Case Note & Summary
The petitioners, owners of land in Alibag, sought non-agricultural (NA) permission and permission for industrial construction. They obtained various no-objection certificates and, on 12.4.1997, the Collector granted NA permission subject to conditions, including that the building plan be prepared as per Annexure II of the Maharashtra Land Revenue (Change in Utilisation of Land and N.A. Charges) Rules, 1969, and that sanction be obtained from the Collector before starting construction. The petitioners claimed they had submitted the plan with their NA application and that the Collector had approved it, thus no further sanction was needed. Subsequently, the Tahsildar issued a notice dated 31.1.1998 stating the construction was without permission, the Collector passed an order dated 27.2.1998 reiterating the lack of sanction, and a further notice dated 12.3.1998 was issued alleging non-compliance. The property was sealed. An interim order of the court directed removal of the seal but restrained the petitioners from further development. The petitioners filed the writ petition challenging these orders. The respondents contended that the construction was illegal as no separate prior sanction had been obtained from the Collector, and that an alternate remedy of appeal was available. The court noted that the petition had been admitted after the respondents had filed their reply and without liberty to re-raise the alternate remedy plea; thus, that plea could not be entertained at final hearing. On merits, the court held that the grant of NA permission implied that the authorities had satisfied themselves regarding the building line and control line as required under Annexure II. Since the building plan was already submitted and approved with the NA permission, the condition of obtaining prior sanction was fulfilled, and requiring a fresh application would be an empty formality. Consequently, the impugned orders were without jurisdiction and were quashed. The court clarified that if the petitioners had constructed on any area other than that for which NA permission was granted, the respondents could take appropriate legal steps. The petition was allowed in terms of the prayers for quashing the orders.
Headnote
A) Writ Jurisdiction - Alternate Remedy - Waiver at Final Hearing - High Court of Judicature at Bombay - Once a writ petition is admitted and the respondents have been heard and no liberty is reserved to re-agitate the issue of alternate remedy, it is not open to the respondents to raise that plea at final hearing without leave of the court; the court can exercise extraordinary jurisdiction where orders are patently illegal or to secure interests of justice. Held that the plea of alternate remedy was not available to the respondents. (Para 5) B) Land Laws - Non-Agricultural Permission and Construction Sanction - Implied Approval of Building Plan - Maharashtra Land Revenue (Change in Utilisation of Land and N.A. Charges) Rules, 1969, Annexure II - When NA permission is granted by the Collector and the building plan is submitted and approved as part of that proceeding, the condition of obtaining separate prior sanction for construction stands satisfied; the approval implies compliance with Annexure II regarding building line and control line. Requiring a fresh application would be an empty formality. Held that the impugned orders were without jurisdiction and were quashed. (Paras 6-7)
Issue of Consideration
Whether the petitioners were required to obtain a fresh construction sanction from the Collector when the building plan had been submitted and approved at the time of grant of NA permission under the Maharashtra Land Revenue (Change in Utilisation of Land and N.A. Charges) Rules, 1969.
Final Decision
Petition made absolute in terms of prayer clauses (a) and (b) subject to the clarification that if petitioners had constructed on area other than that for which NA permission was granted, respondents could take steps in law. The impugned orders were quashed.
Law Points
- Once NA permission granted with plan approval
- no separate construction sanction required
- alternate remedy plea waived if not raised at admission
- court can exercise writ jurisdiction in fit cases
- compliance with Annexure II of Maharashtra Land Revenue (Change in Utilisation of Land and N.A. Charges) Rules
- 1969 implied by NA permission
