SHIRDI NAGAR PANCHAYAT Vs. GORDIA BUDGET HOTEL

JUDGEMENT

(1.) Heard counsel for the parties. This appeal is directed against the judgment and order dated 19.7.2007 passed by the District Judge-I, Kopargaon dismissing Regular Civil Appeal no. 63 of 2003 filed by the appellant Municipal Council.

(2.) The facts leading to the appeal are almost undisputed and lie within narrow campass. Local administration of the shrine town of Shirdi was previously in the hands of Shirdi Village Panchayat constituted under the Bombay Village Panchayats Act, 1958. (for short "the Village Panchayat Act"). On 25th/28th August, 1988, on an application of the respondent, the Shirdi Village Panchayat granted permission to respondent no.1 (hereinafter referred to as the respondent) to construct the ground+7 storied building on it's property. Soon thereafter the construction was commenced and till January, 1990, R.C.C. framework of the ground+2 upper floors was completed. On 10th January, 1990, the Government of Maharashtra, by virtue of the powers vested in it under the provisions of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 (for short the Municipalities Act) issued a notification declaring that with effect from 10th January, 1990 the area within the limits of the revenue village and gaothan of village Shirdi shall be a municipal area. Shirdi Municipal Council, which is the appellant herein, was thus established on 10th January, 1990. On 29th March, 1990, the Government of Maharashtra issued another declaration under section 23(1) of the Maharashtra Regional and Town Planning Act, 1966 (for short the Town Planning Act), of it's intention to prepare a development plan for the Shirdi Municipal Council area. The draft development plan was accordingly prepared and sanctioned by the Government of Maharashtra under section 31 of the Town Planning Act with effect from 25th February, 1993. By that time, the construction of the respondent had not progressed beyond the ground+2 upper floors. On 17th July, 1993 the appellant municipal council issued a stop work notice to the respondent informing him that the building permission dated 25th August, 1988 granted by the erstwhile Shirdi Village Panchayat had lapsed and advised it to apply afresh for building permission in accordance with law. On 25th November, 1993, the respondent filed a suit, bearing Regular Civil Suit no. 49 of 1993 in the Court of Civil Judge, Junior Division at Kopargaon for a declaration that the building permission granted to it by the erstwhile Shirdi village panchayat on 25th August, 1988 was legal and valid and was in full force and effect and for a further declaration that it was not necessary for the respondent to apply afresh or renew the building permission. It further prayed for a declaration that the notice dated 17th July, 1993 issued by the appellant to stop work and to apply afresh for the building permission was illegal and void. The respondent further prayed for an injunction restraining the appellant from preventing it from carrying out the building construction beyond ground + two upper floors in pursuance of the building permission granted by the erstwhile Shirdi Village Panchayat on 25th August,1988. On 1.7.1996, during the pendency of the suit, the respondent applied for a completion certificate and permission to use and occupy the ground + two upper floors of the building the construction of which was completed by then. On 29th July, 1996, the appellant granted completion certificate and permission to use ground and two upper floors of the building with a caveat that the respondent should not carry out any further building construction. During the pendency of the suit some further construction appears to have been made by the respondent but the same is not the subject matter of the suit or present appeal.

(3.) After hearing the parties and considering the oral and documentary evidence adduced by the parties, the trial Court by it's judgment and order dated 4th September, 1993, decreed the suit of the respondent. The trial Court held that the plan sanctioned by the Shirdi Village Panchayat on 25th August,1988 was legal and valid. It further held that there was no need for the respondent to apply for fresh building permission after constitution of the Municipal Council and the respondent was entitled to carry out the building construction in accordance with the plan sanctioned by the Shirdi Village Panchayat. In view of this it granted the declaration that the building plan was valid and notice dated 17th July, 1993 issued by the appellant was invalid and illegal. It also granted an injunction restraining the appellant Municipal Council from preventing the respondent from carrying out building construction in accordance with the building plan sanctioned by the Shirdi Village Panchayat on 25th August,1988.