skc 1 WP-7731-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7731 OF 2011 Balaram Piraji Shingte ..Petitioner versus The Pune Municipal Corporation & Ors. ..Respondents Mr. P. K. Dhakephalkar – Sr. Advocate with Mr. Tejesh Dande for Petitioner. Mr. R. M. Pethe for Respondent No. 1. Mr. S. R. Nargolkar - Government Pleader for State. CORAM : S. A. BOBDE AND SMT. V. K. TAHILRAMANI, JJ. DATE : DECEMBER 13, 2011 P.C. : Rule, returnable forthwith. The learned counsel for the respective respondents waive service. Heard finally by consent of parties. 2. The petitioner is aggrieved by specification of FSI in the permission granted to him to construct on property bearing Plot No. 51 in Bhusari Colony, Pune. 3. Learned counsel for the Corporation submits that Section 47 of the Maharashtra Regional and Town Planning Act, 1966 provides for an appeal skc 2 WP-7731-11 against such an order and therefore this petition may not be entertained. 4. Learned counsel for the petitioner submits that there is no appeal provided for in a case like the present where the Corporation has granted permission to construct. According to the learned counsel the permission does not contain a condition in which case an appeal would have been tenable. According to the learned counsel the permission merely specifies that the petitioner shall be entitled to use FSI to the extent of .75. 5. Section 47 of the MRTP Act reads as follows: “47. Appeal.- (1) Any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45 may, within forty days of the date of communication of the order to him, prefer an appeal to the State Government or to an officer appointed by the State Government in this behalf, being an officer not below the rank of a Deputy Secretary to Government; and such appeal shall be made in such manner and accompanied by such fees (if any) as may be prescribed. (2) The State Government or the officer so appointed may, after giving a reasonable opportunity to the appellant and the Planning Authority to be heard, by orders dismiss the appeal, or allow the appeal by granting permission unconditionally or subject to the conditions as modified.” skc 3 WP-7731-11 From a plain reading of Section 47, it appears that an appeal may be preferred by an applicant if he is aggrieved by either an order granting permission on conditions or an order refusing permission. Thus the section contemplates an appeal even in respect of an order granting permission if the permission imposes conditions illegally or which are not capable of compliance. Thus the phrase an order granting permission on conditions will cover a case where the Planning Authority imposes a condition requiring or enabling the builder or the applicant to make construction on the basis of a certain FSI. In other words, if the construction is restricted by certain FSI and an applicant is aggrieved thereby it would be an order granting permission on condition. In view of the alternate remedy available to the petitioner we are not inclined to entertain this petition. The learned counsel for the Corporation states that if the petitioner prefers an appeal within a period of two weeks from today, the Corporation would not raise any objection on limitation. 6. Rule is discharged. No order as to costs. (S. A. BOBDE, J.) (SMT. V. K. TAHILRAMANI, J.)