High Court
Legal Reasoning
submitted to the Appellate Authority it is pointed out that on apllicationout of 53 plot owners no signatures of the owners of plot No. 43 and 47are found. It is also argued that the predecessor of the petitioner hasalso not signed the said application. It is his submission that it is openfor the planning authority to cause review of the order of sanction oflayout since it is open for planning authority to revoke/ modifypermission to development and as such application was moved by thepetitioner. Since the same has been rejected by Corporation, it is openopen for the petitioner to challenge the said order so also the order ofsanction of layout by filing appeal under Section 47 of the MRTP Act. Hesubmits that since the Division Bench of this Court has granted leave tothe petitioner to file appeal, an appeal filed under Section 47 of the Actought to have been entertained and decided on merits by the authority. 4.Learned counsel for the Municipal Corporation opposed thesaid submission by contending that once admittedly the petitioner wasnot applicant for sanction of the layout under Section 44 of the MRTP Actthe petitioner has no right to prefer any appeal under Section 47 of theMRTP Act. To support his submission he placed reliance on the judgmentof the Co-ordinate Bench of this Court in case of Siddheshwar s/oPanchappa Hawa Vs. State of Maharashtra and Ors., 2020(3) All MR 535.5.There is no dispute about the fact that neither the petitionerwp1405.24.odt3 of 10 nor her predecessor was one of the applicants who have moved anapplication for sanction of the layout in Gut No. 14. It is further notdenied that the predecessor of the petitioner at the relevant time did notraise objection for sanction of the layout and but it was raised by otherfour plot owners. The said objection was duly rejected by the Corporationand a communication to that effect was issued on 13/05/2009. The saidorder reads thus:-^^fo"k;%& xV dzeksd 14 dkapuokMh] vkSjaxkckn ;sFkhy js[kkaduklekU;rk ns.ksckcr---lanHkZ %& vkiyk vk{ksi fnukad 05@02@25009-ojhy fo”k;klafdr js[kkadukl ekU;rk ns.;klkBh vki.klanfHkZ; vk{ksi nk[ky dsyk vkgs- R;k vuq”kaxkus vki.kkl dGfo.;kr ;srsdh] vki.k vk{ksikar mYys[k dsysY;k [kjsnh[krkps voyksdu dsysvlrk ;kp [kjsnh[krkpk Hkkx Eg.kqu tks udk’kk tksMyk vkgs R;krhyHkw[kaMfugk; vuqdzekus loZ 53 t.kkaph ekydh vlY;kpk R;kr mYys[kvkgs- R;keqGs vkj{k.kkus ck/khr {ks= oxGrk brj T;k Hkw[kaM/kkjdkauhjs[kkadu izLrko nk[ky dsyk vkgs R;kpk fopkj dj.;kr ;sr vlwuvkiyk gLr{ksi fudkyh dk<.;kr ;sr vkgs- br%ij vki.kkl ekydh gDdkps vuq”kaxkus vkiyk dkgh oknvlY;kl vki.k rks l{ke dk;kZy;@U;k;ky; ;kapsekQZr lksMokok-**.This order therefore is not passed on any application/objection of petitioner or her predecessor. 6.At this stage it would be relevant to take note of provisions ofSections 44 to 47 of the Act which reads thus:-“44. Application for permission for development.wp1405.24.odt4 of 10 1[(1)] Except as otherwise provided by rules made inthis behalf, any person not being Central or StateGovernment or local authority intending to carry out anydevelopment on any land shall make an application inwriting to the Planning Authority for permission in suchform and containing such particulars and accompaniedby such documents, as may be prescribed :[Provided that, save as otherwise provided in any law, orany rules, regulations or by-laws made under any law for the time being in force,no such permission shall be necessary for demolition ofan existing structure, erection or building or partthereof, in compliance of a statutory notice from aPlanning Authority or a Housing and Area DevelopmentBoard, the Bombay Repairs and Reconstruction Board orthe Bombay Slum Improvement Board established underthe Maharashtra Housing and Area DevelopmentAct, 1976.][(2) Without prejudice to the provisions of sub-section(1) or any other provisions of this Act, any personintending to execute 3[an Integrated Township Project]on any land, may make an application to the StateGovernment, and on receipt of such application he StateGovernment may, after making such inquiry as it maydeem fit in that behalf, grant such permission anddeclare such project to be 1[an Integrated TownshipProject] by notification in the Official Gazette or, rejectthe application.]45.Grant of refusal of permission(1) On receipt of an application under section 44 thePlanning Authority may,subject to the provisions of this Act, by order in writing—(i) grant the permission, unconditionally ; (ii) grant the permission, subject to such general orspecial conditions as it mayimpose with the previous approval of the StateGovernment ; or(iii) refuse the permission.(2) Any permission granted under sub-section (1) withor without conditions shall be contained in acommencement certificate in the prescribed form.(3) Every order granting permission subject towp1405.24.odt5 of 10 conditions, or refusing permission shall state thegrounds for imposing such conditions or for such refusal.(4) Every order under sub-section (1) shall becommunicated to the applicant in the manner prescribedby regulations.(5) If the Planning Authority does not communicate itsdecision whether to grant or refuse permission to theapplicant within sixty days from the date of receipt of hisapplication, or within sixty days from the date of receiptof reply from the applicant in respect of any requisitionmade by the Planning Authority, whichever is later, suchpermission shall be deemed to have been granted to theapplicant on the date immediately following the date ofexpiry of sixty days :[Provided that, the development proposal, for which thepermission was applied for, is strictly in conformity withthe requirements of all the relevant DevelopmentControl Regulations framed under this Act or bye-laws orregulations framed in this behalf under any law for thetime being in force and the same in no way violateseither the provisions of any draft or final plan orproposals published by means of notice, submitted forsanction under this Act :Provided further that, any development carried out inpursuance of such deemedpermission which is in contravention of the provisions ofthe first proviso, shall be deemed to be an unauthoriseddevelopment for the purposes of sections 52 to 57.(6) The Planning Authority shall, within one month fromthe date of issue of commencement certificate, forwardduly authenticated copies of such certificate and thesanctioned building or development plans to theCollector concerned.]46. Provisions of Development plan to be consideredbefore grantingpermission. The Planning Authority in considering application forpermission shall have due regard to the provisions ofany draft or final plan [or proposal] [published by meansof notice] [submitted] or sanctioned under this Act.[Provided that, if the Development Control Regulationsfor an area over which a Planning Authority has beenwp1405.24.odt6 of 10 appointed or constituted, are yet to be sanctioned, thenin considering application for permission referred to insub-section (1), such Planning Authority shall have dueregard to the provisions of the draft or sanctionedRegional plan, till the Development Control Regulationsfor such area are sanctioned:Provided further that, if such area dose not have draft orsanctioned Regional plan, then Development ControlRegulations applicable to the area under any PlanningAuthority, as specified by the Government by anotification in the Official Gazette, shall apply till theDevelopment Control Regulations for such area aresanctioned. ]47.Appeal47. (1) Any applicant aggrieved by an order grantingpermission on conditions orrefusing permission under section 45 may, within fortydays of the date of communication of the order to him,prefer an appeal to the State Government or to anofficer appointed by the State Government in this behalf,being an officer not below the rank of a DeputySecretary to Government ; and such appeal shall bemade in such manner and accompanied by such fees (ifany) as may be prescribed.(2) The State Government or the officer so appointedmay, after giving a reasonable opportunity to theappellant and the Planning Authority to be heard, byorder dismiss the appeal, or allow the appeal bygranting permission unconditionally or subject to theconditions as modified.”7.Chapter IV of the Act, is a complete Code. It makes provisionregarding control of development and use of land included indevelopment plans. Section 44 of the Act deals with restriction ondevelopment of land. According to Section 45 of the Act any personintending to carry out development is mandatorily required to make anapplication in writing to Planning Authority. Such application would bewp1405.24.odt7 of 10 entertained by the authority in accordance with relevant rules. UnderSection 45 of the Act, it is open for the Planning Authority to grant orrefuse permission. The grant of permission could be conditional too.Section 46 of the Act mandates provisions of development plan to beconsidered before granting permission.8.In the instant case, respondent Municipal Corporation isPlanning Authority. The owners of Gut No. 14 being interested indevelopment of land applied for sanction of layout. This application isgranted by Planning Authority to the extent of land except affected byreservation. The statute provides for an appeal under Section 47 of theAct against conditional grant of development permission i.e. sanction oflayout. The phraseology used in Section 47 of the Act makes abundantlyclear that there would be right to file an appeal created in favour of anapplicant who wishes to take exception to the conditions imposed forgrant of / sanction of layout or rejecting thereof. These words are soclear and unambiguous to indicate that it is only to the applicant who isthe vested with the statutory right of the appeal under Section 47 of theAct and none else.9.It is settled position of the law that the appeal is a statutoryremedy and unless provided in the statute no right vests in any personto file appeal. Pertinently Section 47 of the Act only refers to thewp1405.24.odt8 of 10 applicant and not the aggrieved person and therefore petitioner cannotbe allowed to claim herself as aggrieved by grant of conditional layout orrejection thereof. Since the petitioner or the predecessor of the petitioneris not an applicant, the petitioner would not get any right to prefer anappeal against the sanction of the layout under Sections 44 to 46 of theAct. In case of Siddheshwar s/o Panchappa Hawa Vs. State ofMaharashtra and Ors. (supra) Coordinate Bench of this Court has takensimilar view that there is no right of appeal conferred on third partyunder Section 47 of the Act and as such appeal would not be tenable. 10.Now question arises as to whether the order passed by theDivision Bench of this Court could be construed as vesting of the right ofthe appeal in the petitioner under Section 47 of the Act. The orderpassed by the Division Bench of this Court as recorded above only keptright of petitioner open to avail appellate remedy available in law. Thishowever does not confers any right of the petitioner to prefer an appealunder Section 47 of the Act more particularly when no such right isvested with the petitioner in view of the said provision. The order passedby the Division Bench therefore would not come to the aid of thepetitioner in any manner to maintain an appeal filed Section 47 of theAct.11.The Additional Chief Secretary, Town Planning has rightlywp1405.24.odt9 of 10 taken into consideration the provisions of Section 47 of the Act and hasheld that the appeal not been maintainable. Pertinently the authorityhas considered the issue raised to be a grievance and issued direction tothe Municipal Corporation to consider the objections raised by thepetitioner in respect of the sanction of the layout and to take furtheraction in accordance with the rules. The impugned order therefore takescare of the grievance of the petitioner and as such on both counts it doesnot deserve any interference. The petition sans merits and hence standsdismissed.12.Learned counsel for the petitioner submits that it be clarifiedthat the dismissal of the petition would not come in way of the petitionerto avail appropriate remedy against the action of the Corporation inaccordance with law. It is always open for the petitioner to adoptappropriate remedy as provided under the law against the action of theMunicipal Corporation and it is clarified that dismissal of this petitionwould not come in the way of the petitioner in any manner whatsoever.(R. M. JOSHI, J.)sspwp1405.24.odt10 of 10
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1405 OF 2024SOW RAKHI W/O SANJAY BHARUKAVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr. S. S. Agrawal, Advocate for the petitioner Mr. A. P. Bhandari, Advocate for respondent Nos.2 and 3Ms. M. N. Ghanekar, AGP for the respondent/StateCORAM: R. M. JOSHI, J.DATE: 7th MAY, 2025PER COURT :-1.Issue involved in this petition is as to whether appeal filed bythe petitioner, who is not an applicant under Section 44 of theMaharashtra Regional and Town Planning Act, 1966 (for short ‘MRTP Act’)is maintainable under Section 47 of the MRTP Act.2.The facts which are necessary for the sake of appreciation ofthe rival contentions are reproduced herein below.(i)Petitioner is the purchaser of one of the plots from Gut No.14. Her predecessor had purchased the plot along with 52 other personsunder the sale deed. The plot owners were joint owners of Gut No. 14.Some of the plot owners moved an application under Section 44 of theMRTP Act for sanction of the layout in Gut No. 14. In respect of thesanctioned of the said layout four other owners raised objection. Thewp1405.24.odt1 of 10 objection came to be overruled and layout was sanctioned excepting forland under reservation. Admittedly neither petitioner nor her predecessoris an applicant who sought sanction of layout under Section 44 of theMRTP Act.(ii)Petitioner filed civil suit bearing R.C.S. No. 628/2012 againstthe owner of the adjoining plot seeking injunction. Petitioner alsopreferred writ Petition bearing No. 3408/2015 against the sanction of thelayout on Gut No. 14. This petition came to be disposed of by theDivision Bench of this Court by passing following order;“Keeping the option of the petitioner to avail of theAppellate remedy available in law, open. Writ Petitionstands disposed of.”(iii)Pursuant to the said order, petitioner filed appeal before theState Government being Appeal No. TPS/3015/825/P.K.301/2015/NAVI-30. The Additional Chief Secretary, Town Planning rejected the saidappeal by passing impugned order 08/06/2023. Hence, this petition.3.Learned counsel for the petitioner submits that admittedlythe petitioner is one of the joint owners of Gut No. 14 and it is hissubmission that in view of the relevant provisions of the Act and Rulesframed thereunder, there could not have been any applicationentertained by the Planning Authority for sanction of layout unless thesame has been made by all plots owners. By referring to the reportwp1405.24.odt2 of 10