GOROBA S/O PANDURANG GADEKAR Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-8-50
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Decided on August 03,2017

Goroba S/O Pandurang Gadekar Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

- (1.) Rule. Respondents waive service. By consent, Rule is made returnable forthwith.
(2.) This Public Interest Litigation seeks the following reliefs :- "A) By a writ of mandamus or orders or directions in the nature of mandamus, respondent No.5 Latur Municipal Corporation be directed to take action against the illegal construction made by the respondent No.7 M/s. S.B. Pallod Construction Co., Latur and respondent No.6 Agricultural Produce Marketing Committee, Latur in accordance with the provisions Maharashtra Regional and Town Planning Act, 1966. B) By a writ of mandamus or orders or directions in the nature of mandamus, Completion Certificate as well as Occupancy Certificate may not be issued to the respondent No.6 Agricultural Produce Marketing Committee, Latur and respondent No.7 M/s. S.B. Pallod Construction Co., Latur."
(3.) In this Public Interest Litigation, two orders were passed. One is dated 19/04/2017 and the another is dated 14/06/2017. They read, as under :- "1. Learned counsel for petitioner contends that respondent APMC is not a local authority within meaning of section 2(15) of Maharashtra Regional Town Planning Act and, as such, the provisions of section 44 relating to grant of exemption for obtaining development permission does not apply. 2. Learned counsel for respondent-APMC has invited our attention to section 12(2) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act , 1963, which provides that notwithstanding anything contained in any law for the time being in force, every Market Committee shall, for all purposes, be deemed to be a local authority. Even if it is assumed that respondent no. 6 is a local authority and no development permission is required, however, the development that is being carried out shall have to be in conformity with the building by-laws and regulations permitting development within the Corporation area. The construction plan shall have to be in conformity with the development regulations framed by the Corporation. There are certain deficiencies pointed out by the Municipal Corporation which shall have to be ratified. Learned counsel for respondent no.6 contends that the development is being carried out in conformity with the rules and regulations and, there is no violation at the instance of respondent no. 6. 3. In the circumstances, we direct the Commissioner, Municipal Corporation, Latur, to examine the development plans submitted by respondent no. 6 and shall record finding as to whether the plans and development are in conformity with the development regulations. The Commissioner, Municipal Corporation, Latur, shall extend an opportunity of hearing to respondent no. 6 and thereafter proceed to record his finding. The Commissioner shall tender his affidavit to this Court on the adjourned date. 4. Stand over to 13th June, 2017." Order dated 14/06/2017 - "1 The grievance in this Public Interest Litigation is that a construction of purely commercial nature is carried out and at the behest of Respondent No.6/APMC by Respondent No.7/ Builder and Developer. 2 Interestingly, in the reply affidavit of Respondent No.7, after alleging that the litigation is initiated because of a business rivalry by another real estate developer, it is stated in paragraph 2 that Respondent No.6 APMC has executed the Development Agreement which is styled as "Built, Operate and Transfer Basis" with Respondent No.7 on 03.05.1999. The Deponent says that the construction of shops in pursuance of this agreement has been carried out and is on the verge of completion. The Petitioner has not raised any grievance from 1999 till 2013. 3 However, it is the Respondent No.7 who says that Respondent No.6 is a Committee which is constituted by the State Government by issuing a notification under Sections 3 and 4 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act , 1963 (for short "the APMC Act"). Respondent No.7 further says that though the lands of Respondent No.7 are situated within the municipal limits of Respondent No.5/ Municipal Corporation, by virtue of Sections 3 and 4 of the APMC Act the State Government by issuing a notification and duly publishing the same in the official gazette has specified the market area and this land is excluded from the jurisdiction and purview of Respondent No.5. This gentleman boldly says that the provisions of the Maharashtra Regional Town Planning Act, 1966 (for short "the MRTP Act") and the building bye-laws cannot be made applicable to the market area by the State Government. The market area specified by the State Government under the control and supervision of Respondent No.6, therefore, stands exempted from such law. 4 Pertinently, we do not find any endorsement of such legal position as is projected by Respondent No.7, but Respondent No.6/APMC's affidavit filed on 13.02.2014 in paragraphs 2 and 3 states as under :- "2. I say that the respondent No.6 APMC is a statutory authority and a body corporate as per the provisions of Maharashtra Agricultural Produce Marketing (Development and Regulation) Act , 1963. That, the respondent No.6 APMC is governed by the provisions of the above referred Act and the Rules thereunder. I say that as per the provisions of Section 12(2) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act , 1963 APMC is a local authority. I say that the Market Committee are established for the regulation of sale of agricultural produces and the same are under the control of respondents 3 and 4. 3. I say that for achieving the aims and objects of the establishment of Market Committees, the Market Committees are required to carry on certain development works within the area of market yards and/or sub-market yards. I say that the Market Committees are discharging the statutory obligations. I say that by virtue of Section 44 of the Maharashtra Regional and Town Planning Act, 1966 the Market Committees being local authorities are exempted from obtaining the construction permissions and from applicability of the provisions of the Maharashtra Regional and Town Planning Act, 1966. I say that, therefore, obtaining of construction permission to the development work to be carried in the area of market committee and/or market yards, sub- market yards is not necessary. I say that the respondent No.6 Market Committee has till this date has not obtained any construction permission to the development work or construction work within the area of market committee and/or market yards, sub market yards considering the exemption by virtue of Section 44 of the Maharashtra Regional and Town Planning Act and in such circumstances the public interest litigation filed by the petitioner is without substance and there is no merit." 5 It is stated that Respondent No.6/ APMC is required to carry on certain development works. It is discharging statutory obligation. The APMCs being local authorities are exempted from obtaining construction permission and from applicability of the MRTP Act. Therefore, obtaining of construction permission is not necessary. Boldly, the APMC says that it has till date not obtained any construction permission for this development work or construction work within the area of Market Committee or Market yard or sub-market yards. 6 Section 44 of the MRTP Act postulates an application for permission for development. It says that except as otherwise provided by rules made in this behalf, any person not being Central or State Government or local authority intending to carry out 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. The argument raised in this petition is, therefore, whether, "local authority" as defined in Section 2 clause (15) of the MRTP Act would include the APMC. That definition reads thus:- "(15) "local authority" means - (a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act, or the Nagpur Municipal Corporation constituted under the City of Nagpur Municipal Corporation Act, 1948 or any Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949, (b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965, (c) (i) a Zilla Parishad constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, (ii) the Authority constituted under the Maharashtra Housing and Area Development Act, 1976, (iii) the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust Act, 1936, which is permitted by the State Government for any area under its jurisdiction to exercise the powers of a Planning Authority under this Act;" 7 A bare reading of this definition does not denote that it includes a APMC. However, the Builder and Developer and equally the APMC are relying upon a statutory exemption and which according to them, flows from the statutes itself. 8 We do not see as to how at any hearing before the Planning Authority, particularly Respondent No.5/ Municipal Corporation, such legal issues as are raised, can be debated and conclusively decided. If the Municipal Corporation, Latur is the Planning Authority and it says that it will be hearing the APMC and passing an order, then, it is surprising that such legal issues as are raised and noted in this Court's order passed on 19.04.2017, would necessarily have to be decided, but a creature of the law or at least the authority designated as a planning authority by law, would decide whether, the planning law applies or planning law itself is inapplicable to APMC. With greatest respect, to our mind, that is a function of this Court and we cannot abdicate it in favour of any authority. 9 In such circumstances, we direct the Municipal Corporation to be ready on this legal point on the next date. No direction or decision of the Municipal Corporation will have any bearing on this issue. 10 Stand over to 22.06.2017 on the supplementary board." ;


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