- 1 - 3-wp-9985-2010 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9985 OF 2010 Vasant D. Zagade & Another .. Petitioners. V/s. Gajanan Developers & Others .. Respondents. WITH WRIT PETITION NO.2310 OF 2011 Gajanan Developers & Others. .. Petitioners. V/s. The District Collector, Pune & Others. .. Respondents. Mr. U. B. Nighot, for the Petitioner in W. P. No.9985 of 2010. Mr. A. A. Kumbhakoni with Mr. T. D.Deshmukh, for the Petitioner in W. P. No.2310 of 2011 and for Respondent Nos.1 to 3 in W.P. No.9985 of 2010. Ms. P. S. Cardozo, AGP for Respondent Nos.4 to 7 in W. P. No.9985 of 2010 and for Respondent Nos.1 to 5 in W. P. No.2310 of 2011. CORAM: G.S.GODBOLE,J. DATE : 17th DECEMBER, 2011. P.C:- 1 RULE. Rule made returnable forthwith and heard by consent of the parties. The respective Advocates for the Respondents waives service. - 2 - 3-wp-9985-2010 2 Heard the learned Advocates for the parties in the respective Writ Petitions. 3 The Petitioners in Writ Petition No.9985 of 2010 have challenged the order passed by the Minister of State for Urban Development, State of Maharashtra, on 10th June, 2010, thereby granting stay of the notice dated 30th March, 2009 which was a notice issued by the S.D.O. for demolition of unauthorized construction. By prayer clause (b), the Petitioners in Writ Petition No.9985 of 2010 have prayed that the Appeal filed by Respondent Nos.1 to 3 before the Divisional Commissioner, Pune Division, Pune being Appeal No. LND/Appeal/PNA/82/2010 be decided expeditiously. By prayer clause (c), a Writ of mandamus is sought against Respondent Nos. 4 to 7 to execute and implement the notice of demolition dated 30th March, 2009 issued by S.D.O. Pune. By an order dated 24th January, 2011 passed in Writ Petition No.9985 of 2010, the stay order passed by the Minister on 10th June, 2010 has been suspended by this Court. As a consequence thereof, the State Government vacated the stay order earlier granted on 10th June, 2010. It appears that the Petitioners in Writ Petition No.2310 of 2011 have, therefore, filed the Writ Petition for challenging the order dated 21st February, 2011 passed by the Hon'ble Minister of State for Urban Development Department whereby the earlier stay order was - 3 - 3-wp-9985-2010 vacated. By prayer clauses (c) and (d), the Petitioners in Writ Petition No. 2310 of 2011 have prayed that till the disposal of Appeal filed before the State Government and till the disposal of application dated 28th April, 2010, filed before the S.D.O., the earlier notice dated 30th March, 2009 may not be implemented. Prayer clause (e) has been inadvertently made since the land in question is admittedly out side the PMC limit. 4 Considering the aforesaid controversy, in my opinion, interests of justice will be served if both these Writ Petitions are disposed off in terms of the following order:- (a) The Petitioners in Writ Petition No.2310 of 2011 will add the Petitioners in Writ Petition No.9985 of 2010 as party Respondents in LND/Appeal/PNA/82/2010, which is filed by them before the Additional Commissioner, Pune Division, Pune. An amendment to that effect will be carried out within a period of two weeks from today. Thereafter, the parties will appear before the learned Additional Commissioner on 6th January, 2012 for fixing further programme of deciding the said Appeal. All the questions about the maintainability or otherwise of the said Appeal are kept open. The learned Additional Commissioner, Pune Division, Pune shall hear and decide the - 4 - 3-wp-9985-2010 said Appeal expeditiously and preferably on or before 30th April, 2012. This directions is being issued in view of the fact that in the mean time, the Collector, Pune Division, Pune as the Planning Authority under Section 18 of the Maharashtra Regional and Town Planning Act, 1966 can hear and decide the application for retention/regularization filed by the Petitioners in Writ Petition No.2310 of 2011. (b) The application for retention/ regularization filed by the Petitioners in Writ Petition No.2310 of 2011 on 6th January, 2010 before the Collector, Pune Division, Pune shall be decided after hearing the Petitioners in Writ Petition No.9985 of 2010 by the Collector, Pune Division, Pune (if not already decided) on or before 31st March, 2012. (c) All contentions of the parties in respect of the maintainability of said applications are kept open. (d) The said applications of the Petitioner in Writ Petition No.2310 of 2011 filed on 6th January, 2010 and another application filed on 28th April, 2010 will have to be decided by the Collector himself as Planning Authority and it is not necessary to forward the said applications for decision to the Urban Development Department of the State Government which - 5 - 3-wp-9985-2010 appears to have been done by the Collector as communicated in the communication/ letter dated 22nd November, 2010 issued by the Collector, Pune Division, Pune to the ADTP, Pune. The Applications for retention filed on 6th January, 2010 and 28th April, 2010 are filed under Section 53 of the said Act of 1966 and, hence, the same will have to be decided by the Planning Authority itself. (e) It is hereby directed that the Collector being the Planning Authority will decide the said applications dated 6th January, 2010 and 28th April, 2010 on or before 31st March, 2012 after giving an opportunity of hearing to the Petitioners in both the Writ Petitions. (f) In so far as Appeal filed by the Petitioners in Writ Petition No.2310 of 2011 before the Minister of State of the Urban Development Department of State of Maharashtra is concerned, that appeal was filed under Section 56(2) of the said Act of 1966. It is apparent from the controversy that Section 56 is not applicable and the action being initiated against Petitioners in Writ Petition No.2310 of 2011 is on account of construction beyond the sanctioned development permission and building plan. In view of this, Mr. Kumbhakoni - 6 - 3-wp-9985-2010 makes a statement that the said Appeal filed before the State Government will be withdrawn by keeping the remedy of filing appropriate proceeding before the appropriate authority after the Collector, Pune Division, Pune and Additional Commissioner, Pune decide proceeding which have been directed to be decided by them pursuant to the aforesaid order. Hence, the Appeal filed before the State Government shall be treated as withdrawn and disposed off accordingly. (g) Rule made absolute in the aforesaid terms with no order as to costs. (h) It is made clear that the rival contentions of the parties about the legality or otherwise of the construction made by the Petitioners in Writ Petition No.2310 of 2011 are kept open for being agitated before the Collector and the Additional Commissioner. (G.S.GODBOLE,J.)