1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4601 of 2001 IN FIRST APPEAL NO. 1134 OF 2001 Mr. Yasin Ibrahim Patel ....Petitioner Vs. The Collector of Thane 2. The State of Maharashtra 3. The Chief Officer Mira Bhayander Municipal Council ....Respondents Bhayander, District Thane. Ms. Gauri Godse, advocate for the applicant. Mrs. S.V.Sonawane, AGP for respondents 1 & 2. Mr. Vaibhav Patankar i/b R.S. Apte, advocate for respondent no.3. CORAM:- A.M.KHANWILKAR AND A.A..SAYED, JJ DATED:- JUNE 29, 2010 P.C. By this Application, the Applicant prays for injunction against the Respondents, their subordinate officers, agents and servants from making any further demolition of any portion of building constructed by the Applicant on the 2 suit property. It is not in dispute that the Appeal is already admitted in terms of order dated 19th October, 2001. The suit as originally filed by the Applicant was for relief of declaration and injunction against the defendants. The suit has been dismissed on the finding that the Applicant had failed to obtain N.A. Permission before undertaking construction of the building. The correctness of this finding is the subject matter of challenge in the present Appeal. In the meantime, the Applicant is willing to apply to the appropriate Authority for grant of N.A. permission without prejudice to the rights and contentions of the Applicant including the issues pending in the present Appeal. It is stated across the bar by the Counsel for the Applicant that if such permission were to be granted by the Collector and thereafter the Corporation was to grant permission to the Applicant to redevelop the property, the Applicant may not pursue the remedy of Appeal pending in this Court. The Applicant, however, apprehends that the Collector would not entertain such application in view of the pendency of the present Appeal. Besides, it is the case of the Applicant that as a matter of fact and law, no such permission is required in relation to the suit land which is located within the Gavthan area. Learned Counsel for the Applicant has invited our attention to Section 44 of the Maharashtra Land Revenue Code, 1966. Relying on the language of Section 44, it was contended that unless the land has already been assessed, the question of requiring permission to change the user of 3 such land is not required more so in relation to land which is situated in Gavthan area. Our attention is also invited to Section 123 (b) which postulates that no land revenue shall be levied in relation to residential building sites situated within the sites of a village, town or city, which is a non urban area. It is the case of the Applicant that the suit land at the relevant time was situated in the non urban area and was not assessed. The definition of non urban area is provided in Section 2(42) of the Code. It is not necessary for us at this stage to examine the correctness of this argument. Since the Applicant is inclined to apply to appropriate authority for permission for change of user of land and comply with all the legal requirements and formalities which, however, is without prejudice to the rights of the Applicant in the pending appeal in this Court, we think it appropriate to direct the Collector to consider the proposed application of the applicant on its own merits in accordance with law without being influenced by the fact of pendency of appeal in this Court. All questions to be decided in the said proceedings are left open. 2. The Counsel appearing for the Corporation submits that once the Collector were to grant permission for change of user within the meaning of Section 44 of the Code, the Corporation will have no difficulty in considering the proposal for redevelopment of the property subject to relevant applicable 4 regulations and that proposal will be decided on its own merits. 3. In view of the above, we dispose of this Application with direction to the Collector to consider the proposed Application of the Applicant, keeping in mind the observations made herein before. That, however, shall be decided within twelve weeks from today provided the Applicant submits the proposed Application on or before 12th July, 2010. The interim arrangement as directed in terms of order dated 19th October, 2001 shall continue during the pendency of the Appeal. Application disposed of on the above terms. (A.A.SAYED, J) (A.M.KHANWILKAR, J)