MISHRIMAL JETHMAL OSWAL Vs. LONAVLA MUNICIPAL COUNCIL

JUDGEMENT

(1.) THE Petitioner has filed this writ petition seeking directions to respondent No.1 Lonavla Municipal Council to cease all further construction upon Sites 3 and 9 of Sector F of the Development plan of Lonavla , till the proper procedure as prescribed under Sec. 37 of the Maharashtra Regional and Town Planning Act, 1963 (hereinafter referred to as the MRTP Act) has been completed and sanction of respondent No.5 State Government has been obtained and for directing the respondent No.1 to demolish the construction already made upon the said sites and restore these sites to their original position, if required sanction is not given finally by respondent No.5.

(2.) THE Petitioner is a citizen and residing at Lonavla . Respondent No.1 is the Lonavla Municipal Council and respondents 2 and 3 are its officers. Respondent No.4 is the Director of the Town Planning, Maharashtra , whereas the respondent No.5 is the State Government. It is submitted on behalf of the Petitioner that the respondent No.4 is an authority appointed by the State Government under MRTP Act. Under Sec. 37 of the MRTP Act, it is the respondent No.5 which has to accord a sanction to any modification in a final development plan after consulting the respondent No.4. According to the Petitioner, the Development plan to Lonavla (Revised) has been sanctioned by the concerned department in the year 1978 and it came into force on 1.2.1978. The said plan of the area of Lonavla railway station and areas surrounding around site Nos.3 and 9, show that the area is reserved for the Primary school and play ground (site No.3) and Municipal Hospital and staff quarters (site No.9) have been marked in red upon the plan annexed as Exh , A to the Petition. It is the case of the Petitioner that the respondent No.1 decided to amend the Development plan of Lonavla and has already begun construction work upon the new site of certain plots of land without having followed proper procedure under the law. It is against this modification of the Development plan that the Petitioner is constrained to file this Petition. One of the proposed modification in the Development plan is that a portion of the hospital and staff quarters land is proposed to be used for building a shopping centre. Respondents 1 ,2 , & 3 have issued an advertisement in newspaper that an auction will be held of the galas in the proposed shopping centre in the month of October, 1991 and hence the petition is filed in this Court to seek relief against such move initiated by respondents 1, 2 & 3.

(3.) THE Petition is filed in the year 1991. As the record shows, drastic developments have taken place till the matter finally came up for hearing. Mr. K.K. Singhvi , the learned counsel for the Petitioner took us through the various provisions of the MRTP vis a vis the state of facts revealed from the record and submitted that the entire auction initiated and taken on behalf of the respondents 1, 2 and 3 is illegal and bad in law and, therefore, is liable to be rectified by direction of this Court. On the other hand, Mr. Pitre , the learned counsel appearing for respondents 1,2 and 3 submitted that pending the Petition, the Development plan for Lonavla in respect of Site Nos. 3 and 9 of Sector F has been modified and in view of this aspect, the entire petition is rendered infructuous . In this regard, our attention is invited to the affidavits filed on behalf of respondent No.1 as well as respondent No.4. The Asstt . Director of Town Planning has averred in the affidavit that she has carried out an inspection of the impugned sites on 14.12.2001 and observations made in the course of the said inspection have been noted in inspection note prepared by the office which is annexed to the affidavit. According to her, in respect of Site No.3, the said site was divided into two parts under Sec. 37 of the MRTP Act. The eastern part was reserved for Primary School and play ground and the western part was reserved for shopping centre, auditorium and offices. In the site reserved for primary school and play ground, it was observed that shops, commercial galas were constructed on the ground floor. On an application made under Rule 17 of the Development Control Rules applicable to Lonavla Municipal Council respondent No. 4, in exercise of power conferred by the relevant rules, has permitted the said shops to be used for purposes, ancilliary and incidental to the purpose of having a primary school. The inspection note annexed to the affidavit also bears out this aspect. The affidavit filed on behalf of respondent No. 1 in June, 2002 also supports the latest affidavit filed on behalf of the respondent No.4. According to the respondent No. 1, the Development plan came into operation w.e.f . 1.2.1978 and thereafter a new Development plan after a period of 20 years was prepared and is submitted for approval to the competent authority and the aforesaid sites No.3 and 9 of Sector F, have been shown as reserved for School and Shopping Centre. Thus, the new Development plan will come into effect in near future and the use of the said sites will be perfectly within rules. These aspects apart, in our considered view, when respondent No.4 has accorded its sanction to modification of the Development plan, the Petition should not survive in the ordinary course of nature especially in view of the prayers made therein, which categorically state that all the construction activity must cease on the impugned sites "till the proper procedure as prescribed under Sec. 37 of the MRTP Act has been completed