WRIT PETITION NO. 3176 OF 2004

11th July 2019

Petitioner Counsel:
Respondent Counsel: Shri A. M. Kadukar Shri A. C. Dharmadhikari
Act Name: Maharashtra Regional Town Planning Act, 1966

Section :
Section 45 Maharashtra Regional Town Planning Act, 1966 Section 47 Maharashtra Regional Town Planning Act, 1966

Cases Cited :
Paras 4, 5: Sangli Miraj and Kupwad City Municipal Corporation Vs. Balkrishna Haribhau Sawant and others, reported in AIR 1999 Bom. 390

JUDGEMENT

SUNIL B. SHUKRE, J.

1. Heard learned A.G.P. for respondent no. 1 and 2 and Shri Dharmadhikari, learned counsel for respondent no. 5 to 7. Nobody present for the petitioner and respondent no. 3 and 4.

2. The main grievance raised in this petition is that respondent no. 2 had no authority to entertain any appeal under Section 47 of Maharashtra Regional Town Planning Act, 1966 (in short MRTP Act).

3. It is seen from the ground taken in the petition that the petitioners have challenged the impugned order on the ground of bar of limitation and absence of locus-standi on the part of respondent no. 5 to 7 who had filed the appeal under Section 47 of MRTP Act. This has been opposed by learned A.G.P. for respondent no. 1 and 2 and Shri Dharmadhikari, learned counsel for respondent no. 5 to 7.

4. It is the contention of the petitioners that appeal in the present case had been filed after lapse of more than an year from the grant of occupancy certificate and building permit, and therefore, as held by this Court in Sangli Miraj and Kupwad City Municipal Corporation Vs. Balkrishna Haribhau Sawant and others, reported in AIR 1999 Bom. 390 appeal could not have been entertained by the respondent no. 2. No written reply to the submission has been filed by any of the respondents. We, therefore, find no difficulty in accepting the contention that the appeal in the present case had been filed after lapse of stipulated period of 40 days. Section 47 of MRTP Act requires that appeal be filed within 40 days from the date of communication of order to the aggrieved person. As none of the respondents has submitted anything about the date on which communication of the order was made, we have to accept the contention of the petitioner that appeal so filed by the respondent no. 5 to 7 was barred by limitation.

5. The view taken in the case of Sangli Miraj and Kupwad City Municipal Corporation (supra) is that the appeal under Section 47 of the MRTP Act can be entertained only within a period of 40 days and not beyond the said period. In the light of this decision, we find that there is substance in this petition and it deserves to be allowed.

6. There is also another angle in this petition, which is about the meaning of expression “any applicant aggrieved by an order granting permission” used in Section 47 of MRTP Act. Apparently, the section shows that right of appeal has been conferred only upon person aggrieved by an order granting permission on conditions or refusing permission under Section 45 of MRTP Act and Section 45 does not speak of any stranger to the property or third person in respect of property regarding which the conditional permission has been granted or permission has been refused under Section 45 of MRTP Act. So, we find that the impugned order can not sustain itself in the eye of law.

7. Writ Petition is allowed and impugned order is quashed and set aside. Rule is made absolute accordingly. No costs.