Court disposed of a writ petition challenging a Municipal Corporation resolution to allocate shops and vegetable market space in the basement. Court held that Development Control Rules prohibit basement usage except for parking and noted the Corporation had clarified no basement allocation is intended.
No costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
904.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
904 WRIT PETITION NO. 5750 OF 2016
VASANT BISANDAS GUGALE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Ms P. S. Talekar i/by Talekar and
Associates
AGP for Respondent No.1 State:Mrs. S. S. Raut
Advocate for Respondents 2 and 3 :Mr. V. S. Bedre
CORAM: S. V. GANGAPURWALA &
K. L. WADANE, JJ.
DATE:22nd November, 2016
ORDER:
1. The petitioners assailed the Resolution dated
20th February, 2016 passed by the Standing Committee,
Ahmednagar Municipal Corporation on the count that
under the said Resolution, the shops and vegetable
stalls are provided on lower ground floor i.e. Basement
area. Consequently, the petitioners also assail the
tender notice.
2. Ms. Talekar, the learned counsel for the
petitioners, strenuously contends that under the order
of this Court in Writ Petition bearing No.4611/2007
with connected writ petitions, decided vide order dated
10.07.2008, this Court had recorded the undertaking
given by the corporation to the effect that the
Corporation would provide alternate accommodation in
1/4
904.odt
the shopping complex in accordance with resolution
passed by the Corporation and that the petitioner would
be given priority in allotment of shops and the space
in the vegetable market. According to the learned
counsel, the respondents have taken up construction
activities for the purpose of vegetable market and
commercial activities. The resolution came to be passed
by the Standing Committee on or about 20.02.2016. As
per the said resolution, the respondents are intending
to provide space for vegetable market in the basement.
The same is against the Development Control Rules.
The basement can only be used for parking purposes and
for no other purposes. The said resolution is against
the letters and spirit of the Development Control
Rules. The learned counsel further submits that even
the cost which is being determined is on much higher
side. The decision to allot the space for the
vegetable market and shops in the basement being
illegal, the said resolution deserves to be set aside.
3. Mr. Bedre, the learned counsel for the
Corporation submits that the affidavit has been filed
by the Corporation in connected PIL No. 75/2016,
wherein it has been clarified that the construction
permission would be accorded in conformity with the
2/4
904.odt
Development Control Rules as applicable and the space
for the vegetable market and the shops would not be
allotted in the basement area. According to the
learned counsel, even the cost which has been agreed to
be accepted from the persons who would be allotted
space for the vegetable market and the shops is on the
lower side. The work of construction is allotted on FBT
basis. The builder/developer would submit the plan and
the same would be considered for approval in accordance
with the provisions of Development Control Rules.
4. We have considered the submissions canvassed by
the learned counsel for the respective parties.
5. The grievance of the petitioners appears to be
that the space for the vegetable market and the shops
would be allotted in the basement. It has been
clarified by the Corporation in the affidavit that no
space for vegetable market or shop shall be provided
in the basement. The said affidavit is also filed on
record. It is needless to state that the plan for
permission can only be sanctioned in accordance with
the provisions of the Maharashtra Regional Town
Planning Act and Development Control Rules as
applicable on the given date. Even the Corporation
3/4
904.odt
would not be entitled to deviate from the applicability
of the provisions of the Development Control Rules. No
activity is permissible in the basement area except
the one detailed in the Development Control Rules, as
applicable.
6. Considering the above, the grievance of the
petitioner that they would be accommodated in the
basement would not survive, more particularly in view
of the affidavit filed on record so also the aforesaid
observations that the Corporation would be bound by
the provisions of the Development Control Rules and
also the provisions of the Maharashtra Regional and
Town Planning Act, the Provincial Municipal Corporation
Act so also the regulation under notification dated
20th September, 2016, while sanctioning the plan for
construction. As far as the cost of construction is
concerned, the experts body would determine the same.
It would not be possible for the Court to dwell into
the said aspect. With these observations, the writ
petition is disposed of. No costs.
JPC
4/4
3 issues framed by the court
Whether allotment of shops and vegetable market space in the basement area violates Development Control Rules.
Whether the Municipal Corporation is entitled to deviate from Development Control Rules and Regional Town Planning Act.
Whether the grievance regarding accommodation in the basement survives in light of the Corporation's affidavit.
Colour shows how this judgement treated each authority
connected writ petitionsReferred¶16
Writ Petition bearing No.4611/2007 with connected writ petitions, decided vide order dated 10.07.2008
4 provisions across 4 enactments
Vasant Bisandas Gugale
Another
The State of Maharashtra
Ahmednagar Municipal Corporation
S. V. Gangapurwala
K. L. Wadane
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court