Suresh Pandharinath Waghere v. The State Of Maharashtra And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.12473 OF 2022 Suresh Pandharinath Waghere .. Petitioner v/s.

The State of Maharashtra & Ors.

.. Respondents Mr. Hemant Ghadigaonkar for the petitioner.

Mr. D.R. More a/w S.A. Gawade for the respondent nos.2 & 3. Mr. Ravi P. Kadam, AGP, for the State-respondent no.1 & 4-PCMC. CORAM : R.D. DHANUKA & KAMAL KHATA, JJ.

DATED : 17TH OCTOBER, 2022.

P.C. :

1. Rule. The learned counsel appearing for the respondents waives service. Rule is made returnable forthwith.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari for setting aside the notice dated 29 th April, 2022 issued by the Respondent No.3 under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 (for short "MRTP Act").

Digitally signed by SANDHYA BHAGU WADHWA Date:

2022.10.19 11:25:09 +0530 SANDHYA BHAGU WADHWA 1/4

3. The learned counsel for the petitioner states that the petitioner has already applied for the measurements to the City Survey Officer on 15 th July, 2022 in respect of the land in question. However, the measurements have not been taken by the City Survey Officer till date. He tenders a copy of the receipt showing acknowledgment of the said application dated 28 th April, 2021 issued by the City Survey Officer, Pimpri Chinchwad.

4. It is submitted by the learned counsel for the Petitioner that the petitioner shall apply for an appropriate permission under Section 44 of MRTP Act read with Rule 6 of the Maharashtra Development Plans Rules,1970 within four weeks from the date of service of the measurements sheet of the measurements carried out by the City Survey Officer. Statement is accepted.

5. The Petitioner shall comply with all the requirements as prescribed under the Maharashtra Development Plans Rules and Development Control Rules while making such application for an appropriate permission under Section 44 of the MRTP Act. We direct the City Survey Officer to take measurements of the land in question in thepresence of the Petitioner and the respondent Nos.2 and 3 on 1 st November, 2022 at 11:00 am. The petitioners are 2/4

directed to remain present at the site. If the Respondent Nos.2 and 3 propose to remain present at the time of taking measurements, they are also allowed to remain present. Copy of the measurements sheet shall be provided to the petitioner as well as to the Respondent Nos.2 and 3 by the City Survey Officer. If any further payment is required to be made for carrying out measurements, it shall be exclusively paid by the petitioner.

6. It is made clear that, if an application is not made by the petitioner for the permission under Section 44 of the MRTP Act within a period of four weeks from the date of service of the measurement sheet by the City Survey Officer, the interim protection granted by this Court shall stand vacated without further reference to the Court. In that event, the authority that issued the impugned notice shall be at liberty to proceed with the notice and execute such notice against the offending structure.

7. Till such time that the measurements sheet is issued by the City Survey Officer and the application for permission under section 44 of the MRTP Act is decided by the Respondent No.3, and for period of two weeks from the date of communication of the order, the Respondent Nos.2 and 3 shall not take any coercive steps 3/4

against the petitioner and the offending structure in pursuance of the notice dated 29 th April, 2022. The Respondent No.3 shall make an endeavour to dispose off the said application for regularization within eight weeks from the date of receipt of such application and shall communicate the order to the petitioner within one week from the passing of such order. If the application under Section 44 of MRTP Act is accepted by Respondent Nos.2 and 3, appropriate consequential relief shall be granted in favour of the petitioner within four weeks from the date of passing such order. If such an application is rejected, the Petitioner would be at liberty to file appropriate proceedings as permissible in law. It is made clear that this Court has not expressed any views on the application for seeking permission under Section 44 of the MRTP Act that would be made by the petitioner. All questions on the merits of the said application are kept open.

8. Writ petition is disposed off in aforesaid terms. Rule is made absolute. No order as to costs.

9. Parties to act on the authenticated copy of this order. (KAMAL KHATA, J.) (R.D.DHANUKA, J.) 4/4