1 CA No.10151/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Civil Application No.10151 Of 2009 In Writ Petition No. 4045 Of 2005 M/s MR Mutha, Duly Registered Partnership Firm, Through its Partner Shri Jawahar Mohanlal Mutha. .. Applicant. Versus The State of Maharashtra & Others. .. Respondents. -------- Shri. R.R. Mantri, Advocate for applicant. Shri. S.K. Kadam, Assistant Government Pleader, for respondent Nos.1 and 3. Shri. A.P. Bhandari Advocate for respondent No.2. Shri. P.M. Shah, Senior Counsel, for respondent No.5. -------- CORAM: NARESH H PATIL & SHRIHARI P DAVARE, JJ. Date on which order is reserved : 16th December 2010 Date on which order is pronounced: 21st December 2010. 2 CA No.10151/2009 ORDER (PER NARESH H PATIL, J.): 1) This civil application is filed by M/s MR Mutha, duly registered partnership firm through its Partner Shri. Jawahar Mohanlal Mutha, who is original respondent No.5 in the proceedings of Writ Petition No.4045 of 2005 filed by Ahmednagar Municipal Corporation. This application was filed on 23/24 September 2009 with a prayer to vacate the order of status quo passed by this Court on 12-9-2007 or suitably modify the same. 2) The applicant contends that, tenders were floated on 24-2-2003 on the basis of "Finance, Built and Transfer (FBT). The Builder was to construct and handover a stadium having 40000 sitting capacity with other sports infrastructure and the ladies hostel with ultra modern facilities as specified in the plan. Rest of the property i.e. one lakh square feet area was to be developed and disposed of by the builder for commercial purpose on 99 years lease basis to reimburse himself. The applicant submits that, after following due procedure on 25-7-2003 the bid of the applicant was accepted. On 7-9-2003 3 CA No.10151/2009 agreement was executed and the work order was issued on 1-11-2003 by the respondent No.2 - Ahmednagar District Sports Complex Committee, which is a society registered under the Societies Registration Act, 1860. A time bound construction plan was to be completed within 18 months and after few extensions duly granted by the Committee by April 2005 almost 95% work was completed by the applicant. The applicant contends that on 10-12-2003 the Committee revised its plan for construction and duly submitted it to the respondent - Ahmednagar Municipal Council for sanction. By that time, the Municipal Council was converted into Municipal Corporation. On 17-1-2004 the plan was further revised which was again submitted. The applicant points out that, in spite of reminders dated 2-6-2004 and 11-6-2004 the respondent Corporation neither granted nor rejected the plan. The applicant, therefore, contends that, in view of the provisions of Section 45(5) of the Maharashtra Regional and Town Planning Act 1966 the permission was deemed to have been granted. On 7-7-2004, according to the applicant, the respondent Committee directed the applicant to undertake and complete the construction as per the plan as 4 CA No.10151/2009 mentioned above. The applicant transferred 70 shops from the construction of shopping complex as per the plan submitted on 10-12-2003 and 17-1-2004 i.e. from A and B Complex. 3) Learned Counsel Shri. R.R. Mantri appearing for the applicant - Builder submitted that, writ petition was not maintainable on behalf of the Ahmednagar Municipal Corporation. The prayer which was not prayed for by the petitioner, was granted by this Court. It was submitted that revised plan was submitted to the Corporation in respect on which no decision was communicated and in view of the provisions of Section 45(5) of the MRTP Act, permission was deemed to have been granted by the Corporation. Therefore, the Corporation now is not entitled to say that the builder was carrying out construction activities against the sanctioned plan. The stadium which was constructed is already put to use and in stead of exercising powers in accordance with law, the Municipal Corporation approached this Court with mala fide intention. The counsel referred to the provisions of Maharashtra Regional and Town Planning Act 1966 more 5 CA No.10151/2009 particularly the provisions of Sections 51 and 53 of the Act. It was submitted that the Builder is incurring financial losses due to the order of stay granted by this Court. Therefore, the order needs to be vacated or suitably modified so that the applicant takes steps in accordance with the agreement executed between the builder and the Committee. 4) Learned Senior Counsel Shri. P.M. Shah appearing for the original petitioner - Ahmednagar Municipal Corporation, submitted that the applicant has no locus standi to file independent application for vacating stay order as he was acting as an agent of respondent No.2 - Ahmednagar District Sports Committee. The application is in nature of review which, according to the counsel, is not permissible. This Court had passed a speaking order while admitting the petition in the year 2007. Learned Senior Counsel submitted that the development plan in respect of subject site did not authorise construction of shopping complex. The initial permission to the plan submitted by the respondent No.2 Committee was granted strictly in accordance with the development plan of the 6 CA No.10151/2009 Ahmednagar Municipal Corporation. No activities would be permitted to be carried out, may be undertaken by the Committee, registered under the Societies Registration Act, 1860, which was constituted by the respondent No.1 - State of Maharashtra by issuing Government Resolution dated 16-11-1998. The respondent No.2 was entrusted with the construction of sports complex at District Headquarters i.e. Ahmednagar. Respondent No.3 - Collector Ahmednagar is Ex-officio Chairman of the respondent No.2 - Committee. 5) Learned Senior Counsel further submitted that the respondent No.2 - Committee filed appeal in the year 2005 before the Principal Secretary, Urban Development Department, Government of Maharashtra praying to set aside the order passed by the Municipal Corporation Ahmednagar refusing to grant sanction to the revised plan and refusal to issue completion certificate which was still pending. It is submitted that the theory of deemed permission, in the facts of the case, cannot be made applicable.. The Corporation in stead of taking drastic steps in accordance with the MRTP Act preferred to adopt 7 CA No.10151/2009 a milder approach and, therefore, filed writ petition in this Court bringing to the notice of this Court the facts of the case. The Corporation would take appropriate steps in respect of unauthorized construction in accordance with law. The counsel made it clear that in spite of there being no occupancy certificate issued by the Corporation the stadium is being used. In respect of plea of deemed permission granted to the revised plan, the counsel referred to the reported judgments:-- (1) Vithal Ramchandra Devkhar v. State of Maharashtra, 2001 (2) Bom.C.R. 760; and, (2) Ghanshyam Chandumal Harwani v. State of Maharashtra, 2007 (6) Bom.C.R. 239. 6) The learned counsel appearing for the Committee submitted that, the petition raises disputed questions of fact. A registered deed was executed in favour of the Committee by the Builder. Writ remedy is not an appropriate remedy, in the facts of the case. In respect of appeal filed by it before the State Government it was submitted that the appeal is still pending before the Government. The counsel submitted that, in the light of the 8 CA No.10151/2009 Government Resolution and the provisions of the MRTP Act, permission was deemed to have been granted to the construction carried out. Therefore, the counsel prayed for vacation of the interim relief. 7) The civil application was extensively heard on merits by this Court. Writ petition was filed by the Ahmednagar Municipal Corporation on 7th May 2005. On 12th September 2007 by a speaking order the petition was admitted and interim relief was granted. The present applicant, respondent No.5, M/s MR Mutha, a partnership firm, was added as party respondent under the leave granted by this Court on 12-10-2007. The present application is filed on 24-9-2009. All the respondents including respondent No.2 were heard while the petition was admitted and interim relief was granted. 8) We have perused the record placed before us and considered the submissions advanced by the learned counsel appearing for the parties. We have perused the judgments cited supra before us. 9 CA No.10151/2009 9) The contention of the Ahmednagar Municipal Corporation is that the subject construction was carried out contrary to the development plan, therefore, the plea of deemed permission to the revised plan submitted with the Corporation is not sustainable. The concept of "deemed sanction" is available to presume that the sanction is granted in accordance with development plan and the sanctioned construction plan. We may usefully quote the relevant observation of the Division Bench in the case of Ghanshyam in para 8 : "8. It is obvious that if construction itself cannot be sanctioned under Development Control Rules or Building Bye-laws, the concept of deemed sanction is not applicable to such construction. Provision for deemed sanction is made in these Rules or bye-laws to induce sanctioning authority to act promptly. However, said promptness is introduced considering the fact that consequent work to be undertaken after sanction is to be completed within stipulated time by its owner. Owners also wish to avoid rising costs of construction. The concept of deemed sanction is therefore not available to presume that sanctioning authority has done something or permitted something which it itself cold never have done or permitted. Thus construction which could never have been sanctioned is never deemed to have been sanctioned under this concept. Said concept is attracted when plan is perfectly in accordance with law and still the sanctioning authority does not consider it within 60 days. Some relief in equity can be considered if unauthorized construction made by invoking this principle is only irregular and compoundable under law. ......." 10 CA No.10151/2009 10) It has been argued that the appeal filed by the respondent No.2 - Committee before the State Government is still pending. The learned Assistant Government Pleader during the course of hearing submitted that instruction were still awaited in respect of pendency of the appeal. The issue in respect of the revised plan being submitted was raised and considered earlier when the writ petition was admitted. The learned Senior Counsel appearing for the original petitioner submitted that in spite of there being no occupancy certificate, the stadium and part of its constructed premises are being used for which the Corporation be permitted to take suitable action. 11) In the facts of the case we are not inclined to vacate the interim order directing the parties including the applicant to maintain status quo regarding the premises / shopping complex which are part of commercial complex. We had already clarified that the order passed in the year 2007 while admitting the petition would not affect pending proceedings initiated by the Committee by way of appeal pending before the State Government. Unfortunately the appeal is said to be still pending. 11 CA No.10151/2009 12) We are not convinced with the contentions raised by the applicant, the Committee and the State for vacating the interim order granted by us. We do not find any merit in the civil application. 13) The civil application is rejected. Sd/- Sd/- (SHRIHARI P DAVARE, J.) (NARESH H PATIL, J.) rsl