(1) SA. 568.2005 & 626.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 568 OF 2005 Sant Eknath Mandir Trust, Aurangpura, Aurangabad, Through it's President .. Appellant VERSUS (1) Satish Ganpatrao Vaidya, Aged about 46 years, Occu.: Landlord, R/o 'Audumbar', Mun. House no. 4-10-37 (City Survey No. 4874) Aurangabad (2) Municipal Corporation of the City of Aurangabad (Through its Administrator/ Commissioner) .. Respondents WITH SECOND APPEAL 626 OF 2005 Sant Eknath Mandir Trust, Aurangpura, Aurangabad, Through it's President .. Appellant VERSUS (1) Satish Ganpatrao Vaidya, Aged about 46 years, Occu.: Landlord, R/o 'Audumbar', Mun. House no. 4-10-37 (City Survey No. 4874) Aurangabad .. Respondent (2) SA. 568.2005 & 626.2005 AND CIVIL APPLICATION NO. 4339 OF 2005 IN SECOND APPEAL 626 OF 2005 Sant Eknath Mandir Trust .. Applicant VERSUS Satish Ganpatrao Vaidya and anr. .. Respondents Mr. V.I. Thole, Advocate for the appellants/applicant Mr. D.K. Kulkarni, Advocate for the respondent Mrs. Manjusha Deshpande, Advocate for the respondent no. 2(in S.A. 568.2005 only) ... CORAM : A.V. NIRGUDE, J. DATED : 23RD FEBRUARY, 2010 ORAL ORDER:- 1] These two appeals are filed against the common judgments passed by the Courts below holding that the building permission granted in favour of the appellants in 1993, was illegal. The dispute between the parties can be described as under:- . The land/stucture CTS. no. 4889 belongs to the appellant and the property CTS. no.4874 belongs to the respondent no.1. In 1990 or so, the appellant Trust proposed development of their property and to construct a marriage hall on it. In 1990, they obtained building permission from the Municipal authorities and started construction. The (3) SA. 568.2005 & 626.2005 respondent no.1, the owner of the adjoining plot, raised objection to the construction permission to the Corporation. It was his case that the required open space of three mtr. width on the western side of the appellant's property, was not left as per building bye-laws and Development Control Rules for Municipal Corporations of Maharashtra, 1983 (hereinafter be referred as "bye-laws" for short). The Corporation issued stop work notice and directed the appellant to appear before it. By that time, the respondent no.1 had filed it's first suit seeking declaration that the permission of 1990 was illegal etc. In 1993, the Corporation, it appears, issued a revised permission in favour of the appellant. This time, the Corporation required the appellant to leave open space of 1.5 meter on three sides of the appellant's property. Accordingly, it appears, the construction was made. While this construction was going on, the respondent no.1 filed his second suit in which he still contended that even the revised building permission was illegal and was issued in violation of the building bye-laws. The trial Court decided both the suits by a common judgment. The trial Court held that the appellant was entitled to go back to the Corporation once again and directed the Corporation to re- consider the issue of building permission as per law. It was the respondent's turn to challenge this order in the first appeal Court. He filed two (4) SA. 568.2005 & 626.2005 appeals and challenged the judgment and findings of the trial Court. The first appeal Court held that the permission of 1993, itself was illegal. As against this judgment, the second appeals are filed. It was the case of the appellant that earlier the Corporation had interalia directed the appellant to keep three mtr. wide open space on the western side of the building but while revising the building permission, utilising the discretionary powers under sub paragraph no.(b) of by law no. 6.6, the width of the open space was reduced to 1.5 Mtr. In order to appreciate this aspect one must read the provision. The bye-law 6.6(b) reads as under:- "6.6 Discretionery Powers - ... ... (b) In specific cases where a clearly demonstrable hardship is caused the Commissioner may by special written permission- (i) permit any of the dimension prescribed by these byelaws to be modified provided the relaxation sought does not violate the health safety fire safety, structural safety and public safety of the inhabitants, the buildings and the neighbourhood. (ii) grant temporary permission for a period not exceeding one year at a time. while granting permission under (i) and (ii) conditions may be imposed on size, cost or duration of the structure abrogation of claim of compensation, payment of deposit and its forfeiture for non- compliance and payment of premium." (5) SA. 568.2005 & 626.2005 In short, the appellant tried to take shelter of the discretionary powers provided as mentioned above. Although such plea was not taken in the written statement and it appears, it was put forth at the time of arguments made before the first appeal Court. The Court rejected such belated plea and rightly so. In the absence of a specific plea taken in the written statement and in absence of evidence that the commissioner using these discretionary powers had passed special written permission required by the sub paragraph no.(b) of the building bye-law no. 6.6, I do not find any illegality or perversity in such findings. The second point put forth by the appellant is that since the building is constructed in a gaothan area, the developer is not duty bound to keep any open space around his building. In order to substantiate this assertion, the learned Advocate appearing for the appellant, produced before me "Part Plan of (Revised) Development Plan" of Aurangabad. A copy of the plan is taken on record. Learned Advocate for the appellant placed reliance on bye-law no.15 (N-1) of the Building Bye-laws, which reads as under:- "N-1-Open Spaces and Area Height Limitations in Gaothan Areas (Core Sector) or Similar Congested Areas as may be specified in the Development Plan." (6) SA. 568.2005 & 626.2005 He tried to suggest that as per this development plan no open spaces are specified in the development plan and so, his client was not duty bound to keep open spaces around his property. However, plea is in-consistent with their own case. It was not taken while the case was before the courts below. The facts of the appellant's case show clearly that they never sought permission of the building on the basis of the above submission. They did not submit a plan which did not provide open space around the proposed building at all. On the contrary they had accepted initially the building permission granted by the Corporation which required them to leave open space of three mtr. width on three sides and thereafter, they accepted the revision in the plan when this width was reduced to 1.5M on all three sides. It appears, the construction was made almost on such lines. [At present the width between the property of the respondent no.1 and appellant on the western side is 1.36 Meter.] In view of this, the appellant can not now seeks to place reliance on the development plan and provisions made thereunder. Besides, the plan produced before the Court does not specifically say that no open spaces are specified in gaothan area. 2] In view of this, there is hardly any substantial question of law arising in these Second (7) SA. 568.2005 & 626.2005 Appeals. Both the Second Appeals are dismissed. Consequently Civil Application no. 4339 of 2005 in Second Appeal no. 626 of 2005, also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp