Whether the applicant can claim the benefit of deemed permission for construction if he has not made an application for construction in the prescribed form?

From bare perusal of the provisions contained

in section 44 and 45 of MRTP Act it is clear that

for any person, intending to carry out any

development on any land, it is mandatory to make an

application in writing to the Planning Authority

for permission in the "prescribed form" and unless

the application made is in "the prescribed form",

as contemplated by section 44 of the said Act, in

our opinion, one cannot take benefit of the deeming

provision contained in subsection (5) of section 45

of the said Act and carry out any development,

claiming that there was no communication/ reply

from the Planning Authority within sixty days. In

other words, one can take benefit/ advantage of

deeming provision only if the application for

permission for development was made in the

"prescribed form" and if there was no communication

from the Planning Authority either granting or

refusing permission to the applicant within 60 days

from the date of receipt of his application. When

the statute mandates that one has to apply for

building/ development permission in the prescribed

form, the mandate of the statute has to be duly

observed. {Para 7}

10. From bare perusal of the prescribed form it is

clear that it has to be submitted on Rs.0.20 Stamp

and in the form of notice making the intent clear

to carry out development. It further provides that

the application should be accompanied by nine

documents, mentioned in the prescribed form. Thus,

if the application is in the prescribed form and

submitted along with all the relevant/ necessary

documents, then alone, as observed earlier, one can

claim benefit of the deeming provision. If the

prescribed form is compared with the application

dated 9th August, 2010, submitted by the

Petitioner, it is clear that the application was

not in the prescribed form. Therefor, it was not

open to the petitioner to proceed with the

construction of mobile tower treating the inaction/

silence of the Corporation, insofar as their

application dated 9th August, 2010 is concerned, as

deemed permission. In other words, the petitioners

were not obliged to construct the mobile tower

merely because there was no communication from the

Corporation in response to their application dated

9th August, 2010 within 60 days, treating the same

as deemed permission under subsection (5) of

section 45 of the MRTP Act. In the circumstances,

the challenge to the impugned notice on this ground

fails and rejected as such.

11. The next contention urged by Shri Dixit that

the notice under sections 260 and 478 of the BPMC

Act and under Sections 52 and 54 of the MRTP Act,

is illegal, also deserves to be rejected outright.

Shri Dixit urged that the provisions of Sections

260 and 478 would not apply to the facts of the

present case, since, the petitioner had made an

application for seeking permission for development

under Section 44 of the MRTP Act. We have already

taken a view that application dated 9th August,

2010 for development/ for erecting the mobile

tower, in our opinion, was not an application as

contemplated by Section 44 of the MRTP Act and,

therefore, it was not open to the petitioner to

treat the silence or inaction on the part of the

Corporation for sixty days and proceeded with

construction of the mobile tower.

12. A plain reading of Section 260 of the BPMC Act

shows that the procedure under this provision

presupposes a situation, whereby an application in

the prescribed form, has been made and it has

either been rejected or where the permission

granted has been exceeded or a situation, whereby

deemed permission is pleaded, but is not justified.

The case of the petitioner does not fall in any of

these categories. It is so observed by this Court

in the case of Nanasaheb Nagoji Bhosale (Supra).

Section 478 contemplates an entirely different set

of cases whereby the records of the Corporation

indicate that no application whatsoever was ever

made, and consequently, that it was neither

rejected nor granted nor was there any deemed

permission. In the present case, the application

dated 9th August, 2010 was no application as

contemplated by section 44 of the MRTP Act.

Therefore, there was no occasion for the

Corporation to either reject or to grant and no

reason for the petitioner to treat the silence on

the part of the Corporation as deemed permission.

Section 52 of the MRTP Act provides for penalty for

unauthorised development or for use otherwise than

in conformity with the development plan and section

53 confers power on the planning authority to

remove unauthorized development. A plain reading

of all these provisions, in the light of our

finding that application dated 9th August, 2010 was

not an application for development as contemplated

by section 44 of the MRTP Act, would show that the

Corporation is justified in issuing the impugned

notice against the petitioner.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH ATAURANGABAD

APPELLATE SIDE, CIVIL JURISDICTION

WRIT PETITION NO.: 48 OF 2011

GTL Infrastructure Ltd. V/s The Dhule Municipal Corporation and others

CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ.

DATED:9th JUNE, 2011.

Citation: 2011(6) BOM CR 152: 2011(6) MHLJ 215

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What is difference between S 260 of BPMC Act and S 478 of BPMC Act?

 The short question that arises is as to whether the powers under S. 260 and S. 478 of the B.P.M.C. Act are in conflict with each other. I do not find any such difficulty arising. The procedure prescribed under S. 260 of the B.P.M.C. Act presupposes a situation whereby an application has been made and the application has either been rejected or where the permission granted has been exceeded or, lastly, a situation whereby deemed permission is pleaded, but is not justified. The basic distinction between these two sections is that a show cause notice will be required for purposes of ascertaining whether the aforesaid circumstance is warranted or not because the record of the Corporation will indicate that some application was, in fact, made and that there was, therefore, some basis for the situation that has come up. {Para 6}

7. Section 478 of the B.P.M.C. Act contemplates an entirely different set of cases whereby the records of the Corporation indicate that no application whatsoever was ever made and, consequently, that it was neither rejected nor granted nor was there any deemed permission. This is the basic distinction between the two sets of cases. In the latter category of cases, S. 478 of the B.P.M.C. Act provides that the structure shall be deemed to be unauthorised and under these circumstances there is no justification for its continuing in existence. The Municipal Commissioner, therefore, in all cases where he finds that there is no obligation would have been justified in invoking the provisions of Section 478 of the B.P.M.C. Act and ordering the demolition. There is no question in such a situation of issuing show cause notice nor does the law require it.

Bombay High Court

Pune Municipal Corporation, Pune vs Nanasaheb Nagoji Bhosale on 11 March, 1994

Equivalent citations: AIR 1995 Bom 164, 1995 (2) BomCR 162, (1994) 96 BOMLR 614, 1995 (1) MhLj 427

Bench: M Saldanha

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Whether Municipal Corporation can demolish compound wall on existing on the property prior to its inclusion within the PMC limits?

 (a) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 478 — Appellant's property was outside the limits of Pune Municipal Corporation — Appellant constructed a compound wall on the said property in the year 1969 — Said property included within the PMC limits in the year 1997 — On 3-4-2001, a notice under section 478 of the Bombay Provincial Municipal Corporation Act was issued to demolish the said compound wall — Construction of the compound wall was admittedly done prior to the inclusion of the area within the PMC limits and hence, ex-facie section 478 has no application — Held, the action of the Corporation of issuance of notice under section 478 was without jurisdiction.

(Para 10)

(b) Bombay Provincial Municipal Corporation Act (59 of 1949), SS. 253, 254 and 260 — Section 260 cannot be read in isolation and must be read with sections 253 and 254.

Where the construction of the compound wall by the appellant in the year 1969 and the reconstruction of the wall in the year 1992, after it was demolished by the Collector Pune, was prior to the inclusion of the appellant's land within the PMC limit in the year 1997, to none of these constructions either section 253 or section 254 will have any application. Section 260 cannot be read in isolation and will have to be read with sections 253 and 254. Section 253 provides that the notice should be given to Commissioner of intention to erect a new building whereas section 254 provides for notice to be given to the Commissioner of intention to make additions etc. To the existing building unless and until section 253 or section 254 applies, section 260 which provides for proceedings to be taken, for contravention thereof, can have no application.

(Paras 11 and 12)

(c) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 487 — Suit instituted against Pune Municipal Corporation challenging notice issued under section 478 for demolition of compound wall constructed by the appellant on his property prior to the inclusion of the said property within the PMC limits — Action of the Corporation in issuing of notice under section 478 was without jurisdiction and de hors the provision of the Act — Issuance of notice under section 487 prior to the institution of the suit was not necessary.

(Para 14)

In the High Court of Bombay

Bombay Provincial Municipal Corporation Act, Section 478 : Applicability

(Bombay)

(Before G.S. Godbole, J.)

Ninad Sahakari Gruharachana Sanstha Maryadit, Pune Vs Pune Municipal Corporation

S.A. (St.) No. 24695 of 2011 with Civil Appln. No. 1298 of 2011

Decided on October 19, 2011

2011 SCC OnLine Bom 1406 : (2012) 2 Mah LJ 665 : (2012) 1 AIR Bom R 527 : (2012) 3 Bom CR 669

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