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2014 DIGILAW 988 (BOM)

Sanjay Baburao Ingale v. Bhagwat Lahanu Satav

2014-04-16

RAVINDRA V.GHUGE

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JUDGMENT R.V. Ghuge, J. 1. This matter was heard on 18-12-2001. While admitting the petition, this Court had granted interim relief to the petitioners in terms of prayer clause (B). The prayer clause (B) in the memo of the petition reads as under:-- "Prayer clause (B)-Pending hearing and final disposal of this writ petition, the Hon'ble High Court may be pleased to grant stay to the effect and operation of the judgment and order dated 20-2-2001 passed by Director, Town Planning, Maharashtra State, Pune (Annexure-B), whereby the order dtd. 25-9-1998 passed by the respondent No. 2 is set aside." This matter was heard on 9-4-2014 and 16-4-2014. Respondent No. 1 though served has been absent consistently. He has not caused his appearance either through an Advocate or in person. 2. The petitioners submit that CTS No. 232/1A admeasuring 38.5 Sq. meters was originally owned by one Shri Wani. The western side area of the said plot was purchased by the father of respondent No. 1 on 27-10-1967. One Shri Namdev Devram Patil purchased an area of 23 Sq. Waar on 20-2-1979 from Shri Wani. Petitioner No. 3 purchased an area of 23 Sq. Waar (19.5 Sq. meters) from Shri Namdev Devram Patil. Petitioner Nos. 1 and 2 have purchased the land admeasuring 19.5 Sq. meters from petitioner No. 3. It is therefore, submitted that petitioner No. 3 is the predecessor in title of petitioner Nos. 1 and 2. Thus, petitioners are today in possession of a total area admeasuring 29.5 Sq. meters. 3. Respondent No. 1 herein, who has chosen to remain absent, though served, had filed R.C.S. No. 50/1981 before the learned Civil Judge (Junior Division), Raver, praying for perpetual injunction and mandatory injunction for removal of encroachment in respect of the area admeasuring 29.5 Sq. Waar. The learned Trial Court was pleased to dismiss the said suit. A Civil Appeal No. 193/1993 preferred by respondent No. 1 was dismissed and the judgment and decree passed in R.C.S. No. 50/1981 was confirmed on 24-2-1998. 4. The petitioners submits that they had moved an application dated 17-9-1998 to respondent No. 2-Municipal Council, Raver, for seeking permission for construction. It is submitted that the construction was half way complete. Respondent No. 2 allowed the application and granted permission to construct one room on the ground floor by order dated 25-9-1998. 5. 4. The petitioners submits that they had moved an application dated 17-9-1998 to respondent No. 2-Municipal Council, Raver, for seeking permission for construction. It is submitted that the construction was half way complete. Respondent No. 2 allowed the application and granted permission to construct one room on the ground floor by order dated 25-9-1998. 5. Respondent No. 1 preferred to challenge the said permission by filing an Appeal before the State Government. It is submitted that respondent No. 1 had no right to challenge the said order. According to the petitioner, section 47 of the Maharashtra Regional and Town Planning Act, 1966, (M.R.T.P. Act, 1966) provides a remedy of Appeal only to an aggrieved person and that too for the original applicants. In the submissions of the petitioners, an unconnected person could not be said to be an aggrieved person. 6. The Appeal filed by respondent No. 1 was transferred to the Director, Town Planning, M.S., at Pune. Permission granted by respondent No. 2, allowing the petitioners to construct was set aside by the judgment and order dated 20-2-2001. Said judgment is impugned in this petition. 7. This Court had granted interim relief to the petitioners. It is, therefore, contended that during the pendency of this petition, the petitioners have carried out the entire construction in accordance with the permission granted by respondent No. 2 and the construction is, therefore, complete and standing. 8. It is further submitted that respondent No. 1 had preferred a Second Appeal, challenging the judgment of the trial Court and the Appellate Court in the proceedings initiated by him. The said Second Appeal was also dismissed by this Court. The petitioners, therefore, contend that by these developments and the orders of various Courts, respondent No. 1 is to be considered as an outsider and unconnected with the cause of action involving the petitioners. 9. The learned Advocate for the petitioners has drawn my attention to section 44 of the M.R.T.P. Act, 1966. It is contended that the person who intends to carry out construction, is required to make an application under sub-section 1 of section 44 of the M.R.T.P. Act, 1966. The said application could be allowed and the permission could be granted simplicitor or with conditions. The said application can also be rejected. 10. It is contended that the person who intends to carry out construction, is required to make an application under sub-section 1 of section 44 of the M.R.T.P. Act, 1966. The said application could be allowed and the permission could be granted simplicitor or with conditions. The said application can also be rejected. 10. Submission is that in the event the application is rejected or granted with conditions, the applicant can prefer an Appeal, since the applicant can be aggrieved by the said orders. Permission granted by respondent No. 2 was challenged by respondent No. 1 having no concern with the matter. 11. It is, therefore, submitted that a person who had no locus to challenge the building permission by respondent No. 2 had preferred the said challenge and by the impugned judgment, the challenge of respondent No. 1 has been upheld. It is, therefore, prayed that the learned Authority below, while dealing with the application of respondent No. 1, has entertained the grievance of a person who has no nexus with the cause of action involving the petitioners. It is, therefore, prayed that the petition be allowed. 12. Respondent No. 2 has filed its affidavit-in-reply. Learned Advocate for respondent No. 2 has contended that the permission was granted in accordance with the scheme of law. Respondent No. 2 further submits that the said permission cannot be faulted for the reasons that the building permission so granted does not violate the provisions applicable and cannot be said to be illegal or unsustainable. 13. With the assistance of the learned Advocates for the rival parties, I have gone through the petition paper book and the impugned order dated 20-2-2001. The conclusions of the said authority are primarily based on the impression that the petitioners were attempting to construct on an area exceeding the area that belonged to them and that the said excess construction was on the land belonging to respondent No. 1 herein. 14. Shri Shah, contends that the very foundation of the impugned order is shaken in view of the fact that the Regular Civil Suit filed by respondent No. 1 was rejected. His Appeal was dismissed and the Second Appeal before this Court was dismissed. According to him, therefore, the factum of ownership of that portion of the land on which the petitioners were alleged to have carried out the construction, itself is not proved. His Appeal was dismissed and the Second Appeal before this Court was dismissed. According to him, therefore, the factum of ownership of that portion of the land on which the petitioners were alleged to have carried out the construction, itself is not proved. The authority below failed to note these orders passed against respondent No. 1 by which his claim of ownership to the said portion of the land was rejected by three Courts. 15. In view of the above, I find that the impugned order dated 20-2-2001 suffers from non-application of mind and perversity. It cannot be sustained. Same is accordingly quashed and set aside. The Writ Petition is, therefore, allowed. Rule is made absolute. No costs. Petition allowed.