1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.806 OF 2011 M/s.D.S.Enterprises Proprietor, James D’Silva .. Petitioner V/s The Managing Director, CIDCO Ltd., and Ors. .. Respondents Mr.M.H.Ahuja for the petitioner. Mr.A.A.Kumbhakoni with Mr.A.M.Kulkarni for the Respondent Nos.1 & 2. Mr.A.I.I.Patel, AGP for Respondent Nos.3 & 4. CORAM: SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 31st March, 2011 P.C.: (Per R.G.Ketkar, J.) 1. The petitioner has challenged the notice dated 07.01.2011 issued by the Assistant Controller of Unauthorised Constructions, City and Industrial Development Corporation Limited (for short ‘CIDCO’). The petitioner has further prayed for declaration that since no action was taken pursuant to the application made by it on 17.06.2010, there is a deemed commencement certificate in its favour under section 45(5) of the Maharashtra Regional & Town Planning Act, 1966 (for short “the Act”). The petitioner 2 has also claimed direction to the Respondent Nos.1 & 2 to restore the existing structure or in the alternate to pay Rs. 72,40,000/- and also return all the goods and documents worth Rs.59 lakhs which were forcibly taken by the 2nd Respondent on 13.01.2011. 2. The controversy in this petition relates to the plot bearing Survey No.316 Hissa No.1A/2 admeasuring 1497.50 sq.meter situate at Panvel, Taluka Panvel, District Raigad (for short ‘suit plot’). It is the case of the petitioner that Survey No.316 is divided into 19 Hissas and total area of Survey No.316 is 15130 sq.meters. Out of this, the CIDCO had acquired 16 Hissas admeasuring 8530 sq.meters and thus the area of remaining 3 Hissas is 6600 sq.meters. The petitioners property viz.Hissa No. 1A/2 admeasuring 1497.50 sq.meters out of 3 remaining Hissas, has not been acquired by the CIDCO. 3. The predecessor in title of the petitioner had obtained Non Agricultural permission from the Collector, Alibaug on 21.02.1964. On 12.03.1964 the original owner -Dehuram Bhagat 3 sold the suit plot to one Shri Gajanan Manishankar Bhagat. On 03.05.1964 said Gajanan expired and his heirs and legal representatives Mr.Bhalchandra Gajanan Bhagat and Smt.Mangagauri Gajanan Bhagat were brought on record. On 13.12.2005 said Bhalchandra expired and his heirs and legal representatives viz.wife Smt.Mangagauri and sons Vijay & Prakash were brought on record. 4. It is the case of the petitioner that on 03.09.2010 he purchased suit plot from these persons. Since the suit plot is not acquired by CIDCO, it vested with the petitioner. The petitioner contended that the suit plot does not fall within the area of CIDCO. Accordingly, on 17.06.2010 an application was submitted to the Collector of Alibaug, District Raigad for reconstruction. Since there was no response from the Collector, Alibaug, there is a deemed permission in favour of the petitioner as contemplated under section 45 (5) of the Act. Despite this position, the officers of the CIDCO issued impugned notice dated 07.01.2011 and thereafter demolished the existing 4 structure. In view thereof, the petitioner has instituted this petition claiming the reliefs more particularly set out earlier. 5. On behalf of Respondent Nos.1 & 2, Sumant Namdevrao Bhanage, Additional Collector (Encroachment) and the Chief Controller of Unauthorised Construction of CIDCO made an affidavit. Relying upon the Notification dated 20.03.1971 issued by the Urban Development, Public Health & Housing Department, it is contended that the suit plot falls within the notified area of CIDCO. Under the said notification, an area comprised in the villages specified in the schedule thereto was designated as a site for new town in the draft regional plan for Bombay Metropolitan Region submitted to the State Government under section 15 of the Act, and the State Government was satisfied that it is expedient in the public interest that the said area should be developed as a site for proposed new town. Therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Act, the Government of Maharashtra designated the said area as a site for 5 the proposed new town to be known by name “New Bombay”. In so far as the present controversy is concerned, following entry in the schedule thereto is relevant: “Panvel Village (excluding the Panvel Municipal area as it stood prior to its extension by Government Notification, Urban Development, Public Health and Housing Department No.DTM 1260/17991-A, dated the 25th May, 1964.” 6. It is further averred in the affidavit that the suit plot is located adjacent to the existing Panvel Railway Station (W). As such, as per the future requirement the suit plot is demarcated by CIDCO for parking area and forecourt area of Panvel Railway Station (W). It is further averred that in the past the predecessor in title of the petitioner had applied for development permission to the CIDCO, which were refused by CIDCO on 25.11.1991, 16.03.1992 and 04.10.1995. It was therefore submitted that the CIDCO being the Planning Authority, an application for permission has to be made to the CIDCO and has to be considered by the CIDCO. The petitioner never made application for permission to the CIDCO. On the other hand, 6 proceeding on the premise that the Collector, Alibaug is the planning authority, the petitioner made an application on 17.06.2010 to the Collector Alibaug. Since there was no response the petitioner contended that it has obtained deemed permission. It is submitted that basically the CIDCO is the planning authority and consequently the application made by the petitioner to the Collector of Raigad is of no significance. Finally it was submitted that pursuant to the impugned notice dated 07.01.2011, the demolition took place on 13.01.2011. The petitioner instituted Regular Civil Suit No.15 of 2011 and obtained interim relief on 15.01.2011. By taking advantage of the ex-parte interim order the petitioner started construction activities on the suit plot. It was ultimately prayed that the petition may be dismissed. 7. The petitioner has relied upon the letter dated 04.01.2011 at Exh. “J” addressed on its behalf to the Collector, Alibaug, Raigad setting out therein that on behalf of the petitioner, an application was submitted on 17.06.2010. They have not 7 received any reply from the Collector and so they have started the work on the suit plot on the assumption that their proposal has a deemed permission. On behalf of Respondent Nos.1 & 2 additional affidavit is made by Parmanand Dashrath Nikumbh enclosing therewith the communication dated 31.01.2011 addressed by the Collector of Raigad to the Architects of the petitioner. It is set out therein that the Collector of Raigad informed the petitioner’s Architect that the Assistant Director of Town Planning, Raigad Alibaug had already informed by a letter dated 07.07.2010 that the suit plot is included within the limits of CIDCO and consequently the development permission will have to be obtained from the concerned department of the CIDCO. 8. We have considered submissions advanced by learned counsel appearing for the parties. 9. It is evident from the record that the predecessor in title of the petitioner had obtained Non Agricultural permission from the Collector, Alibaug, Raigad on 21.02.1964. However, what is 8 relevant to note here is that thereafter the predecessor in title of the petitioner did not obtain the building permission. From the perusal of the Notification dated 20/03/1971 and in particular the relevant portion extracted earlier, it is abundantly clear that the suit plot in Panvel village falls in the area which was designated as a site for the proposed new town viz. New Bombay. The State Government in exercise of powers u/s.113 (3A) of the Act declared CIDCO to be the New Town Development Authority for the area comprised in the site of New Bombay. The declaration was made by the Urban Development, Public Health and Housing Department vide Notification dated 20/03/1971. It is also evident that in the past the predecessor in title of the petitioner had applied for development permission to the CIDCO and the said applications were rejected by CIDCO on 25.11.1991, 16.03.1992 and 04.10.1995. It is an admitted position that neither the predecessor in title of the petitioner nor the petitioner thereafter applied to the CIDCO for building permission. Once it is held 9 that the suit plot falls within the jurisdiction of CIDCO, it was for the petitioner to produce material on record to substantiate that it had obtained building permission from the CIDCO. From the material placed on record, the petitioner has failed to substantiate the said claim. 10.The petitioner has claimed a deemed permission u/s.45(5) of the Act. It is the case of the petitioner that on 17.06.2010 the petitioner applied to the Collector, Alibaug, Raigad for the building permission and since there was no response, there is a deemed commencement certificate u/s.45(5) of the Act. The said submission is wholly misconceived. As indicated earlier, the petitioner ought to have approached the CIDCO and sought building permission. The Collector, Alibaug, Raigad was not the Competent Authority to entertain the application and consequently grant building permission. We therefore do not find any merit in this petition and the same is dismissed. (R.G.KETKAR, J.) (SMT.RANJANA DESAI, J.)