VIJAY SHANKARRAO AMBHORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard the learned counsel for the parties.

(2.) The challenge raised in this writ petition is to the communication dtd. 26/12/2018 issued by the Assistant Director, Town Planning Department, Nagpur Municipal Corporation, Nagpur by which it has been directed that in accordance with the Development Control Rules of the City of Nagpur, the petitioner should submit the building plans after leaving 15% open space equivalent to 189.42 square meters.

(3.) The facts giving rise to the present proceedings are that Survey Nos.2041 and 2043 admeasuring 9048.075 square meters was owned by Pande family. In a family arrangement Survey Nos. 2041/2 and 2043/1 admeasuring 579.337 square meters and 683.46 square meters respectively totalling 1262.83 square meters came to the share of Shri Maheshkumar Pande. Insofar as the other share of land admeasuring 1779.13 square meters is concerned, the building plan was sanctioned by the Nagpur Improvement Trust on 14/1/1997 without requiring 15% area to be left open. Another map pertaining to 1754.50 square meters was sanctioned by the Nagpur Improvement Trust on 10/11/2002 in which 15% area was kept open. A building plan for development of the area admeasuring 1262.83 square meters which is the subject land came to be submitted on 5/10/2001. The Superintending Engineer of the Nagpur Improvement Trust examined the same and approved it on 22/6/2002. A demand note came to be issued to the owner on 28/6/2002 and pursuant thereto the owner paid amount of Rs.2,71,997.00 on 3/7/2002 with the Nagpur Improvement Trust. In the meanwhile, Notification dtd. 27/2/2002 came to be issued by the State Government as a result of which the Nagpur Improvement Trust ceased to be the Planning Authority from 28/6/2002 and Nagpur Municipal Corporation (for short, the Corporation) became the Planning Authority. While considering the aforesaid building plan, it was noted that the amalgamated plot area was more than 1000 square meters and hence it was proposed to consider a building plan with Floor Space Index (FSI) of 1.25. It was also noted in the note sheet prepared by the Nagpur Improvement Trust dtd. 21/2/2005 that as the land was sub-divided by the City Survey Office, 15% open space could be relaxed in favour of the owner since the land was less than 0.40 Hectare. The Superior Authority however opined that for grant of sanction, 15% open space was required to be left since there was an unauthorised sub-division of the entire plot. The Executive Engineer of the Nagpur Improvement Trust on 22/3/2005 informed the petitioner who is the power of attorney holder of the owner of the land that for the purposes of sanctioning building plan, the FSI be shown as one and 15% open space be left as per Rules. Being aggrieved by the said communication, the petitioner approached this Court by filing Writ Petition No.30 of 2005. On 19/4/2005 this Court observed that the Nagpur Improvement Trust was expected to consider the case of the petitioner by treating two survey numbers as one plot for the purposes of grant of sanction, calculation of FSI and application of Development Control Rules. It was noted that the initial plan was submitted by the petitioner on 5/10/2001 which was sanctioned by the Nagpur Improvement Trust and the amount as per the demand note had been paid. Pursuant thereto, on 25/4/2005 the Executive Engineer, Nagpur Improvement Trust again called upon the petitioner to submit the building plans with FSI of 1.25 and after leaving 15% open space for sanction. Hence while admitting the said writ petition on 27/4/2005 the Court directed the Nagpur Improvement Trust to consider the plan of the petitioner in accordance with the Building Bye-laws and the Rules after treating two survey numbers as one plot for grant of sanction. On 4/1/2006 the petitioner had again informed to submit the building plans with FSI of 1.25 and 15% open space as per the Development Control Rules. In the meanwhile, when the writ petition was pending the petitioner approached the State Government in the matter. On 30/6/2008 the State Government issued a communication to the Commissioner, Nagpur Municipal Corporation stating therein that as per the case of the petitioner since the plot area was below 4000 square meters, it was not necessary to leave 15% open space for sanctioning the building plan. The Corporation was therefore directed to take necessary decision and if found necessary to obtain any clarification from the High Court. Writ Petition No.30 of 2005 was decided on 9/6/2016. This Court noted developments that took place during the pendency of the proceedings and also referred to the communication dtd. 30/6/2008 issued by the State Government. It observed that despite liberty being granted to the Corporation to seek any clarification in case of any difficulty or confusion, no steps were taken either by the Corporation or by the Nagpur Improvement Trust. It was therefore obligatory for the Corporation to have considered the request of the petitioner as contained in the communication dtd. 30/6/2008. It was thus directed that the said communication should be complied with by the Corporation within a period of three months from the date of the judgment.