ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1692 OF 2008 PETITION NO.1692 OF 2008 PETITION NO.1692 OF 2008 Rahul Palace ...Petitioner Vs. Additional Chief Secretary Urban Development Dept. & Ors. ...Respondents. Mr.J.S.Chandnani for for the Petitioners. Mr.V.S.Mhaispurkar with Ms.M.P.Thakur, AGP for Respondent Nos.1,2 and 4. Mr.Vijay Patil for Respondent No.3. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 7th August, 2008 : 7th August, 2008 : 7th August, 2008. P.C. P.C. P.C. . Heard Mr.Chandanani, the learned counsel appearing for the Petitioner, Ms.Thakur, the learned AGP for Respondent Nos.1,2 and 4 and Mr.Patil, the learned counsel appearing for Respondent No.3. 2. Rule, made returnable forthwith. The learned counsel appearing for the respective Respondents waive services. By consent of the counsel, the matter is taken up for final disposal at admission stage. 3. The Petition filed under Article 226 of the ( 2 ) Constitution of India, challenges the legality and propriety of an order dated 02/07/2007 passed by Respondent No.2, Designated Authority, as confirmed by Respondent No.1, in Appeal No.TPS-1207/1147/P.K.12/08/NAVI-12 by his order dated 29th February, 2008, whereby the Petitioner’s proposal under Section 3 of the Maharashtra Act No.IX of 2006, for Regulation of Unauthorized Structure in Ulhasnagar is rejected under Section 4 of the said Act. 4. The perusal of the order of Respondent No.2 the Designated Authority reveals that no specific reason is given for refusal of Petitioners proposal, however, it is mentioned that unauthorized development cannot be regularized in view of the provisions of Section 3 Clause (4)(1) of the said Act. 5. The Petitioner preferred an appeal before Respondent No.1. The appeal memo is annexed at page No. 29 Exhibit "F" to this Petition. The Respondent No.1, rejected petitioner’s appeal on the ground that the committee of experts found that a Nala is flowing adjacent to the petitioner’s building. Respondent No.1 further held that in view of above circumstance, it was necessary for the Petitioner to file an ( 3 ) authorized measurement plan showing location of the Nala and since the Petitioner did not submit the authorized measurement plan his proposal was correctly rejected. 6. Mr.Chandanani, submits that the report of expert Committee was never given to the Petitioners. He further submits that the order passed by the Respondent No.2 does not reveal any specific ground for refusal of the petitioners proposal. He submit that the Petitioner came to know the grounds after the decision of the Respondent No.2. 7. Per contra, Mr.Patil, the learned counsel appearing for the Respondent No.3 submits that the expert committee is appointed to assist the Respondent No.2, the designated Authority. The expert committee inspected the Petitioner’s building construction with a view to see whether it can be regularized. The report, annexed at page No.43, Exhibit No.1, specifically shows that some portion of the petitioners building is constructed on existing Nala and in view of this specific report the unauthorized development could not be regularized. ( 4 ) 8. Having heard the learned counsel appearing for the respective parties and having gone through the impugned order alongwith the relevant documents, in my considered view, there is a merit in the contention of the petitioners. Perusal of order of the Respondent No.2 does not reveal any specific ground for rejection of Petitioner’s proposal. The Petitioner was also not made aware of any ground, on which its proposal was rejected. The Petitioner, for the first time at appellate stage came to know that its proposal was rejected on the ground that drainage line is flowing just adjacent to the building. The Appellate Authority dismissed the Petitioners appeal on the ground that Nala (drainage line) is flowing just adjacent to the Petitioners building. Before the Appellate Authority the petitioner’s case was that there is no Nala but there is a Gutter for flowing the water. The Respondent No.1 concluded that, the Petitioner failed to submit authorized measurement plan to show that construction is not affected by Nala. In my view the Appellate Authority could have given an opportunity to the Petitioner to submit authorized measurement plan so as to show that its unauthorized development is liable to be regularized especially when the order of Respondent No.2 did not ( 5 ) disclose any specific reason for rejecting a Petitioner’s proposal. 8. Though the report of the expert committee reveals that some portion of the petitioners building is constructed on Nala. Finding is recorded in the impugned order by the Respondent No.1 that Nala is flowing just adjacent to the Petitioners building. The Petitioner was not made aware by the Respondent No.2 about the report of expert Committee nor it was given any opportunity to show that above report is factually incorrect. In that view of the matter, in my opinion, the impugned order deserves to be quashed and set aside and the matter is required to be remanded back to the Respondent No.2, the Designated Authority for fresh decision. In the facts and circumstances mentioned above, I dispose of this petition by passing the following order. O R D E R R D E R R D E R 1. The impugned orders passed by the Respondent No.2 i.e. Designated Authority on 02/07/2007 and the Additional Chief Secretary, on ( 6 ) 29/02/2008 are hereby quashed and set aside and the matter is remanded back to the Respondent No.2 to decide the Petitioners proposal afresh. It would be open to the Petitioners if they so desire to submit a fresh proposal within a period of four weeks from today. 2. The Respondent No.2 Designated Authority shall consider the Petitioners fresh proposal and if no fresh proposal is submitted, consider the existing proposal in accordance with law and pass fresh order thereon after hearing both the parties. 3. Rule made absolute in aforesaid reasons. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)