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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Guidelines of Andhra Pradesh High Court (Full bench) for demolition of unauthorized construction by Municipal Corporation

 Having regard to the rampant, illegal and unauthorised constructions raised in the country as observed in State of Maharashtra's case MANU/SC/0335/1991 : [1991] 2 SCR 745 a (supra) before parting with this case, we would like to formulate the following guidelines to be followed by the respondent in respect of illegal constructions. The guidelines should not be treated as exhaustive but only illustrative and the discretion to be exercised by the Corporation in any given case should not be arbitrary or, capricious.

1) In cases where applications having been duly filed in accordance with law, after fulfilling all requirements, seeking permission to construct buildings and permission was also granted by the Corporation, the power of demolition should be exercised by the Corporation only if the deviations made, during the construction are not in public interest or cause public nuisance or hazardous or dangerous to public safety including the residents therein. If the deviations of violations are minor, minimal or trivial which do not affect public at large, the Corporation will not resort to demolition.

2) whatever is stated in guideline number (1) will also equally apply to the permissions deemed to have been granted under Section 437 of "The Act".

3) If no application has been filed seeking permission and the construction is made without any permission whatsoever, it is open to the Corporation to demolish and pull down or remove the said unauthorised structure in its discretion. Otherwise, having regard to the facts and circumstances of the case, it will be putting a premium on the unauthorised construction.

When the Corporation comes to the conclusion, keeping the above guidelines in view, that the construction in question is required to be demolished or pull down, it should follow the procedure indicated below:

(i) The demolition should not be resorted to during festival days declared by the State Government as public holidays excluding Sundays. If the festival day declared by the Government as a public holiday falls on a Sunday, on that Sunday also, the Corporation should not resort to demolition.

(ii) In any case, there should not be any demolition after sun set and before sun rise.

(iii) The Corporation should give notice of demolition as required by the statute fixing the date of demolition. Even on the said date, before actually resorting to the demolition, the Corporation should give reasonable time, depending upon the premises sought to be demolished, for the inmates to withdraw from the premises. If within the time given the inmates do not withdraw, the Corporation may proceed with actual demolition;

These guidelines are laid down in view of the fact that the Corporation is a public authority and its action must be tested on the touchstone of fairness and reasonableness. {Para 36}

 IN THE HIGH COURT OF ANDHRA PRADESH

Writ Petn. No. 10019 of 1993

Decided On: 02.09.1994

3 Aces, Hyderabad Vs.  Municipal Corporation of Hyderabad

Hon'ble Judges:

S.S.M. Quadri, P.L.N. Sarma and B.S. Raikote, JJ.

Author: P.L.N. Sarma, J.

Citation:  MANU/AP/0002/1995

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When a person is not entitled to get deemed permission for construction?

 Moreover, in order to get the benefit of deemed permission, apart from the ownership or the status of the lessee, the Petitioner was required to comply with some mandatory conditions. She has to apply for the permission in the prescribed format. Bye-Law No. 4.1 clearly provides that such application is required to be given in the Form given in Appendix A and it shall be accompanied by the plans and statement in triplicate drawn or prepared in accordance with the Bye-Law No. 5. The said Bye-Law, as reproduced above, also provides that such notice has to be accompanied by the documents mentioned therein, like, 7/12 extracts or the property register card, the copy of the sale/lease-deed and other documents, which may be acceptable to the authority. Such application or notice is also required to be accompanied with the challan showing the payment of requisite fees and also the site plan in triplicate. Unless all these documents are accompanied with the notice given, as per Bye-Law No. 4.1 of D.C.R., the law is well settled that, the Petitioner cannot be entitled to avail the benefit of deemed permission. The application given by the Petitioner to the Respondent No. 1 seeking permission is not at all accompanied with all these documents. No challan is produced to show that fees are paid along with application. In such situation, there is no question of Respondent-Municipal Corporation giving any reply to the said notice or the Petitioner claiming benefit of deemed permission on the basis of the said notice. Moreover, as observed by the trial Court, this application seeking permission was given on 5th February 2016, whereas impugned notice is issued by the Municipal Council on 6th April 2016. It does not appear that the Petitioner could have erected this structure within two days. It clearly indicates that the Petitioner has not even waited for sixty mandatory days, so that she can claim the benefit of deemed permission.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5396 of 2018

Decided On: 04.05.2018

 Sulochana Dattatraya Bavlekar  Vs. The Chief Officer, Mahabaleshwar Giristhan Nagar Parishad and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(5) MHlJ 175

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