Bombay High Court
Shirdi Nagar Panchayat vs Gordia Budget Hotel on 4 September, 2008
Author: D.G. Karnik
Bench: D.G. Karnik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 475 OF 2007
Shirdi Nagar Panchayat,
Shirdi, Tq. Rahata,
Dist. Ahmednagar,
through it's Chief Officer,
Shri Shantaram Rambhau Gosavi,
Age : 36 years, Occu.: Service,
R/o : Shirdi, Tq. Rahata,
Dist. Ahmednagar .. Appellant
VERSUS
1. Gordia Budget Hotel,
through its Director,
Shri Suresh Mohanlal Gordia,
Age : 69 years, Occu.: Business,
R/o Shirdi, Tq. Rahata,
Dist. Ahmednagar
2. The Collector, Ahmednagar,
Dist. Ahmednagar
3. The Assistant Director,
Town Planning, Tilak Nagar,
Ahmednagar,
Dist. Ahmednagar
4. Ketan S/o Suresh Gordia,
Age : 42 years, Occu.: Business,
R/o : Shirdi, Tq. Rahata,
Dist. Ahmednagar .. Respondents
Mr. V.D. Hon with Mr. Vinay B. Anjanwatikar for the
Appellant
Mr. R.H. Kapadia, Sr. Counsel with Mr. P.M. Shah,
Sr. Counsel and Mr. A.L. Pandya i/b. Mr. S.P. Shah,
::: Downloaded on - 09/06/2013 13:49:23 :::
for the Respondent no.1-Caveator
Mr. K.S. Patil, AGP for respondent nos. 2 and 3
None present for Respondent no.4 though served
CORAM : D.G. KARNIK, J.
DATE : 04.09.2008
ORAL JUDGMENT:-
1. Heard counsel for the parties. This appeal is directed 19.7.2007 against the judgment and passed by the District Judge-I, order Kopargaon dated dismissing Regular Civil Appeal no. 63 of 2003 filed by the appellant Municipal Council.
2. The facts leading to the appeal are almost undisputed and lie within narrow campass. Local administration of the shrine town of Shirdi was previously in the hands of Shirdi Village Panchayat constituted under the Bombay Village Panchayats Act, 1958. (for short "the Village Panchayat Act"). On 25th/28th August, 1988, on an application of the respondent, the Shirdi Village Panchayat granted permission to respondent no.1 (hereinafter referred to as the respondent) to construct the ground+7 storied building on it's property. Soon thereafter ::: Downloaded on - 09/06/2013 13:49:23 ::: (3) the construction was commenced and till January, 1990, R.C.C. framework of the ground+2 upper floors was completed. On 10th January, 1990, the Government of Maharashtra, by virtue of the powers vested in it under the provisions of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 (for short the Municipalities Act) issued a notification declaring that with effect from 10th January, 1990 the area within the limits of the revenue village and gaothan of village Shirdi shall be a municipal area.
ig Shirdi Municipal Council, which is the appellant herein, was thus established on 10th January, 1990. On 29th March, 1990, the Government of Maharashtra issued another declaration under section 23(1) of the Maharashtra Regional and Town Planning Act, 1966 (for short the Town Planning Act), of it's intention to prepare a development plan for the Shirdi Municipal Council area. The draft development plan was accordingly prepared and sanctioned by the Government of Maharashtra under section 31 of the Town Planning Act with effect from 25th February, 1993. By that time, the construction of the respondent had not progressed beyond the ground+2 upper floors. On 17th July, 1993 the appellant municipal council issued a stop work notice to the respondent informing him that the building ::: Downloaded on - 09/06/2013 13:49:24 ::: (4) permission dated 25th August, 1988 granted by the erstwhile Shirdi Village Panchayat had lapsed and advised it to apply afresh for building permission in accordance with law. On 25th November, 1993, the respondent filed a suit, bearing Regular Civil Suit no. 49 of 1993 in the Court of Civil Judge, Junior Division at Kopargaon for a declaration that the building permission granted to it by the erstwhile Shirdi village panchayat on 25th August, 1988 was legal and valid and was in full force and effect and for for the a further declaration that it was not respondent to apply afresh or necessary renew the building permission. It further prayed for a declaration that the notice dated 17th July, 1993 issued by the appellant to stop work and to apply afresh for the building permission was illegal and void. The respondent further prayed for an injunction restraining the appellant from preventing it from carrying out the building construction beyond ground + two upper floors in pursuance of the building permission granted by the erstwhile Shirdi Village Panchayat on 25th August,1988. On 1.7.1996, during the pendency of the suit, the respondent applied for a completion certificate and permission to use and occupy the ground + two upper floors of the building the construction of which was completed ::: Downloaded on - 09/06/2013 13:49:24 ::: (5) by then. On 29th July, 1996, the appellant granted completion certificate and permission to use ground and two upper floors of the building with a caveat that the respondent should not carry out any further building construction. During the pendency of the suit some further construction appears to have been made by the respondent but the same is not the subject matter of the suit or present appeal.
3. After hearing the parties and considering the parties, oral and ig documentary evidence adduced the trial Court by it's judgment and by the order dated 4th September, 1993, decreed the suit of the respondent. The trial Court held that the plan sanctioned by the Shirdi Village Panchayat on 25th August,1988 was legal and valid. It further held that there was no need for the respondent to apply for fresh building permission after constitution of the Municipal Council and the respondent was entitled to carry out the building construction in accordance with the plan sanctioned by the Shirdi Village Panchayat. In view of this it granted the declaration that the building plan was valid and notice dated 17th July, 1993 issued by the appellant was invalid and illegal. It also granted an injunction restraining the appellant Municipal ::: Downloaded on - 09/06/2013 13:49:24 ::: (6) Council from preventing the respondent from carrying out building construction in accordance with the building plan sanctioned by the Shirdi Village Panchayat on 25th August,1988.
4. Aggrieved by the decision of the trial Court, the appellant filed an appeal bearing Regular Civil Appeal no. 63 of 2003, in the District Court at Kopargaon. The lower appellate Court held that the building permission granted by the Shirdi Village Panchayat, building to ig the respondent for on 25th August, 1988 continued to be construction legal of and valid and there was no need to obtain fresh building permission from the appellant after it was constituted and that the respondent was entitled to carry on the building construction without applying for fresh permission. Consequently lower appellate Court held that the notice issued by the appellant on 17th July, 1993 asking the respondent to apply afresh for building permission was illegal and invalid and therefore the respondent was entitled to an injunction as prayed. Accordingly the lower appellate Court dismissed the appeal of the appellant vide its judgment and order dated 29th July, 1997.
That decision is impugned in this second appeal.
::: Downloaded on - 09/06/2013 13:49:24 ::: (7)5. By order dated 10th October, 2007 this Court (Coram : V.R. Kingaonkar, J.) admitted the second appeal by framing the following substantial question of law.
"(1) Whether in the facts and circumstances of the present case, the first appellate Court committed patent error while interpreting provisions of Section 340(ix) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and that the construction permission once granted by the Gram panchayat in favour of the plaintiff could be discontinued/rejected by the Municipal Council or the Town Planning Authority and, therefore, the construction of the plaintiff is unauthorised to the extent of the floors over and above G+2 ? "
6. After hearing learned counsel for the parties, in addition to the substantial question of law mentioned above the following additional substantial question of law arises for my consideration.
"(1) Whether the respondent who had not obtained a building permission/development permission under the Town Planning Act, was entitled to carry on the construction/development without obtaining such permission merely on the basis of a building ::: Downloaded on - 09/06/2013 13:49:24 ::: (8) permission granted by the village panchayat after the preparation and/or sanction of the development plan under the Town Planning Act ?"
Re : Point No.1
7. Sub section (1) of section 52 of the Village Panchayat Act says that no person shall erect or re-erect or commence to erect or re-erect within the previous limits of the village, any building without permission of the Panchayat. Sub section the (2) of section 52 provides that a permission shall be presumed to have been granted if the panchayat fails to communicate it's permission or refusal within two months from the date of receipt of the application for permission. Sub section (3) of section 52 says that no person who becomes entitled under sub section (1) or sub section (2) to proceed with any intended work of erection or re-erection shall commence such work after the expiry of one year from the date on which he becomes entitled so to proceed therewith, unless he shall have again become entitled by a fresh compliance with the provisions of earlier sub sections. Under section 52 of the Village Panchayat Act, a person is not entitled to carry out any ::: Downloaded on - 09/06/2013 13:49:24 ::: (9) building construction without obtaining a prior permission. He is further required to commence construction within one year of the grant of permission. If the construction is not commenced within one year of obtaining of the permission he cannot commence it thereafter without obtaining fresh permission. However section 52 does not provide that the construction which has been commenced within one year of the permission must be completed within one year. The construction which has been commenced within permission one year after obtaining of can be continued and completed even after the building the expiry of one year. No time limit has been fixed under section 52 of the Village Panchayat Act for completing the construction which has been commenced within one year of the obtaining of the building permission. I am supported in my view by a decision of a Division Bench of this Court in M/s Rishab Resorts Pvt. Ltd. Vs. Municipal Corporation Jalgaon (Writ Petition no. 2054 of 2006 decided on 28th April, 2006, Coram : Dabholkar and Gaikwad, JJ). In that case while interpreting section 48 of the Town Planning Act (which contains provision similar to section 52 of Village Panchayat Act) the Division Bench held that if the building construction has been commenced within one year of the building ::: Downloaded on - 09/06/2013 13:49:24 ::: (10) permission, it is not necessary that the construction must be completed within one year.
8. A question however arises as to what happens to a building permission which has been granted by the village panchayat under section 52 of the Village Panchayat Act, after the village area governed by a Village Panchayat is converted into a municipal area under the Municipalities Act. Village panchayats are usually established for local self governance respect of of ig smaller areas urban areas, usually municipal like villages.
councils In are established and in respect of bigger urban areas municipal corporations are established for local self governance of those areas. As a village grows, and as is common knowledge that the shrine town of Shirdi has grown exponentially in last few years, the village area is converted into municipal areas. In pursuance of the power conferred upon it under the Municipalities Act, the Government of Maharashtra established a municipal council, for the revenue village Shirdi by a notification dated 10th January, 1990. Ordinarily, when a municipal council is established, an owner of a property would not be entitled to carry out any building construction without a valid building permission obtained from the ::: Downloaded on - 09/06/2013 13:49:24 ::: (11) Municipal Council. A building permission granted by the erstwhile village panchayat which is converted into a municipal area new building permission would not clothe him with a power to carry out building construction without permission of the Municipal Council obtained under Municipalities Act unless the previous building permission granted by an erstwhile village panchayat is saved under the provisions of any Act or a Rule having the force of law. This is because under section 189 of the Municipalities Act, no without building shall be constructed in a municipal area obtaining prior permission of the municipal council. In order to make provision for certain matters when a local area declared to be a municipal area or limits of any municipal area are altered a power has been conferred on the State Government under section 340 of the Municipalities Act to make suitable provisions. Sub section (2) of section 340 of the Municipalities Act provides that when a new local area is declared to be a smaller urban area (municipal area), the State Government may, notwithstanding anything contained in the Municipalities Act or any other law for the time being in force, by an order published in the official gazette, provide for all or any of the matters specified therein. Clause (ix) of section 340 (2) ::: Downloaded on - 09/06/2013 13:49:24 ::: (12) empowers the Government to make provision for the continuance within the area of existing local authority of all, or any appointments, notifications, notices, taxes, orders, schemes, licenses, permissions, rules, bye-laws, regulations, or forms made, issued, imposed or granted by, or in respect of, such existing local authority and in force within its area immediately before the specified day, until superseded or modified under the Municipalities Act.
Sub section (2) of section 340 confers power on the State (including Government a ig to building declare that any permission) granted permission by the existing local authority (the village panchayat) shall remain in force in the municipal area until superseded or modified under the Municipalities Act.
In pursuance of the power conferred by sub section (2) of section 340 of the Municipalities Act, the State of Maharashtra issued a notification, dated 10th January, 1990 (see Maharashtra Government gazette dated January 23, 1990 part 1-A) and directed that the appointments, notifications, notices, taxes, orders, schemes, licenses, permissions, rules, bye-laws, regulations or forms made, issued, imposed or granted by the village panchayat of Shirdi and in force within the area of the said village panchayat immediately before the specified day, (10th January, ::: Downloaded on - 09/06/2013 13:49:24 ::: (13) 1990) shall continue to be in force within the area of Shirdi Municipality until modified under the Municipalities Act or any other relevant law. The effect of this notification is that the building permission which was granted by the Shirdi village panchayat on 25th August, 1988, continued to remain in force within the municipal area of the appellant Municipality. There is no dispute between the parties that in pursuance of the building permission granted by the Shirdi municipality on 25th August, 1988 one the building construction was commenced year and the building permission granted by within the Shirdi Village Panchayat was valid and in force on 10th January, 1990, when the appellant Municipal Council was formed. In view of the order passed by the State Government under sub section (2) of section 340 of the Municipalities Act, the building permission dated 25th August, 1988 granted by Shirdi Village Panchayat continued to remain in force within the area of Shirdi municipality. In my view, therefore the respondent was entitled to carry on the building construction in accordance with the building plan dated 25th August, 1988, even after 10th January, 1990 when municipal council came into being.
::: Downloaded on - 09/06/2013 13:49:24 ::: (14)Re : Point no.2
9. Respondent could have continued to carry on the construction even after 10th January, 1990 in accordance with the building permission granted, by the Shirdi village panchayat on 25.8.1988, till 29.3.1990, when the Government published it's intention under section 43 of the Town Planning Act to prepare a development plan for the Shirdi municipal area. In order to consider the effect of publication prepare by ig the Government of its a development plan it is necessary to intention refer to to some of the provisions of the Town Planning Act.
Section 43 of the Town Planning Act provides that after the declaration of the intention of the Government to prepare a development plan for any area is published, in the official gazette no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the planning authority. Section 44 of the Town Planning Act says that any person, intending to carry on any development on any land shall make an application in writing to the planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. Sub-section (1) of Section 45 of the ::: Downloaded on - 09/06/2013 13:49:24 ::: (15) Town Planning Act says that on receipt of application under section 44 the planning authority may, subject to the provisions of the Town Planning Act, by an order in writing grant the permission unconditionally or grant the permission subject to such general or special conditions as it may impose with the previous approval of the State Government or refuse the permission. Sub section (3) of section 45 requires the planning authority to give grounds for imposing any condition or refusal when the permission is granted section subject (4) ig to conditions or is of section 45 requires the order to refused. Sub be communicated to the applicant. Sub section (5) of section 45 says that a permission shall be deemed to be granted when the planning authority, does not communicate the grant or refusal of the permission to the applicant within 60 days of the receipt of the application. Section 46 of the Town Planning Act requires the planning authority in considering the application for permission to have due regard to the provisions of the draft or final development plan or proposal published or submitted or sanctioned under Act. Section 47 of the Town Planning Act provides for an appeal against the order granting permission on conditions or refusing permission under section 45, to the State Government to be filed within 45 ::: Downloaded on - 09/06/2013 13:49:24 ::: (16) days of the date of communication of the order.
Section 48 of the Town Planning Act says that permission for development granted or deemed to be granted under section 45, or under section 47 shall remain in force for a period of one year from the date of receipt of such grant and thereafter it shall lapse, with a proviso that planning authority may on an application extend such period year to year but not exceeding three years in all. Second proviso to section 48 provides that such lapse of permission shall not bar any subsequent application for permission under the Act.
fresh
10. As mentioned earlier on 29th March, 1993 the Government of Maharashtra published it's intention under section 43 of the Town Planning Act to prepare a development plan for Shirdi Municipal Council. Section 340(2) of the Municipalities Act which confers a power on the State Government to issue directions, including a direction that building permission granted by local authority before the date of establishment of the municipal council shall continue to remain valid until superseded or modified under the Municipalities Act, does not confer power on the State Government to declare that the permission granted by the local authority, (village ::: Downloaded on - 09/06/2013 13:49:24 ::: (17) panchayat) shall also be valid and continue to remain in force after publication by the Government of its intention to prepare a draft development plan under the Town Planning Act. If the Town Planning Act requires permission of the planning authority to be obtained wherever Town Planning scheme is made applicable or wherever Government declares its intention to prepare a development plan such permission would be required to be obtained for continuing any construction even if permission for construction has been granted under any other law.
This position is further made clear by section 156 of the Town Planning Act which reads thus:-
"(156). Notwithstanding anything contained in any law for the time being in force (a) (deleted by Maharashtra Act No. 10 of 1977)
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
. Section 156 opens with a non-obstante ::: Downloaded on - 09/06/2013 13:49:24 ::: (18) clause. It is therefore not subject to the provisions of the Village Panchayat Act and the Municipalities Act. In case of conflict, the provisions of section 152 of the Town Planning Act would take precedence over the provisions of the Village Panchayat Act as well as the Municipalities Act and any direction issued by the State Government under the Municipalities Act. Section 156 clearly and unequivocally provides that when permission for development has not been obtained under the Town be Planning Act, such development shall not be deemed to lawfully undertaken or carried out by reason only of the fact that the permission, approval or sanction required under any other law for such development has been obtained. In other words, even if the permission for development had been obtained under the Village Panchayat Act and was continued after establishment of the municipal council by reason of the direction of the State Government issued under section 340(2) of the Municipalities Act the development (building construction) cannot be continued after the Government declares its intention to prepare a development plan for any area, unless permission for the development is obtained under Town Planning Act. The permission for development (building construction) under the Town Planning Act ::: Downloaded on - 09/06/2013 13:49:24 ::: (19) is required to be separately obtained and any building construction carried without such permission would be illegal.
11. I am fortified in my view by the decision of the Supreme Court rendered in Hotel Sea Gull v.
State of West Bengal and others (2002) 4 SCC 1. In that case, on 19.1.1990 the gram panchayat sanctioned a building plan of Hotel Sea Gull for construction of five storied building. On 28.11.1990 the Government of for the West Bengal constituted Digha Planning planned development of Digha township.
Authority In the first week of July, 1990 the appellant started construction of second floor at the existing hotel building on the basis of the building permission granted by the gram panchayat. On 29th July, 1972, the second respondent issued a notice to the appellant requiring it to dis-continue the unauthorised construction. The question before the Supreme Court was whether the construction could be carried out in pursuance of the permission granted by the village panchayat without obtaining fresh permission of the planning authority under the West Bengal Town and Country (Planning and Development) Act, 1979, (for short the West Bengal Act)?
Referring to Section 137 of the West Bengal Act the ::: Downloaded on - 09/06/2013 13:49:24 ::: (20) Supreme Court held that the construction could not be carried out without obtaining permission of the planning authority. Section 137 of West Bengal Act reads:
"137. Overriding effect-
(1) The provisions of this Act and the rules and regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.
(2) Notwithstanding anything contained in any other law-
(a) when permission for development in respect of any land has been obtained under this Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under any other law for such development has not been obtained, this shall not, however, be construed as exemption to application for permission and of payments of such fees and charges as required by such other law.
(b) When permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
. Sub-section 2(b) of Section 137 of the West Bengal Act is pari materia with section 156(b) of the Town Planning Act applicable in Maharashtra. Supreme Court has held that section 137 has the overriding effect and the construction cannot be carried out in ::: Downloaded on - 09/06/2013 13:49:24 ::: (21) pursuance of the plan sanctioned by the village panchayat, after the notification was issued by the West Bengal Act without obtaining the building permission under the West Bengal Act in view of section 137(2) (b) thereof. The ratio of the decision of the Supreme Court applies in all fores to the present case.
12. In my view the building construction which could lawfully be carried out by the respondent under 10th the building permission dated 25th August, 1988, till January, 1990 when the village panchayat was in existence, and even thereafter on establishment of the municipal council, in view of the order passed by the State Government under section 340(2) of the Municipalities Act, could not be so carried out after 29.3.1990 when notification under section 43 of the Town Planning Act was published by the Government of its intention to prepare the development plan for Shirdi. In view of the provisions of section 43 to 45 and section 156(b) of the Town Planning Act, after 29th March, 1990 the respondent could carry out construction only in accordance with the draft development plan (which has since been finalised and made applicable with effect from 25.2.1993) and that too only after obtaining a building permission under ::: Downloaded on - 09/06/2013 13:49:24 ::: (22) section 44 and 45 of the Town Planning Act. No construction could be carried out without such permission in view of the express bar contained in section 156 (b) of the Town Planning Act.
13. For the reasons the impugned judgment and order is required to be set aside.
14. It is however clarified that the respondent would be at liberty to apply to the appellant as the planning accordance authority with law.
for building permission
If such an application is made
in
by the respondent the same shall be considered by the planning authority in accordance with law. The appellant shall not demolish the construction beyond ground+2, which has been constructed by the respondent, for a period of eight weeks from this date and if any application is made by the respondent for building permission within the said period of eight weeks till the disposal of that application and for a period of four weeks after the communication of the decision on the application.
15. The appeal is allowed, the impugned decision is set aside and the suit of the appellant is dismissed with no order as to costs.
::: Downloaded on - 09/06/2013 13:49:24 ::: (23)(D.G. KARNIK), JUDGE arp/498/475 ::: Downloaded on - 09/06/2013 13:49:24 :::