. One more aspect remains regarding the appellant's request to recover conversion charge. In our view, it will be open to the appellant to examine this aspect over again, after hearing the respondent, and to decide the matter in accordance with law. If the appellant is ultimately found to be entitled to the charges, the same would be recoverable in accordance with law. (KISHAN SWAROOP CHAUDHARI),J. ( N P GUPTA ),J. /ns. /