1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 7622 OF 2005 Jalgaon Jillha Primary Teachers Association, Through Power of Attorney Holder Indarkumar Tolaram Modiyani, Age: 42 years, Occu.: Business, R/o Nataraj Talkies Road, Gandhinagar, Jalgaon, Dist. Jalgaon. ... PETITIONER VERSUS 1. Jalgaon Municipal Corporation, Through, Commissioner, Mahatma Gandhi Road, Nehru Chouk, Jalgaon. 2. State of Maharashtra, Through Secretary, Urban Development Department, Mantralaya, Mumbai. (Copy to be served to G.P.) ... RESPONDENTS *** Mr. S. V. Gangapurwala, Advocate i/b Mr. P. P. Chavan, Advocate for the Petitioner. Mrs. V. A. Shinde, A.G.P. for the Respondents. *** CORAM: S. B. DESHMUKH & S. P. DAVARE, JJ. DATED:- 13th NOVEMBER, 2009. ORAL ORDER: [Per Deshumukh, J.] 1. We have heard learned counsel for the respective 2 parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. Petitioner, in this writ petition, is Jalgaon Jilla Primary Teachers Association. In para 3 of the writ petition, it has been stated by the Petitioners that the Petitioner association is established and working since 1953 for the benefit and development of primary teachers. Petitioner owns land C.T.S. No.2676 1/5B. It is further stated that the Petitioner association has no permanent source of income and therefore, the petitioner decided to construct a shopping complex on the land. This petition is filed by power of attorney holder on behalf of the petitioner association. A statement is made in para 4 that the Chief Officer of the Municipal Council, Jalgaon directed the Petitioner to deposit the betterment, development charges and other expenses. This letter is dated 5th March, 1992. Petitioner accordingly deposited the charges with the Respondent Municipal Council/ Corporation. In para 5, statement is made that the permission for construction was granted by the Municipal Council/ Corporation on 3rd April, 1992 and development as sought by the petitioner 3 was approved. Annexure-E is the copy of permission and Annexure-F is copy of approved map. According to the Petitioner, despite this fact, Respondent Municipal Council/ Corporation issued an order of demolition of construction, dated 7th November, 2005. It is this order/ communication, which is challenged in this writ petition, filed by the Petitioner somewhere on 19th November, 2005. Notice before admission was issued on 5th December, 2005 after hearing the parties present before the Court. 4. One more order seems to have been passed by this Court earlier i.e. dated 22nd February, 2008. This court directed the Corporation to depute the officer, not below the rank of Executive Engineer, to visit the site, file affidavit along with photographs showing encroachment and unauthorised construction made by the Petitioner. 5. Learned counsel Mr. Gangapurwala for the Petitioner submits that the development of the property and/ or construction of the building in question was with due permission from the Municipal Council/ Corporation concerned. He points out permission granted by the Municipal Corporation for construction. With this, he points out section 51 of The Maharashtra Regional and 4 Town Planning Act, 1966 [hereinafter referred to as the Act of 1966, for short]. He emphasised on proviso. According to him, in view of this proviso, Corporation is not supposed to issue any order or direction for demolition of the construction carried out by the citizen. We have also considered sections 52, 53, 54, 55 and 56 of the Act of 1966. . Control of development and use of land included in the development plans is a matter government by Chapter IV of the Act of 1966. This chapter starts with section 43 and ends at section 58. Proviso of section 51 cannot be read in isolation. Not only this but section 51 as a whole cannot be read separately. Apart from section 51 of the Act of 1966, section 52, 53 to 56 have to be read meaningfully. Once the permission for development and/ or construction of the building is granted by the council/ corporation, it cannot be said that the person in whose favour such permission is granted can have a development or the construction in his own sweet will. Every council and corporation ordinarily is called as a "planning authority". In fact, it is the duty cast upon the planning authority to see that development of the city/ town concerned has to be in 5 accordance with the Act of 1966. 6. On behalf of the Corporation our attention is drawn to the copy of the map produced on behalf of the petitioner which forms part of this compilation. It is at page 17. This map shows area statement of the land which was subject matter of the development, at the relevant time. This map further shows the distance / margin/ set back which has been assured to be left by the petitioner himself. Such margin or set back as shown in this map is 0.9 Mtrs. Grievance is raised, on behalf of the Corporation, that even this margin, which is shown in the map by the petitioner himself, is not kept. 7. Mr. Gangapurwala for the Petitioner maintains that the set back as mentioned in this map is maintained by the Petitioner while carrying out construction on the property. On behalf of the Corporation, reply affidavit is filed. Along with this reply affidavit Exhibit R/1 (page 43) is the copy of the building bye-laws. User of the building, either residential, commercial, residential-cum-office etc. is being covered by this bye-law No.15.3.1.1. Table is given in this bye-law pertaining to category and road. We are concerned with Item No.4 and margin and/ or set back required to be 6 kept, mentioned as 3 Mtrs. (approximately 9 Ft.). 8. Apart from the contentions of the parties, considering the nature of the controversy, this Court had directed the Corporation to produce on record report and photographs by passing order on 22nd February, 2008. Accordingly report is filed. This report is at page 59. It has been filed with affidavit sworn in by one Sunil Suryakant Bhole, Incharge Site Engineer, Municipal Corporation of City of Jalgaon. We have seen this affidavit with the assistance of learned counsel appearing for the respective parties. Some photographs have been placed on record. We have gone through these photographs. This affidavit, para 3, clarifies the illegal construction Advocate appearing on behalf of the Petitioner Mr. Gangapurwala makes a grievance that Incharge City Engineer, while visiting this site, did not issue notice to the Petitioner. We have referred our order dated 22nd February, 2008, which was passed by this Court in the presence of the learned counsel appearing for the respective parties. This was a direction issued by this Court to Respondent Corporation to depute an Officer not below the rank of Executive Engineer to visit the site, file affidavit along with photographs showing encroachment and 7 unauthorised construction made by the petitioner. In view of this order, we have perused the affidavit. We feel that even though grievance of the petitioner is that he was not noticed by the engineer concerned, this cannot be said to be illegal. Reason is that, the order was passed by this Court on 22nd February, 2008 in the presence of the Petitioner. It appears from the order that, there was no grievance raised on behalf of the petitioner, neither willingness on behalf of the Petitioner was shown to participate such survey inspection or measurement by the executive engineer or officer of the Corporation concerned. In this view of the matter we accept the report placed on record. 10. The counsel on behalf of the Respondent relied on a judgment of the Honourable Supreme Court in the matter of "Shanti Sports Club and another V/s Union of India and others" (unreported). Copy is made available to us. We have seen the facts obtaining in the unreported judgment. Facts are altogether different. However, this judgment pertains to the plan development of the city or town. We have considered para 52 which has been pointed out to us by the Advocate appearing for the Municipal Corporation. In our view, no case for exercise of extra-ordinary 8 jurisdiction is established. 11. Writ petition stands dismissed. Rule discharged. Ad- interim relief granted earlier stands vacated. No order as to costs. [SHRIHARI P.DAVARE, J.] [S.B.DESHMUKH, J.] Dated:13/11/2009. ans/7622 9 WRIT PETITION NO.: OF 200 Date of decision: 13th NOVEMBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. P. DAVARE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE