1 WP1762.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1762 OF 2011 M/s.Shah Promoters and Developers, Regd. Office at AST-I, Success Chambers, 1232, Apte Road Corner, Deccay Gymkhana, Pune – 411 004. ... Petitioner v/s 1. The State of Maharashtra through its Secretary to the Ministry of Urban Development Department of the Govt. of Maharashtra, Mumbai. 2. The Municipal Corporation, Pune. 3. The Municipal Commissioner, Municipal Corporation, Pune. 4. The Executive Engineer, T.D.R. Cell, City Engineer, Municipal Corporation, Pune. ... Respondents Mr.P.S.Dani with Nitin Mulye for the petitioner. Mr.C.R.Sonawane, A.G.P. for respondent No.1. Mr.A.P.Kulkarni for respondent Nos.2 to 4. CORAM: A.M.KHANWILKAR & R. Y. GANOO, JJ. DATED: 5TH AUGUST, 2011 P.C.: 2 WP1762.11 1. This petition under Article 226 of the Constitution of India primarily takes exception to the decision of the Executive Engineer, T.D.R. Cell, City Engineer, Pune Municipal Corporation, dated 14.2.2011 which rejects the proposal submitted by the petitioner to grant additional T.D.R. in respect of plot bearing Survey No.578/2 admeasuring around 2602 sq. mtrs. situated at Bibwewadi, Pune. From the said communication it is noticed that the said authority proceeded to decide the proposal of the petitioner relying on the communication sent by the Under Secretary, Ministry of Urban Development Department of the Government of Maharashtra, dated 16.8.2007 bearing No.TPS-1807, Pra.Kra.819/07, Exh.”L” page 158 to the petition. That is a clarificatory letter issued in respect of Government Resolution dated 3.2.2007 bearing No.TPS/Sankirna-06/CR-527/06/UD-13. It is indisputable that the said Government Resolution dated 3.2.2007 has already been quashed by the decision of our High Court in the case of Kausarbaug CHS v/s The State of Maharashtra & ors., in Writ Petition No.7006 of 2006. If the original Government Resolution itself is set aside by this Court, the question of deciding the proposal submitted by the petitioner on the basis of clarificatory letter issued by the Under Secretary (Exh.”L”) cannot be contenanced. 3 WP1762.11 The proposal therefore ought to have been examined dehors the Government Resolution dated 3.2.2007 and clarificatory letter dated 16.8.2007. Counsel for the respondent Corporation submits that, to his knowledge, the decision of Kausarbai CHS is already challenged before the Apex Court and the same has been stayed. The said proceedings are still pending before the Apex Court. Even if this contention is to be accepted, the petitioner would be entitled for admission of the writ petition and the petition can be disposed of depending on the outcome of the Supreme Court decision in the matter of Kausarbai CHS. 2. However, instead of resorting to that option, we think it appropriate to set aside the decision of the Executive Engineer which is impugned in this petition, dated 14.2.2011 and relegate the petitioner before the Executive Engineer for his fresh decision on its own merits in accordance with law leaving all questions raised in the present petition open. It will be open to the Executive Engineer to keep the proposal in abeyance till the decision of the Apex Court, if so advised. We keep all the questions open for consideration including that Section 213 of the Act has no application to the present case. Needless to observe that if the petitioner’s plea that Section 213 has no application to the case on hand, then the petitioners may be justified in praying that the consideration 4 WP1762.11 of their proposal need not be delayed as in that case the Government Resolution dated 3.2.2007 nor the clarificatory letter dated 16.8.2007 will have any bearing. 3. We once again clarify that we are not examining the correctness of the argument of the petitioner that Section 213 of the Act has no application to the facts in the present case one way or the other as that is a matter which may have to be examined by the Executive Engineer in remand proceedings. ( R. Y. GANOO, J. ) (A.M.KHANWILKAR, J.) 5 WP1762.11