2001(3) ALL MR 872
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.K. BARDE AND D.S. ZOTING, JJ.

Vithal Ramchandra Devkhar & Anr. Vs. The State Of Maharashtra & Ors.

Writ Petition No. 187 of 1989

18th January, 2001

Petitioner Counsel: K.G. GAWALI , C.K. SHINDE
Respondent Counsel: Smt. A.V. GONDHALEKAR,Sarvashri. S.B. TALEKAR , A.S. GOLEGAONKAR,Shri. S.D. KULKARNI

(A) Maharashtra Regional and Town Planning Act (1966), S.45(5) - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.189(6) - Scope of - Application for development of property - Deemed permission provisions of S.45(5) of M.R.T.P. Act and 189(6) of M.M.C.Act can not be read in isolation - These provisions must be considered as supplemental to each other, together with Notification Dt.16th December 1981.

Notification issued under S.37 of M.R.T.P.Act, Dt.16th Dec.1981. (Para 49)

(B) Maharashtra Regional and Town Planning Act (1966), Ss.44, 45(5) - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.189(6) - Deemed Permission - Presumption of - Construction work at prohibited area - Construction of Cinema theatre, carried out within prohibited area of floodline of 1 lakh cusecs water discharge - Application for grant of permission - Application made to Municipal Council - Applicant not receiving any communication from the council within the period of 60 days - Deemed permission, cannot be presumed as no construction or reconstruction will be permitted within floodline of 1 lakh cusecs of water discharge - Municipal Council cannot grant such permission - Held, to presume that there was deemed permission, first there must be authority to grant permission.

Notification issued under S.37 of M.R.T.P. Act, Dt.16th Dec.1981

AIR 1974 SC 2177 - Followed. (Para 52)

(C) Bombay Cinemas (Regulation) Act (1953), S.5(1) - Maharashtra Cinemas (Regulation) Rules (1966), Rr.91, 136 - Grant of permission for construction of cinema theatre - Applicability of Chapter VI - Premises constructed for cinematograph exhibition - Licence issued to exhibit cinema in that building, prior to commencement of these rules - Licence not to be revoked merely because the building is not as per rules prescribed under Chap.VI - New building constructed in place of old building - Rules in Chap.VI, will apply. (Para 58)

(D) Bombay Cinemas (Regulation) Act (1953), S.5(1) - Maharashtra Cinemas (Regulation) Rules (1966), R.91 - Grant of permission for construction of cinema theatre - Even if Executive Engineer has approved the plans, there must be a valid permission from the Municipal Council as per the provisions of M.M.Act and that of Maharashtra Regional and Town Planning Act (1966), Ss.44, 45 - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.189.

Even if the Executive Engineer has approved the plans, there must be a valid permission from the Municipal Council as per the provisions of the M.M.Act and as per the provisions of the M.R.T.P.Act.

In the instance case there was no valid permission from the Municipal Council for the building under either of the Acts. In such circumstances, granting licence to run cinema theatre in that building was not legal and proper. The role which is to be played by the authorities under the Cinema regulation Act, commences only after there is the valid permission from the Municipal Council and not before that or not by overriding the authority of the Municipal Council. The scope of granting licence or refusing licence is restricted to the provisions of the Cinema Regulation Act and the Cinema Regulation Rules. Here, by granting licence to run the cinema in the building without paying attention to the provisions of the M.M.Act and the M.R.T.P.Act is definitely in excess of the jurisdiction vested in the authorities under the Cinema Regulation Act. [Para 59,60]

(E) Constitution of India, Art.226 - Maharashtra Regional and Town Planning Act (1966), Ss.44, 45(5) - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.189 - Unauthorised Construction - Petition against - Respondent personally aware that Construction was not permitted within floodline of 1 lakh cusecs of water discharge, but spent a large amount for construction work - Use of political pressure to obtain necessary approval from Government - Held, it is not a case where matter can be considered to have a sympathetic view - Building ordered to be demolished.

(1999) 6 SCC 464 - Followed. (Para 69)

Cases Cited:
Jai Singh vs. Union of India, AIR 1977 SC 898 [Para 39]
D.L.F. Housing Construction (P) Ltd. vs. Delhi Municipal Corpn., AIR 1976 SC 386 [Para 39]
G.M. Bharat Coking Coal Ltd., West Bengal vs. Shib Kumar Dushad, 2000 AIR SCW 3883 [Para 39]
K.Ramadas Shenoy vs. The Chief Officers, Town Municipal Council, Udipi [Para 53]
M.I.Builders Pvt. Ltd. vs. Radhey Shyam Sahu, (1999) 6 SCC 464 [Para 70]


JUDGMENT

BARDE, J.:- The two Petitioners have filed this petition as public interest litigation. Petitioner No. 1 was the Member of the Rahuri Municipal Council - Respondent No. 4 - at the relevant time. He was a nominated independent Member of the Municipal Council. While Petitioner No. 2 was the permanent resident of Rahuri, a town situated in Ahmednagar district.

2. The Petitioners have contended that Respondent No. 3 - Shri. L.R. Bihani - who has expired during the pendency of the writ petition (and now his Legal Representatives are brought on record) was running cinema theatre, known as Usha Chitra Mandir, in CTS No. 417 of Rahuri. It was a quasi-permanent building.

3. The Petitioners have contended that the development plan of Rahuri under the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as, "the M.R.T.P. Act") was sanctioned on 17th September 1976, was published under the Government Notification, Urban Development and Public Health Department, and the same came in force on 1st November 1976. Chapter VI of the Report of the said Development Plan deals with the regulations for controlling the houses and development of the area within the Municipal Limits of Rahuri and the same is also known as the Existing Development Control Rules for Rahuri.

4. The Standardised Building Bye-laws and Development Control Rules for different Classes of Municipal Councils in the State of Maharashtra were submitted to the Government of Maharashtra by the State Level Committee appointed in this behalf and were accepted by the State Government on 2nd November 1979, which are being called Standard Development Control Rules. The State Government by its resolution dated 6th July 1980 issued under section 154 of the M.R.T.P. Act directed the Municipal Council to revise their existing rules on the lines of Standardised Rules by following the provisions of section 37 of the M.R.T.P. Act. Pursuant to the said directions of the State Government, Respondent No. 4, after following all the legal procedure under section 37 of the M.R.T.P. Act, submitted to the State Government for sanction the proposal for minor modifications of its said development plan so as to revise the existing Development Control Rules on the lines of the Standardised Development Control Rules. There, it specifically made provision to control the development within the floodlines of 1 lakh cusecs and 2,10,000 lakhs cusecs water discharge from Mula Dam. The petitioners have contended that the modification was necessary in view of the fact that the Mula Dam was constructed on River Mula about 6 to 7 Kms. upstream of Rahuri in the year 1969. So, it became necessary to provide for floodlines in the event of release of water from Mula Dam to avoid any danger to Rahuri town. The office of the Engineer of Mula Dam Project had prepared a plan showing the two floodlines for Rahuri town. The Petitioners have filed on record copy of the letter of Assistant Engineer, Mula Dam Project, giving the details about the floodlines and a plan of Rahuri town showing therein in red the area of the floodline limits of 1 lakh cusecs of water discharge and in green the area of the floodline limits of 1 lakh cusecs to 2,10,000 cusecs water discharge. The Government was satisfied, after making the necessary enquiry and after consulting the Director of Town Planning, with the proposed modifications and, therefore, a notification dated 16th November 1981 was published to modify the development plan and the existing Development Control Rules for Rahuri town. As per this modified development plan, no building shall be allowed to be constructed or reconstructed in the area falling within the floodline of 1 lakh cusecs water discharge.

5. The Petitioners have contended that Respondent No. 3 had his cinema theatre, Usha Chitra Mandir, in CTS No. 417 of Rahuri town, which falls within the floodline of 1 lakh cusecs water discharge shown in red colour in the map annexed with the petition.

6. Respondent No. 3 by his letter dated 30th April 1984 addressed to Respondent No. 2 informed that he had submitted plans for repairs to the Executive Engineer, B. & C., Sangamner, who, in turn, had sanctioned the same by his letter dated 4th July 1984 for the purpose of repairs of his theatre building. Respondent No. 3 immediately thereafter filed an application dated 26th October 1984 purported to be under section 44 of the M.R.T.P. Act, read with Rule 4(1) of the Rules framed thereunder, for permission to carry out the repairs of the said theatre as per the sanction given by the Executive Engineer, Sangamner. However, only a property extract was annexed to the said application and no maps of proposed new construction were submitted to Respondent No. 2 by Respondent No. 3. Respondent No. 2 by his letter dated 6th November 1984 informed Respondent No. 3 that no permission under the M.R.T.P.Act was necessary, as Respondent No. 3 was to carry out only internal repairs. Copies of this correspondence are filed on record by the Petitioners.

7. The Petitioners have contended that Respondent No. 3 had applied to the Collector, Ahmednagar, for renovation of the said theatre in accordance with the said permission for repairs granted by the Executive Engineer on 4th July 1984 and the Collector, Ahmednagar, by his letter dated 5th November 1984 gave permission for the repairs as per the plan approved by the Executive Engineer on 4th July 1984. The copy of that is also annexed with the petition.

8. The Petitioners have contended that, sometime in April - May 1985, Respondent No. 3 commenced the work of alleged repairs of the said theatre. At that time, residents of Rahuri town had no knowledge as to the exact nature of work being carried out by Respondent No. 3. It was understood that some repairs were being executed. By December 1985, the residents of Rahuri realised that Respondent No. 3 had, in fact, undertaken to demolish the old theatre building and to construct the new permanent cinema house and this was being done under the guise of permission for carrying out internal repairs and this work was being carried out within the prohibited area of floodline of 1 lakh cusecs water discharge.

9. Shri. Shaikh Jafar Dagdubhai, a resident of Rahuri town, made an application to the Collector, Ahmednagar and Assistant Director, Town Planning, Ahmednagar, with respect to the illegal work being carried out by Respondent No. 3. The Collector, Ahmednagar, then by his letter dated 6th December 1985 and 20th February 1986 and the Assistant Director of Town Planning, by his letter dated 3rd March 1986, called upon Respondent No. 2 to submit his explanation and report with respect to the illegal and unauthorised construction work of Respondent No. 3. The copies of these letters are filed on record.

10. In pursuance of the directions of the Collector, Ahmednagar, the Divisional Engineer, Rahuri, Shri.Deshpande, visited the site of the theatre on 31st March 1986 and inspected the work of construction. He submitted his report to the office of the Collector on 18th April 1986 along with the plan showing the dimensions of the old theatre and that of the new theatre building. In the said map, the old building is shown in yellow colour, while the new construction is shown in the red colour. All the details regarding changes being effected in the theatre are shown in the map and the report; and the map is produced on record. The Petitioners have contended that the sitting capacity of old theatre was only 500, but, in the new building, balcony is added and the sitting capacity of the new theatre is increased to 1150.

11. The Petitioners have contended that people were requesting Respondent No. 2 to take action against Respondent No. 3 with respect to unauthorised construction within the prohibited floodline area. But, Respondent No. 3, having very good political connections, could pursue the work of construction of theatre. The Petitioners have contended that in August 1986, Petitioner No. 1 proposed resolution in the meeting of the Municipal Council that action be taken against Respondent No. 3 as per the provisions of sections 52, 53, 54 and 55 of the M.R.T.P.Act with respect to the unauthorised construction and the resolution was passed by majority on 26th August 1986. However, inspite of this resolution, no action was taken by Respondent no. 2, the Chief Officer.

12. The Petitioners have contended that the construction of permanent cinema theatre by Respondent No. 3 in CTS No. 417 is patently illegal and unauthorised also under the Bombay Cinema (Regulation) Act, 1953 and the Maharashtra Cinema (Regulation) Rules 1966 (hereinafter referred respectively as, "the Cinema Regulation Act" and "the Cinema Regulation Rules"). The licensing authority under the Cinema Regulation Act cannot grant licence unless it is satisfied that the Cinema Regulation Rules have been substantially complied with and adequate precautions have been taken to provide for safety of the persons attending the cinema house. Under section 8 of the Cinema Regulation Act, the licensing authority can cancel or revoke the licence, if there is any contravention of the provisions of the Cinema Regulation Act and the Cinema Regulation Rules. The Petitioners have described the procedure, which is to be followed for the purpose of construction of a cinema house and for the purpose of obtaining licence for the same under the Cinema Regulation Act and the Cinema Regulation Rules. It is the contention of the Petitioners that all these statutory provisions have been observed in breach. Respondent No. 3 has not obtained the permission for construction of new cinema house as per the said provisions. Respondents Nos. 1 and 2, and even the Executive Engineer, B. & C., Sangamner Division, failed to take proper steps in this respect and, therefore, Respondent No. 3 was running his theatre. The Petitioners, therefore, have contended that Respondent No 3 could continue the construction of the new theatre building even till the date of filing of the petition.

13. During the pendency of this petition, Respondent No. 3 had filed an appeal before the State Government, because the Collector, Ahmednagar had refused licence to Respondent No. 3 to use the building as cinema theatre and that matter was pending. So, as per the order dated 6-1-1987, it was directed that the appeal be decided by the State Government, after giving hearing to the Petitioners, if the Petitioners apply for such hearing. The Petitioners accordingly applied for giving hearing to them. The Minister of State for Home heard both sides on 29th April 1987. The Minister, by his judgment, dated 9th July 1987, partly allowed the appeal. Copy of that judgment is placed on record of this petition. The Petitioners have also challenged this decision of the Minister by raising various pleas. The Petitioners have, therefore, prayed that Respondents Nos. 1 and 2 be directed by a writ of mandamus or any other appropriate writ to take action against Respondent No. 3 and also to demolish the illegal and unauthorised construction of the theatre. The order passed by the Minister on 9th July 1985 be quashed.

14. Respondent No. 3 has filed his affidavit in reply. He has contended that because of the political and business rivalry, this petition is filed and it is not a public interest litigation. It is the contention of Respondent No. 3 that Shri. Suresh Laxman Yeole owns a theatre by name, Sheetal, which was built in the year 1984 at Rahuri. He got elected to the Municipal Council in 1985 and he belongs to the rival political group. As Respondent No. 3 was making his theatre air cooled, Shri.Yeole was very much afraid that he will lose his business and, therefore, he has set up the two Petitioners to file this petition.

15. It is further contended that Respondent No. 3 duly submitted application and plans for the construction of the theatre before the Executive Engineer, B. & C., Sangamner, and he had informed that he wanted to renovate his theatre. It was not a proposal for mere repairs. This was done through the District Magistrate (Collector), Ahmednagar. The Executive Engineer approved the plans by his order dated 4th July 1984. He made application to the District Magistrate, Ahmednagar, on 6th August 1984 as per the provisions of rule 95 of the Cinema Regulations Rules for granting permission for the renovation. The Resident Deputy Collector thereafter conducted the inspection and submitted his report to the District Magistrate and then the permission was granted as per the letter dated 5th November 1984 from the office of the Collector, Ahmednagar.

16. Respondent No. 3 has further contended that he submitted application dated 18th October 1984 to Respondent No. 2 for permission to renovate the theatre. In the said application, he had pointed out that the plans have been approved by the B. & C. Department, Sangamner. However, Respondent No. 2 directed him to make an application in prescribed form under section 44 of the M.R.T.P. Act and as per Bye-law No. 4(1) of the Standardised Building Bye-laws and Development Control Rules for B and C class municipalities. Rahuri, being C class Municipality, these rules were made applicable to the Rahuri Municipal Council. So, on 26th October 1984, he filed application in prescribed form with Respondent No. 2. However, Respondent No. 2 by his letter dated 16th November 1984, with reference to his earlier application, informed that it was not necessary to obtain its permission. However, no reply was given with respect to the application dated 26th October 1984.

17. Respondent No. 3 has contended that as Respondent No. 2 is the Planning Authority under the M.R.T.P.Act and as no reply was received for more than two months to the said application dated 26th October 1984, under section 45(5) of the M.R.T.P.Act (as it then stood in the year 1984); and, under section 189(5) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the M.M.Act") it was presumed that he had got the permission from Respondent No. 2 to carry out the said renovation.

18. Respondent No. 3 has contended that he carried out the development strictly as per the plans and maps which came to be approved. Originally, permission was granted for built up area of 18,415.80 sq.fit. However, it became necessary to build verandah on the eastern and western sides in front of the third class of the auditorium on the ground floor for safety and convenience of public. Therefore, the built up area was increased to 19,533.95 sq.ft. and even for the said minor alteration, changed plans were submitted to the Executive Engineer, B. & C. Department, Sangamner on 7th July 1986 and the changed plan was approved for the development of the theatre having length of 170'9" and width of 69'3". The present built up area of the theatre is the same.

19. Respondent No. 3 has stated that various offices inspected the construction work on various dates as mentioned in paragraph 6 of the affidavit in reply. He has contended that he started the actual work in February 1985 and no officer from any department raised any objection. Respondent No. 3 has contended that he completed the said development work by spending nearly Rs. 20 lakhs. He raised loans from various financial institutions and completed the work of renovation and thereafter the Petitioners have come forward to challenge the same. The Petitioners and their instigator deliberately did not raise, any objection at any stage when the construction work was going on. They intend to inflict as much financial loss as possible on Respondent No. 3, and, therefore, they have filed the petition only after completion of the construction work. He has contended that even during the period when the renovation was going on, the films were exhibited in the theatre. Only at the time of construction of ceiling, exhibition was stopped on 5th May 1986 as per the order issued by the Executive Engineer, B. & C. Thus, the progress of construction work was not done secretly and everybody was fully aware of it.

20. Respondent No. 3 has contended that he got licence for the said theatre from 20th November 1947 and since then, the theatre is running for showing cinemas. Respondent No. 3 has contended that the sitting capacity is not raised to 1150 seats as alleged in the petition, but it is raised to 1024 seats as sanctioned by the concerned authorities.

21. Respondent No. 3 has contended that the Petitioners have raised the bogey of floodlines. The floodlines were created only for Rahuri and not for any other villages on the bank of River Mula. Those were created without making any survey by any department or by Respondent No. 2. At no time, any floods had occurred since he started the theatre in 1947. An application was made to Respondent No. 1 to cancel the said floodlines, because there was no chance or possibility of floods. Respondent No. 1 accepted this position in principle and promised to issue a proper notification to that effect. Copies of the concerned correspondence are filed on record by Respondent No. 3. He has further contended that objections were invited by Respondent No. 2 for deleting the said floodlines and a notification was published in the Maharashtra Government Gazette in its issue dated 1st December 1981. At that time, the Petitioners had not raised any objection. Respondent No. 3 has contended that, in view of this, the rules regarding floodlines were never implemented by Respondents Nos. 1 and 2 and those have been rendered obsolete for practical purposes. Respondent No. 3 has given list of various buildings which, according to Respondent No. 3, were constructed within the floodline of 1 lakh cusecs of water discharge even after 1981 and it is contended that even Respondent No. 2 has carried out such constructions.

22. It is further contended by Respondent No. 3 that Respondent No. 2 had given a notice for demolition of building constructed by Shri.Chattar within the floodline. Shri.Chattar filed a civil suit for injunction against Respondent No. 2, and, ultimately, the suit was compromised and Respondent No. 2 had accepted in the compromise that, in principle, the floodline had been removed. So, according to Respondent No. 3, in view of this situation, no objection can be raised to the construction of the theatre by Respondent No. 3 within the floodline area.

23. With respect to resolution passed by the Municipal Council in its meeting dated 27th August 1986, Respondent No. 3 has contended that it was a special meeting, that resolution was not on the agenda, but it was taken up by Shri.Yeole, the then President of the Municipal Council, by taking advantage of the fact that many councillors, belonging to the group of Respondent No. 3, were absent. The Chief Officer had pointed out that he was not having at hand any papers or information regarding the said theatre. Inspite of that, the resolution was adopted in the meeting. About 15 councillors out of the total 26 councillors, thereafter made a representation to the Collector, Ahmednagar, on 17th September 1986 pointing out all the true facts. Respondent No. 3 has contended that the resolution was revoked by the general body of Municipal Council in its meeting dated 12th September 1986 to the extent of theatre building of Respondent No. 3.

24. Respondent No. 3 has contended that Shri.Shaikh was a teacher in Vidya Mandir High School. Respondent No. 3 was the Secretary of the educational society running the said High School. There were certain allegations against Shri.Shaikh and, therefore, he was removed form service by Respondent No. 3. Because of this background, Shri.Shaikh made application to the Collector against Respondent No. 3 with respect to theatre. Respondent No. 3, therefore, has prayed that on taking into consideration all these facts, writ petition be dismissed.

25. Respondents Nos. 1, 2 and 4 have also filed their affidavits in reply.

26. The Petitioners, as well as the Respondents, have filed from time to time on record affidavits and various documents to bring on record the up-to-date situation as well as the maps, etc., submitted by Respondent No. 3 for seeking permission for renovation of his theatre and the maps drawn by the Government officers during the course of enquiry directed by the Collector, Ahmednagar.

27. First, it has to be seen whether any floodline is prescribed in the development plan of Rahuri town, as published under the provisions of the M.R.T.P.Act. The Petitioners have relied upon the Government Notification dated 16th December 1981, Exhibit C, page 25. Under this Notification, the Standardised Development Control Rules were adopted under section 37 of the M.R.T.P.Act and specific provision is also made for the modification of the development plan, which was originally notified in the Government Gazette dated 17th September 1976 and which had come into force with effect from 1st November 1976. The relevant portion of the Notification reads as follows :

"(1) No building shall be allowed to be constructed or reconstructed in the area falling within the floodline of 1,00,000 cusecs discharge as prescribed by the Executive Engineer, Irrigation and Power Department.

(2) Development in the area falling within the floodlines of 1,00,000 and 2,10,000 cusecs shall however be permitted, provided:

(a) plinth height is raised at least to R.L. of 1672 ft. and

(b) suitable approach to such construction is provided which shall also be above the H.F.L. i.e., R.L. 1672 ft."

(Underlining by us.)

The authentic map indicating the two floodlines is also produced and which clearly shows that CTS No. 417 falls within the floodline of 1 lakh cusecs of water discharge. Respondents Nos. 1, 2 and 4 have not disputed this position. Respondent No. 3 has not disputed the publication of the Notification and the demarcation of the two floodlines in the map along with the Notification. The only contention of Respondent No. 3 is that, though the floodline was prescribed, it was never practically brought into operation; and he has also taken a stand that the Government had agreed to remove the floodline.

28. In support of this contention, Respondent No. 3 is relying upon the letter written to the Secretary, Urban Development, by the President of Rahuri Municipal Council, which is dated 13th April 1978, which is filed on record; and the reply received thereto from the Under Secretary to Government, which is also filed on record at page 59. The letter of Under Secretary, inter alia, mentions that

"The proposal for cancelling the floodline and effecting minor modification to the development plan to that effect has been agreed to by the Government. However, the notification could not be issued because of absence of necessary plans. These plans are being got prepared through Assistant Director of Town Planning, Pune and immediately after obtaining the plans, the notification sanctioning minor modification will be issued."

29. However, it is very clear that no notification cancelling the floodline was ever issued by the Government. On the contrary, after this reply dated 6th April 1978, the only step which the Government took was to accept some minor modifications, that of including the Standardised Development Control Rules in the development plan of Rahuri Municipal Council and further by making specific provision for the floodlines, as mentioned in the Notification dated 16th December 1981. So, this letter dated 6th April 1978 cannot be considered to hold that the floodline was cancelled by the Government.

30. It is further seen that on 13th July 1979, the Under Secretary to the Government in Urban Development and Public Health Department addressed a letter to the Chief Officer, Municipal Council, Rahuri, and specifically informed that the proposal for cancelling the floodlines and effecting minor modifications to the development plan to that effect, which was accepted earlier vide letter dated 6th April 1978 had been reconsidered in consultation with the Irrigation Department and the Government had then decided that the floodlines should not be deleted. That letter is produced at page 92 by the Petitioners along with the affidavit in rejoinder. So, even the assurance which was given in the letter dated 6th April 1978 was reconsidered by the Government and it was decided that the floodlines should not be deleted, and, ultimately, the notification of the year 1981 was published wherein the specific provisions regarding the floodlines and rules for construction/reconstruction within the floodlines were provided.

31. In this connection, it is worth noting that Respondent No. 3 was personally aware regarding the existence of floodline and had refused permission for construction of building on that ground. Petitioner No. 1 has filed on record along with his affidavit dated 22.11.2000 a letter written by Respondent no. 3 on 2-7-1977 to the Superintendent of Post Offices, Ahmednagar Division, Ahmednagar, which is at page No. 134. Here, it is informed to the Superintendent of Post Offices, Ahmednagar, that the flood control line at Rahuri was not cancelled and, as such, the permission for construction of building could not be allowed within the flood zone. Only assurance was given that he would communicate, as soon as the floodline was cancelled and that the Municipal Council was trying for cancellation of flood zone.

32. Two things are borne out from all this. That the floodline was very well in existence even since prior to 1977 and the construction was prohibited within the flood zone. Respondent No. 3, who happened to be the President of the Municipal Council, personally was aware of all these things. So, by producing the concerned notification regarding the development of Rahuri town and the amendment effected in the development plan under section 37 of the M.R.T.P.Act, the Petitioners have proved that two floodlines were provided, one upto 1 lakh cusecs of water discharge; and another upto 2,10,000 cusecs of water discharge. No construction or reconstruction is permitted under the Bye-laws and Development Plan within floodline of 1 lakh cusecs of water discharge.

33. It is the contention of the Petitioners that Usha Chitra Mandir, belonging to Respondent No. 3, was situated within the floodline of 1 lakh cusecs of water discharge in CTS No. 417. It is not disputed by Respondent No. 3 that the theatre is situated in CTS No. 417 and, as the map clearly indicates and as the various admissions given by Respondent No. 3 indicate, that this particular theatre was situated within the floodline of 1 lakh cusecs of water discharge. So, in view of the Notification of 1981, no construction or reconstruction was permitted on CTS No. 417 and this aspect of the case is also sufficiently proved by the Petitioners.

34. The next question arises, as to whether Respondent No. 3 has constructed or reconstructed the theatre on CTS No. 417. It is admitted position that theatre was there since 1947 and Respondent No. 3 was having a valid licence to run the theatre under the provisions of the Cinema Regulation Act. The Petitioners have contended that undee the guise of repairs, Respondent No. 3 has constructed completely new building at that place. The Petitioners have contended that previously, the sitting capacity of Usha Chitra Mandir was only 500; it was a semi-permanent building of tins; there was no balcony to the theatre. However, the sitting capacity after reconstruction is increased to 1150 seats; balcony is added to the building. The original building was completely pulled down and new building was constructed.

35. This contention of the Petitioners is finding full support from the various documents produced on record by the Petitioners. There are reports and maps prepared after the inspection of the building, which show that the previous building was a very small building and a very spacious building is constructed on the same spot during the period from 1984 to 1986. Respondent No. 3 himself had submitted plans to the Executive Engineer, B. & C. Division, Sangamner, regarding the renovation he was to carry out. Those maps are produced on the record by Respondent No. 1 along with the affidavit, that of Deputy Engineer, P.W.D. Sub-Division, Rahuri, which is filed on record on 4-12-2000 because of the directions issued by this Court. In the affidavit, it is mentioned that the area of the existing building was 7553.42 sq.fit and the built up area as per the new plan proposed was 16,891.48 sq.ft. So, definitely, entirely new building was constructed by Respondent No. 3 as per the proposed plans submitted by him.

36. Respondent No. 1 has produced on record along with the affidavit the position with respect to the licence issued to Respondent No. 3 under the Cinema Regulation Act. The affidavit is that of Deputy Chitnis, Home Branch, Collectorate, Ahmednagar, filed on record on 29-11-2000, which indicates that, the original theatre was having the capacity of 500 seats and, after the construction of the building, the capacity has gone upto 1024 seats. So, all these documents coming from the Government officers clearly indicate that a new building was constructed by Respondent No. 3 on the site, where there was a small building of theatre.

37. The statements made by Respondent No. 3 in his own affidavit also clearly indicate that he constructed a new building at the place of the old building. In paragraph 6 of his affidavit at page 44, he has stated that as per the original plan submitted by him to the Executive Engineer, B. & C. Division, Sangamner, the total built up area was to be 18415.80 sq.ft. Then he submitted revised plan where the total built up area was 19,537.93 sq.fit. He has mentioned that the length of the building is 170'9" and width is 69'3". He has also stated that he spent Rs.20 lakhs for construction of this building. He has admitted that the sitting capacity is increased to 1024 seats. In such circumstances, there is no doubt Respondent No. 3 has constructed entirely new building on the place of the old building for his theatre. Respondent No. 3 calls it as renovation. Petitioners have contended that this is done under the guise of repairs. But it is neither renovation nor repairs, it is totally new construction. Merely by renovating the old building, the sitting capacity could not have increased to this extent. The balcony could not have been added because the length and width had to be increased for the purpose of increased sitting capacity.

38. So, it is well established by the Petitioners that Respondent No. 3 has constructed entirely new building on CTS No. 417 by demolishing the old building of Usha Chitra Mandir. On the basis of these facts, which are amply proved on record the rival contentions are to be considered.

39. The learned Counsel for Respondent No. 3 has argued that this petition involves adjudication of question of facts and, therefore, the petition under Article 226 of the Constitution is not maintainable. In support of this contention, he has relied upon the rulings of the Supreme Court in the matters of Jai Singh v. Union of India and others, reported in A.I.R. 1977 S.C. 898; D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn. and others, reported in A.I.R. 1976 S.C. 386; and G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and others, reported in 2000 AIR SCW 3883. However, in the present matter, there are no disputed questions of facts. The existence of floodline is established by a notification issued by the Government as per the provisions of the M.R.T.P.Act. The construction of new building of the theatre is practically admitted by Respondent No. 3 in his own affidavit. The rejection of the licence for running the theatre by the Collector, Ahmednagar, is brought on record and Respondent No. 3 filed an appeal against that order before the State Government and the appeal was partly allowed as per the decision given by the Minister of State for Home. Copy of that order is also produced on record. So, the principles laid down in the above quoted rulings of the Apex Court cannot be made applicable to the present case.

40. The learned Counsel for Respondent No. 3 has argued that this construction carried out by Respondent No. 3 cannot be called unauthorised construction. Respondent No. 3 made an application to the Collector as per the provisions of the Cinema Regulation Act. He submitted the plans regarding the construction to be carried out. The plans were forwarded to the Executive Engineer, B. & C. Department, Sangamner, from the office of the Collector. The Executive Engineer gave sanction to the plans as per his order dated 4-7-1984. Respondent No. 3 thereafter filed an application dated 18-10-1984 before the Chief Officer, Rahuri Municipal Council, seeking permission for renovation. A copy of that application is produced on record. Not only that, on 26-10-1984, he filed an application in the prescribed form as per the provisions of the M.R.T.P.Act and Rules framed thereunder before the Chief Officer, Municipal Council, Rahuri, and he submitted the maps along with the application. That application is also produced on record.

41. The Collector, Ahmednagar, by his letter dated 5-11-1984 gave permission to Respondent No. 3 for the renovation of the theatre putting certain conditions in that and it is at page 32. While the Chief Officer, Municipal Council, Rahuri, by his letter dated 6-11-1984 (copy of which is at page 31) informed the Respondent No. 3 that there was no need to seek permission as only internal repairs were being carried out.

42. The further contention of Respondent No. 3 is that he did not receive any reply to his application dated 26-10-1984 filed as per the provisions of section 44 of the M.R.T.P.Act read with rule No. 9 of the Rules within the period of 60 days and, therefore, he presumed that he got the permission for the construction as per the provisions of sub-section (5) of section 45 of the M.R.T.P.Act (as it then stood) and also under sub-section (6) of section 189 of the M.M.Act. In such circumstances, it cannot be said that it is an unauthorised construction.

43. The various documents produced on record by the Petitioners and the Respondents do indicate that Respondent No. 3 had applied to both the authorities, the Collector, as well as the Municipal Council; but the question is what is the effect of these applications and what is the effect of the so-called permission given, or, deemed permission.

44. From the letter dated 6-11-1984 sent by the Chief Officer, Municipal Council, to Respondent No. 3, it clearly appears that he took cognisance of the application dated 18-10-1984 only and informed Respondent No. 3 that as the original condition of existing building was not being changed and only internal repairs were to be carried out, no permission was required under the provisions of the M.R.T.P.Act and rule 4.2 of the Rules under the said Act. Respondent No. 3, therefore, cannot derive any advantage from this letter to say that he had obtained the permission from the Municipal Council.

45. The other stand taken by Respondent No. 3 is that he made a proper application in the prescribed form as per the copy filed on record. He had submitted plans and he was specifically seeking permission under section 44 of the M.R.T.P. Act read with rule 4 of the rules framed thereunder. This letter was not at all answered by Respondents Nos.1 and 2. He was not in receipt of any reply from Respondents Nos. 2 and 4 within the period of 60 days and, therefore, he presumed that he had such permission for construction.

46. In this respect, the factual aspect has to be considered with reference to the statement made by Respondent No. 3 in his affidavit and documents produced on record by him. In his affidavit in reply filed on 13th October 1986, in paragraph 7, he has stated that he started the actual work in February 1986 and here, he wants to take advantage of the provisions of section 45(5) of the M.R.T.P. Act that the work of construction shall be started after the expiry of the period of 60 days. However, this statement in the affidavit cannot be relied upon, because Respondent No. 3 has produced on record the representation made by him before the Collector on 2-9-1986 with respect to the resolution passed by the Municipal Council on 27th August 1986. This representation is on pages 60 to 63. Here, he has specifically mentioned that to complete the work within the period of two years as directed by the Director, he started the work on 1st December 1984 and by the date of 22nd September 1986, the work was completed. Again, he has mentioned in the same representation that, from 1-12-1984, no objection was raised with respect to the construction work. So, in this statement, Respondent No. 3 has specifically mentioned that the work of construction was started from 1-12-1984; that means, prior to expiry of the period of 60 days from 26-10-1984. In such circumstances, merely by relying on the statement of Respondent no. 3 in his affidavit, it cannot be held that the actual work of construction was started in February 1985, after the expiry of the period of 60 days. Respondent No. 3 is trying to mislead this Court. No reliance can be placed upon him.

47. When there was a resolution passed by the Municipal Council for demolition of the building of theatre constructed by Respondent No.3, Respondent No. 3 had moved the Collector for cancellation of that resolution as per the provisions of section 308 of the M.M.Act; and for that purpose, he had made the representation dated 2-9-1986. It was made at the earliest opportunity available. It was made with specific purpose to bring to the notice of the Collector that when actual work was going on, no objection was raised to the construction. Therefore, Respondent No. 3 was interested in showing how and when he started the construction. So, it can very well be held that the work of construction had started on 1st December 1984. Therefore, he cannot take advantage under the other provisions of section 45(5) of the M.R.T.P.Act (as it then stood) or the provisions of section 189(6) of the M.M.Act.

48. Another important aspect, which must be considered in this respect, is the legal position. Section 45(5) of the M.R.T.P.Act, as it then stood, read as follows :

" If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within days from the date of receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of sixty days."

While section 189(6) of the M.M.Act is as under :

" If the Chief Officer fails to issue an order under clause (c) or (d) of sub-section (4) within the period prescribed in that sub-section, the person giving notice under sub-section (2) shall, after the expiry of the said period, be entitled to proceed with the work in respect of which such notice has been given under sub-section (2), in the manner specified in such notice, provided that such manner is not inconsistent with any provision of this Act or any rule or by-law for the time being in force thereunder."

(Underlining ours.)

49. The provisions regarding control of building in Chapter XII of the M.M.Act are most relevant, because it is the duty of the Municipal Council that the buildings in municipal areas are being constructed as per the provisions of the Act, Rules and bye-laws. In supplementation to these provisions, the provisions of the M.R.T.P. Act are to be considered, because the development plan for Rahuri Municipal Council is prepared under the later Act. Neither of these two provisions can be read in isolation. These provisions must be considered as supplemental to each other, together with the Notification dated 16th December 1981.

50. The important portion of section 189(6) of the M.M.Act is the proviso, which reads :

"provided that such manner is not inconsistent with any provision of this Act or any rule or by-law for the time being in force thereunder."

The person making application for the development of the property, if, does not receive reply from the concerned authority within the period of 60 days, then he can presume that he has received the permission for development of the property; however, such development cannot be inconsistent with any provisions of the Act or any rule or bye-law. The 1981 Notification has modified the bye-laws for building construction by issuing the notification under section 37 of the M.R.T.P.Act and there is a clear provision that no construction or reconstruction will be permitted within the floodline of 1 lakh cusecs of water discharge.

51. Respondent No. 3 was fully aware that his construction on CTS No. 417 was within the floodline of 1 lakh cusecs of water discharge; and construction and/or reconstruction was not permitted there under the bye-laws. It is already pointed out above that Respondent No. 3 was personally aware of all these circumstances and, therefore, he has no reason to presume that deemed permission was there for the construction and/or reconstruction, because there was no reply within the period of 60 days from 26th October 1984. Even if it is held that Respondent no. 3 had started his construction in February 1985, as stated in his affidavit, that means, after the period of 60 days from 26-10-1984, he had no reason to believe that there was deemed permission and even if he had any such presumption, that could not be legal.

52. Here, it has to be noted that even if otherwise the plans submitted by Respondent No. 3 were proper as per the other rules and bye-laws regarding the buildings construction provided by the Municipal Council; or, for that matter, under the Cinema Regulation Act, the Municipal Council, Local Authority under the M.R.T.P.Act, had no jurisdiction to give sanction for construction or reconstruction because of the Notification of 1981. The matter, which was not within the jurisdiction of the Municipal Council, cannot be considered within its jurisdiction by taking advantage of section 45(5) of the M.R.T.P.Act, or, section 189(6) of the M.M.Act, as "deemed permission". To presume that there was deemed permission, there must be first authority to grant permission. As the Municipal Council had no such authority, there cannot be any presumption of deemed permission.

53. In this respect, the learned Counsel for the Petitioners has relied upon the ruling of the Apex Court in the matter of K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and others, reported in A.I.R. 1974 S.C. 2177. In the said matter, permission was sought for construction of cinema theatre and the Municipal Council had granted the permission by passing various resolutions. In the writ petition filed under Article 226 of the Constitution before the Mysore High Court, all resolutions, except one, were quashed and then the matter had gone in appeal before the Supreme Court with respect to that resolution, which was not quashed by the High Court. While considering the powers of municipality for passing that resolution, the Apex Court has observed in paragraph 27 thus:

" . . . The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. . . ."

In the said matter, there was a scheme for development of the town and in contravention of the provisions of the scheme, the Municipal Council had passed resolution granting permission for construction of cinema theatre. So, it was held by the Supreme Court that such a resolution, which contravenes the bye-law, has to be struck down. If that is the position with express permission granted by the Municipal Council, the same position will obtain if there is deemed permission. The Municipal Council had no authority to grant permission to construct a theatre in the floodline, or, cannot allow that to be constructed by avoiding to record its refusal within the period of 60 days. So, it is very clear that Respondent No. 3 cannot claim that he had deemed permission for construction of the theatre, and, therefore, the construction is legal and authorised.

54. It has also to be seen whether any licence could be issued to Respondent No. 3 for running the theatre in the said building as per the provisions of the Cinema Regulation Act. Section 5(1) is the relevant section of that Act and it provides as follows :

" The licensing authority shall not grant a licence under this Act unless it is satisfied that -

(a) the rules made under this Act have been substantially complied with; and

(b) adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibition therein."

The restrictions are placed on the licensing authority by this section. It is utmost necessary for the licensing authority to see that the safety of persons attending the exhibition is cared for. If the building, which is being used as cinema theatre is not safe, then no licence can be granted; and exactly, this aspect is lost sight of by the Minister, while passing the order partly allowing the appeal of Respondent No. 3. If the theatre is situated within the floodline of 1 lakh cusecs of water discharge and when there is a specific notification under section 37 of the M.R.T.P.Act prohibiting construction in that area, then the Minister in Home Department had basically no jurisdiction to grant licence under the Cinema Regulation Act. The matter was well within the scope of Urban Development and Public Health Department, which had issued the Notification and which was the authority to decide whether the construction of a building in that area would be safe or not. Already the Government had taken the decision that it would be unsafe to allow construction of any building in that area. So, while acting under the provisions of the Cinema Regulation Act, the Home Department could not have transgressed its jurisdiction. The Collector, Ahmednagar, had taken the right decision of not allowing the cinema licence to Respondent No. 3 in this building.

55. It is not the case that the existence of floodline was not brought to the notice of the Minister. The copy of judgment, which is on pages 39A to 39F, does indicate that this aspect was argued before him and he took the view that the theatre was already there since 1947 and Respondent No. 3 had made reconstruction in place of existing construction only. So, the restrictions of the floodline cannot be made applicable.

56. However, it is clearly pointed out above that as per the admissions given by Respondent No. 3, he had not only reconstructed the original building, but he had constructed entirely new building. The notification of 1981 prohibits even the reconstruction of the old building. So, it was not correct on the part of the Minister to hold that the restrictions of floodline were not applicable.

57. The learned Counsel for the Petitioners has also assailed the judgment of the Minister, contending that it was wrong on the part of the Minister to hold that in view of Rule No. 136 of the Cinema Regulation Rules, the Rules in Chapter VI were not applicable. Rules in Chapter VI pertain to permission for building a cinema and these Rules from Rule No. 87 to 98 make various provisions regarding grant of permission for construction of cinema theatre. It is worth noting that Respondent No. 3 himself had filed an application for approval of the building by resorting to the provisions of Chapter VI of the Cinema Regulation Rules. He had not taken the stand that those rules were not applicable. On the contrary, his stand is that he made an application as per these rules in Chapter VI; he got the approval to the plans from the Executive Engineer, B. & C. Department, Sangamner; and then only, he carried out the construction. So, when Respondent No. 3 was relying on those rules to show that his construction was authorised, it was necessary to find out whether the rules were properly complied with or not. If because of the provisions of Rule 136, those rules are not to be taken into consideration, then, the very basis of the case of Respondent No. 3 is lost.

58. Otherwise also, it is worthy to note the provisions of rule 136 of the Cinema Regulation Rules, which reads as follows :

" The provisions of Chapters II and VI shall not apply to premises duly constructed for cinematograph exhibition before coming into force of these rules, if such premises have been constructed in accordance with the provisions of the rules in force when such premises were constructed."

This rule cannot be read to hold that, if any new building is being constructed in place of the old building, the rules in Chapter VI will not be applicable. It clearly mentions that the rules in Chapter VI will not apply to the premises duly constructed for cinematograph exhibition before coming into force of these rules. So, if the building is there, and a licence was issued to exhibit cinema in that building, prior to commencement of these rules, then the licence cannot be revoked or cancelled merely because the building is not as per the rules prescribed under Chapter VI. However, if the building is to be reconstructed, renovated or any new building is to be constructed, then, definitely, Chapter VI would be applicable. If Respondent No. 3 was to continue his theatre in the same building, then there was no reason for him to make any application for approval of the authorities for the new building. Respondent No. 3 was constructing the new building. Only thing is that on the same plot of land, he was constructing the new building, but the circumstances clearly show that he had demolished the old building and had reconstructed the new building, and, therefore, the provisions of rule 136 of the Cinema Regulation Rules cannot be made applicable. The provisions of Chapter VI will come into play and the new building or reconstructed building must conform to the provisions of Chapter VI.

59. Here, Rule 91 of the Cinema Regulation Rules is relevant, which reads as under :

" Permission to build.-

After the plans are finally approved by the Executive Engineer/Assistant Engineer/Deputy Engineer/Sub-Divisional Officer and the Municipal Authority concerned the licensing authority may grant permission in writing to the applicant to put up the cinema in accordance with the plans finally approved, provided the permission granted under these Rules does not dispense with the necessity of obtaining the requisite sanction under the Municipal Acts or any other law for the time being in force." (Underlining ours.)

The underlined portion is very much important. So, even if the Executive Engineer has approved the plans, there must be a valid permission from the Municipal Council as per the provisions of the M.M.Act and as per the provisions of the M.R.T.P.Act.

60. It is already pointed out above that there was no valid permission from the Municipal Council for the said building under either of the Acts. In such circumstances, granting licence to run cinema theatre in that building was not legal and proper. The role which is to be played by the authorities under the Cinema regulation Act, commences only after there is the valid permission from the Municipal Council and not before that or not by overriding the authority of the Municipal Council. The scope of granting licence or refusing licence is restricted to the provisions of the Cinema Regulation Act and the Cinema Regulation Rules. Here, by granting licence to run the cinema in the building without paying attention to the provisions of the M.M.Act and the M.R.T.P.Act is definitely in excess of the jurisdiction vested in the authorities under the Cinema Regulation Act.

61. Respondent No. 3 in such circumstances cannot contend that as the appeal is allowed by the Government, he is entitled to run the theatre in the said building. The decision given by the Minister of State for Home was beyond his jurisdiction.

62. One more provision has to be considered in this respect. Section 156 of the M.R.T.P.Act provides as follows :

" Notwithstanding anything contained in any law for the time being in force-

(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."

It is already pointed out that the stand taken by Respondent No. 3 that there was deemed permission under section 45(5) of the M.R.T.P.Act is not tenable. He could not have obtained the permission for construction of the theatre, because it was not within the powers of the authority under the M.R.T.P.Act or the M.M.Act to grant him permission to construct or reconstruct the theatre in the floodline of 1 lakh cusecs of water discharge. So, there was no reason for him to presume deemed permission. In such circumstances, if any permission is obtained by Respondent No. 3 under the provisions of the Cinema Regulation Act, it cannot be valid permission because of the provisions of section 156 of the M.R.T.P.Act. From this point of view also, Respondent No. 3 cannot claim that the construction is authorised construction.

63. Respondent No. 3 has also taken stand that this writ petition has come up because of his business rivalry with Shri.Suresh Laxman Yeole. According to Respondent No. 3, Shri.Yeole was having his theatre in Rahuri town. Respondent No. 3's theatre was being made air cooled and that would have caused loss of business to Shri.Yeole, who also happened to be his political, rival and so, at his instance, the Petitioners have filed this writ petition.

64. By filing affidavit in rejoinder, the Petitioners have denied that they are instigated by Shri.Yeole to file this writ petition. Petitioner No. 1 was an independent Municipal Councillor, as made clear by him in his original petition and also in rejoinder; while Petitioner No. 2 is the resident of Rahuri town. There is nothing on record to indicate that they were instigated by Shri.Yeole to file this writ petition. It is worth noting that even after passing of the resolution for demolition of the theatre of Respondent No. 3 when Shri.Yeole happened to be the President of the Municipal Council, no further effective steps were taken by the Municipal Council for demolition of the theatre. So, this circumstance also indicates that the petition is not filed at the instance of Shri.Yeole.

65. It has also to be noted that when Respondent No. 3 filed his appeal against the order of the Collector before the State Government, Shri.Yeole, or, for that matter, the Municipal Council did not appear before the Government to contest the appeal. That circumstance also indicates that only the present Petitioners on their own have filed this petition and not at the instigation of Shri.Yeole. In such circumstances, we do not find any substance in the contention of Respondent No. 3 that because of the business rivalry, this petition is filed at the instance of Shri.Yeole.

66. It is also being contended by Respondent No. 3 that there are other buildings constructed within the floodline of 1 lakh cusecs of water discharge, not only by some persons from Rahuri, but even by the Municipal Council, Rahuri. However, that cannot be a ground to say that the construction made by Respondent No. 3 is legal and authorised construction. If there are any such constructions, then Respondents Nos.1, 2 and 4 will have to take steps as per the provisions of the M.R.T.P.Act and the M.M.Act.

67. However, sofar as the present matter is concerned, it has to be held that the construction of theatre by Respondent No. 3 in CTS No. 417 is within the prohibited area. He had no authority to construct such theatre. He has faulted the provisions of the M.R.T.P.Act and the M.M.Act. There was no valid permission for construction of the theatre. No permission could have been granted for construction of the theatre by the Municipal Council, Rahuri. Furthermore, even taking into consideration the provisions of section 5(b) of the Cinema Regulation Act, no licence can be issued for having a cinema theatre in that building, because it is not safe place to have cinema theatre. In such circumstance, the licence has to be revoked. So also, the building has to be demolished.

68. The learned Counsel for Respondent No. 3 has argued that this floodline is only imaginary line. No proper survey was made before drawing the floodline. There were no floods since 1947 in the area, where the floodline is provided for; and in such circumstances, merely on technicalities, the reliefs sought in the writ petition should not be allowed. However, we do not agree with this argument. It is amply brought on record that the concerned authorities had taken the survey, especially by the Engineers of the Irrigation Department. The Government also considered the matter on every aspect; and though at one stage, the Government was thinking of removing the floodlines, after reconsideration of the entire matter, decided to retain the floodlines and then the Notification of 1981 was issued. It is a precautionary measure taken by the Government for the safety of the residents of Rahuri town. There were no floods in the past, that does not mean that the precautionary measures be thrown to winds. The construction is unauthorised construction and it has to be treated like that.

69. The learned Counsel for Respondent No. 3 has also argued that Respondent No. 3 has spent more than Rs. 20 lakhs for the construction of the building. It is the only source of livelihood of Respondent No. 3 and now his legal representatives. If the building is demolished they will lose the source of livelihood. However, these are also not matters to be considered, once it is held that the construction is unauthorised construction. Respondent No. 3, who was personally aware that the construction was not permitted within the floodline, not only went ahead with the construction by spending large amount, but used his political pressure to obtain necessary approval from the Government officers and even from the Minister. So, this is not a case where the matter can be considered to have a sympathetic view.

70. The Apex Court in the matter of M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, reported in (1999) 6 S.C.C. 464 has observed in paragraph 73 as under (page 529 of the Cases):

" The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."

In view of this principle laid down by the Apex Court while dealing with the unauthorised construction, it has to be directed that the building constructed by Respondent No. 3 on CTS No. 417 at Rahuri for theatre, Usha Chitra Mandir, shall be demolished.

71. Hence, Respondents Nos. 1, 2 and 4 are directed to take appropriate steps for demolition of the building. Respondent No. 1 is also directed to revoke the licence issued for Usha Chitra Mandir under the Bombay Cinemas (Regulation) Act.

72. Writ Petition is allowed. Rule made absolute in terms of prayer clauses (a) and (aa) of the Writ Petition. No order as to costs.

73. Upon declaration of the Judgment, learned Counsel for Respondent No. 3 states that, at least four weeks time be granted to Respondent No. 3 to move the Supreme Court in this respect. Considering all the circumstances, it is directed that sofar as direction regarding demolition of the theatre is concerned, it be not carried out for a period of four weeks from today.

Petition allowed.