SIDDHESHWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The challenge raised in this writ petition filed under Article 227 of the Constitution of India is to the order dated 02/06/2017 passed by the respondent no.1 thereby refusing to entertain the appeal filed by the petitioner herein under Section 47 of the Maharashtra Regional and Town Planning Act, 1966 (for short, the said Act) thus also refusing to consider the prayer for grant of stay in that appeal.

(2.) The facts in brief are that it is the case of the petitioner that he is the owner and occupier of an apartment that has been constructed by the respondent Nos.6 on the plot of land owned by the respondent No. 7 herein. It is the grievance of the petitioner that the common areas that are meant for use of all flat owners has been utilized by the said respondents contrary to the sanctioned plan and in a manner contrary to the provisions of the Apartment Ownership Act, 1970. In view thereof the petitioner has filed R.C.S. No.517/2011 before the civil Court seeking relief in that regard which suit is pending. During pendency of that suit on 27/06/2014 the Planning Authority passed an order approving certain changes in the sanctioned plan. The petitioner being aggrieved by that action sought to challenge the same by filing an appeal under Section 47 of the said Act. As there was delay in filing the said appeal an application for condonation of delay was also filed along with the said appeal. The Appellate Authority by the impugned order has held that the petitioner had no locus to challenge the building permission as granted to a third party and further there was also no provision to grant any stay to the said building permission as prayed for by the petitioner. Being aggrieved the petitioner has challenged the said order in the present writ petition.

(3.) Shri S. S. Dhengale, learned counsel for the petitioner submitted that since the petitioner was a flat owner in the building erected by the respondent No.6 and since the said plan was modified thereby affecting the common areas to which all the flat owners were entitled, the petitioner had challenged that action by filing an appeal under Section 47 of the said Act. The petitioner had sufficient locus to maintain the said appeal in view of the fact that on account of the revised sanctioned plan, his rights as regards the common areas had been affected. Referring to the provisions of Section 47 of the said Act it was submitted that "any applicant" aggrieved by an order granting permission can prefer an appeal within a period of forty days before the Appellate Authority. Since the petitioner was aggrieved by the modified sanction order dated 27/06/2014, he had preferred the said appeal. The respondent No.1 ought to have entertained the same and it ought to have proceeded to adjudicate the appeal in accordance with law. Failure to do so had resulted in failure to exercise jurisdiction by the respondent No.1 and hence the impugned order was liable to be set aside.