-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1813 OF 2008 Paras Chambers .. Petitioner. V/s. Additional Chief Secretary, Urban Development Department & Ors. .. Respondents. --- Mr. J.S.Chandnani for the Petitioner. Mr. Vinod Jadhav h/f. Mr.Vijay Patil for respondent no.3. Mr.S.N. Patil, AGP for respondents nos. 1,2 & 4. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 16TH JULY, 2008. DATED : 16TH JULY, 2008. DATED : 16TH JULY, 2008. P.C.: P.C.: P.C.: . Heard Mr.Chandnani, Advocate for the petitioner, learned AGP for the respondent nos. 1,2 & 4 and Mr. Jadhav for the respondent no.3. 2. Rule. Rule returnable forthwith and heard finally by consent of the parties. 3. This petition takes exception to the order dated 29th of February, 2008 passed by the Additional Chief Secretary of the State of Maharashtra, whereby the appeal filed under section 6 of the Maharashtra Act No.9 for regularization of unauthorised constructions in the city -: 2 :- of Ulhasnagar came to be dismissed. Few facts for disposal of the present petition are as follows : 4. The petitioner is a housing society. Each member of the petitioner society has made an application on 25.07.2007 for regularization of the unauthorised development in the prescribed form to the respondent no.2 in pursuance of the provisions of section 3 of Maharashtra Act No.9. Respondent No.2 rejected the petitioner’s proposal by an order dated 16.07.2007 and thereafter the petitioner was constrained to approach appellate authority, namely, the respondent no.1 under section 6 of the aforesaid Act. The petitioner’s appeal also came to be dismissed as stated above and hence, the present petition. 5. The petitioner’s appeal for regularization of unauthorised development came to be dismissed by the respondent nos. 1 on the ground that adjacent to the building constructed by the petitioner there is a drainage line. Appellate authority further observed that it was necessary for the petitioner to file authorised measurement plan for showing the location of the drainage (nalla/gutter). As the said authorised plan has not been submitted by the petitioner, the appeal came to be dismissed. Relevant portion of section 4 is reproduced -: 3 :- below : "4.(1) An unauthorised development shall not be regularised under subsection (3) of section 3, if it is carried out on, -- (i) ...... (ii) water courses and water bodies like tank beds, river beds, natural drainage and such other places; and (iii) ...... In my view the reason given by the respondent no.1 -appellate authority that unauthorised development cannot be regularised as there is flowing nala adjacent to the building is not correct. Under the provisions of section 4, the development could not have been regularised only if the same is carried out on water courses or water bodies etc. 6. The petitioner’s appeal also came to be rejected on the ground that it was obligatory on the part of the petitioner to file authorised measurement plan for showing location of the drainage line and as the same had not been submitted, the development could not be regularised. The petitioner prior to passing of order -: 4 :- was not given any opportunity to file authorised measurement plan. Had the petitioner given this opportunity, he surely would have filed authorised measurement plan. In my view the respondent no.1 ought to have given an opportunity to the petitioner to submit authorised measurement plan before deciding question as to regularisation of unauthorised development. The order of respondent no.2 does not make any reference in this regard. Since this opportunity was not given, the matter deserves to be remanded back to the respondent no.2 for a decision afresh. Hence, I pass the following order : 7. The impugned orders passed by the respondent no.1 as well as the order passed by the respondent no.2, rejecting the petitioners proposal for regularization of unauthorised development are hereby quashed and set aside. 8. The matter is remanded back to the respondent no.2 for decision afresh. The respondent no.2 shall decide the petitioner’s application after giving an opportunity of hearing to the petitioner and respondent no.2 in the light of the aforesaid observations. The respondent no.2 shall decide the petitioner’s application expeditiously and in any case within the period of three months from the date of the receipt of the writ of this -: 5 :- order. ( R.V. MORE, J.) .....