Whether building plan deemed to have been sanctioned must also satisfy the conditions laid down in the building bye-laws?

 The statute provides as to how and in what manner an application for grant of sanction of building plan should be dealt with. Section 275(3) of the Act, however, raises a legal fiction specifying the period of sixty days within which an application for grant of sanction of building plan should be considered by the appropriate authorities of the Corporation. The legislature, therefore, considered the said period of sixty days to be reasonable one during which the application for grant of sanction for a building plan should be attended to and appropriate order thereupon should be passed. However, there cannot be any doubt whatsoever that when queries are raised or defects are pointed out in the building plan, the owner of the land must reply thereto and/or remove the defects pointed out.

19. A building plan deemed to have been sanctioned must also satisfy the conditions laid down in the building bye-laws.

Although a deeming provision has been provided in Sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant for necessary clarification and/or compliance with the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6192-6197 of 2008 

Decided On: 22.10.2008

 Rikhabsao Nathusao Jain  Vs. Corpn. of the City of Nagpur and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Author: S.B. Sinha, J.

Citation: 2009(2) MHLJ (SC) 601,MANU/SC/8177/2008

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Whether a person can claim that his construction is authorized as per deemed permission if his construction is on open space?

 Deemed permission to an application under section 44 of  MRTP Act can apply only to cases where permission is otherwise capable of sanctioned in law.

    The provision that the permission shall be deemed to have been granted within a period of 60 days from the date of receipt of the application if the Planning Authority does not communicate its decision whether to grant or refuse permission can apply only to cases where the permission is otherwise capable of being sanctioned in law. If an application cannot be sanctioned, it certainly cannot be said that it is capable of a deemed sanction. In the present case, it is clear that no permission for development could have been granted by the Planning Authority since the site in question was not buildable at all being reserved as an open space for extension of Maharajbagh.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Public Interest Litigation No. 34 of 2010 & Writ Petition No. 125 of 2011

Decided On: 21.10.2011

The Court on its own motion and Ors. Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde & M.N. Gilani, JJ.

Author: S.A. Bobde, J.

Citation : 2012 (1)MhLj 232

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Whether plaintiff can claim that he has deemed permission for construction if he intends to carry out construction in the flood line?

 However, so far as the present matter is concerned, it has to be held that the construction of theatre by Respondent No. 3 in CTS No. 417 is within the prohibited area. He had no authority to construct such theatre. He has faulted the provisions of the M.R.T.P.Act and the M.M.Act. There was no valid permission for construction of the theatre. No permission could have been granted for construction of the theatre by the Municipal Council, Rahuri. Furthermore, even taking into consideration the provisions of section 5(b) of the Cinema Regulation Act, no licence can be issued for having a cinema theatre in that building, because it is not safe place to have cinema theatre. In such circumstance, the licence has to be revoked. So also, the building has to be demolished.{Para 67}

68. The learned Counsel for Respondent No. 3 has argued that this floodline is only imaginary line. No proper survey was made before drawing the floodline. There were no floods since 1947 in the area, where the floodline is provided for; and in such circumstances, merely on technicalities, the reliefs sought in the writ petition should not be allowed. However, we do not agree with this argument. It is amply brought on record that the concerned authorities had taken the survey, especially by the Engineers of the Irrigation Department. The Government also considered the matter on every aspect; and though at one stage, the Government was thinking of removing the floodlines, after reconsideration of the entire matter, decided to retain the floodlines and then the Notification of 1981 was issued. It is a precautionary measure taken by the Government for the safety of the residents of Rahuri town. There were no floods in the past, that does not mean that the precautionary measures be thrown to winds. The construction is unauthorised construction and it has to be treated like that.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.K. BARDE AND D.S. ZOTING, JJ.

Vithal Ramchandra Devkhar & Anr. Vs. The State Of Maharashtra & Ors.

Writ Petition No. 187 of 1989

18th January, 2001

Citation: 2001(3) ALL MR 872

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Whether municipal Corporation must hear applicant before deciding application for grant of construction permission?

  Mr. Aney the learned counsel for the respondent no.7 countered this argument by saying that action under section 45 is to sanction and what is required by Planning Authority is to see that the development plan as put in with the application under section 44 conforms to the requirements of law, rules, instructions, byelaws etc, framed in that behalf by the Planning authority. That being a pure administrative action there is no question of principles of natural justice being attracted in the consideration of the application under section 45. We are unable to accept the submission of Mr. Tulzapurkar that section 45 postulates grant of hearing of the objectors. Firstly because the process of granting application under that section is purely a mechanical and administrative process. The authority has to process the application for development and on finding it to be in conformity with the requirements of law grant it, and if they are not in conformity, it will be rejected. There is therefore no room for granting any hearing to any person. The provisions of section 45 if read in whole, do not contemplate hearing even to the person applying under section 44 and the only remedy available to such person after the order is made is that, without hearing as contemplated by section 45, it will have to be held that both the applicant and the objectors if any, are entitled to hearing. The very fact that no such hearing as contemplated by provisions of section 45 is evident from the fact that the appeal is made available to persons aggrieved by grant of or refusal of permission under that section. In our opinion putting such prayer under section 45 is also hazard or to put in objections in various multi crore development plan the claim demand and delaying the execution of the development scheme. Such is not the intention of section 45 and therefore we reject the submission that it postulates the hearing. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.G. PALSHIKAR AND P.V. KAKADE, JJ.

The Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs. State Of Maharashtra & Ors.

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Whether civil suit is maintainable for quashing a deemed permission under S.45(5) of MRTP Act is maintainable?

 An appeal is therefore provided against the order granting permission or refusing permission under section 45. There is obviously no appeal against deemed permission under section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under section 45(5) of the MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of which acquiring finality as contemplated by section 149. Section 149 reads thus :{Para 11}

"149. Finality of orders.-

Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."

12. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceedings for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited.

13. In our opinion therefore, the contention of Mr. V. V. Tulzapurkar that a civil suit is barred by reason of the provisions of section 149 of MRTP Act is unacceptable.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.G. PALSHIKAR AND P.V. KAKADE, JJ.

The Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs. State Of Maharashtra & Ors.

Writ Petition No.2591 of 2001

26th July, 2002

Citation: 2002(4) ALL MR 429,2003(1) BOM CR 251

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How to prove that collector has granted deemed permission for non agricultural use of land?

Whosoever is desirous of getting conversion of agricultural land to use it for non-agricultural purpose, has to apply to the Collector for permission in accordance with the form prescribed. In terms of clause (a) of sub-section (2) of Section 44 of the Code, the Collector on receipt of such application has to give an acknowledgment within a period of seven days. In terms of sub-section (3), if the Collector fails to inform the applicant to his decision within ninety days from the date of acknowledgment of the application, the permission applied for is deemed to be have been granted subject to any condition prescribed in the rules made by the State Government in respect of such use.

7. We find that the production of acknowledgment granted in terms of clause (a) of sub-section (2) of Section 44 of the Code about receipt of application, is very crucial. The deeming fiction is conditional and it would not operate unless the acknowledgment evidencing the date of receipt of the application tendered, is produced or otherwise such date is proved. The burden is upon the person who wanted to claim benefit of it, to prove that the condition is satisfied. In the absence of such acknowledgment being produced on record to the satisfaction of the Court, it is not possible to record the finding that the application was not decided within a period of ninety days from the date of it's receipt. The petitioner has failed to discharge burden of establishing that the application was given on 01/03/2006. The condition is not satisfied and, therefore, it cannot be held that either the permission is deemed to have been granted or that the rejection of the application was not within a period of ninety days.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1422 of 2007

Decided On: 29.03.2019

 Rajendra  Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande and S.M. Modak, JJ.

Citation : 2019 (5)MhLJ 348

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