Remanded

Mr. Malik Ibrahim Shaikh and Ors. v. the State of Maharashtra and Ors.

Bombay HC15 Apr 2015WP/3125/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Municipal Corporation's regularization of a petty shop. The Court found FSI limits were validly met and maintenance of drainage lines feasible but reserved direction for the Municipal Commissioner to examine procedural non-compliance with specific Municipal Corporation Act rules.

What did the court decide?

The petition is disposed of; the issue of non-compliance with specific Municipal Corporation Act rules is kept open and remanded to the Commissioner for appropriate action within three months.

Dr.Ramdas Sabban for the petitioners Mr.V.S.Gokhale, AGP for the respondent No.1 Mr.Gautam Kanchanpurkar for respondent No.5 Mr.R.S.Alange for respondent Nos.2 and 3 Mr.S.G.Deshmukh I/B Mr.A.J.Kandarkar for respondent No.4

1Heard the learned counsel for the petitioners and the learned counsel for the concerned respondents. The challenge in this petition is essentially to the construction of a petty shop which is more particularly described in the petition. The objections raised by the learned counsel for the petitioners are basically three fold. The first objection is that the construction of the petty shop is made without obtaining permission of the competent authority and after giving a notice of demolition, the Solapur Municipal Corporation cannot purport to regularise the same. The second contention is that the so called regularization of the said shop is illegal as the maximum permissible Floor Space Index (for short

`FSI') of 2.00 was already consumed and that the FSI consumed in the petty shop is not covered by the available FSI. Thirdly, it is submitted that as per the Rules 1 and 2 of Chapter IX of the Schedule to the Maharashtra Municipal Corporations Act,1949, the erection of the petty shop could not have been made on a drainage line without prior permission of the Municipal Commissioner. He submitted that the plan dated 5th January 2011 which is relied upon is not sanctioned by the Municipal Corporation.

2We have perused the additional affidavit filed by Shri Balu Bhanudas Bhosale on behalf of the Solapur Municipal Corporation. Shri Bhosale is at present working as a Junior Engineer in the Building Permission Department. In paragraphs 3,4 and 5 of the affidavit he has given a break up of the FSI. He has stated that FSI of 2.00 was fully consumed while granting the building permission No.573 dated 9th June 1988. He has further stated that for regularising the petty shop, as per the Regulation No.33.2 of the Development Control Regulation, for the area of a passage (2.45 X 2.13 meters), premium was charged and revised building permission was issued bearing No.1574 dated 5th January 2011. Therefore, we find no merit in the contention of the learned counsel for the petitioners that by allowing regularization of the petty shop, maximum permissible FSI of 2.00 was allowed to be exceeded.

4As far as the contention regarding covering of the drainage line is concerned, in the paragraph 2 of the affidavit, Shri Bhosale has stated that some part of the drainage line is below the petty shop. He has however stated that the chamber of the drainage line is outside the petty shop and, therefore, cleaning and maintenance of the drainage line is possible.

6Hence, there is no reason to entertain this petition filed under Article 226 of the Constitution of India. The learned counsel for the petitioner tried to make a grievance regarding non availability of proper access due to construction of the petty shop. The said contention cannot gone into in this Writ Petition. If the petitioners have any right of way, they will have to establish their right by approaching the appropriate forum.

7However, the issue of non compliance with the Rules 1 and 2 of Chapter IX of the Schedule to the said Act of 1949 is kept open. The Commissioner of the Solapur Municipal Corporation shall look into the said aspect and pass an appropriate order in

Mr. Malik Ibrahim Shaikh and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Mr. Malik Ibrahim Shaikh and Ors. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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