Case Note & Summary
The petitioner, Al Waffi Agro Food Company, a firm engaged in meat supply and export, purchased land admeasuring about 17131.40 sq. mtrs at Village Babulkheda, Tahsil Balapur, Dist. Akola with the intent to start a modern slaughter house. The petitioner submitted an application under Section 44 of the Maharashtra Regional and Town Planning Act, 1966 seeking development permission to the Municipal Council Balapur (respondent no. 3). The Municipal Council referred the proposal to the Town Planning and Assessment Department, which recommended granting permission for construction of a unit for preservation of meat, canning, processing of meat and similar foods. However, the respondent no. 5, a private person, filed an application under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 before the Municipal Council objecting to the grant of permission. The Municipal Council, by order dated 18/06/2018, rejected the petitioner's development permission application based on the objections raised by respondent no. 5. The petitioner challenged this order by way of a writ petition. The legal issue was whether after the promulgation of the Maharashtra Ordinance No. 04/2018 on 25/01/2018, an application under Section 308 of the Act at the behest of a private person is maintainable. The court noted that the Ordinance amended Section 308 to provide that only the Municipal Council or an officer authorized by it can make an application for removal of unauthorized construction or nuisance. The court held that the Ordinance has retrospective effect and applies to pending proceedings. Consequently, the application filed by respondent no. 5, a private person, was not maintainable. The court allowed the petition, set aside the order of the Municipal Council dated 18/06/2018, and directed the Municipal Council to reconsider the petitioner's development permission application afresh in accordance with law, without being influenced by the objections of respondent no. 5.
Headnote
A) Municipal Law - Section 308 - Maintainability of Application by Private Person - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, Section 308 - The court considered whether after the Maharashtra Ordinance No. 04/2018 dated 25/01/2018, a private person can maintain an application under Section 308 of the Act. The court held that the Ordinance amended Section 308 to restrict the right to apply only to the Municipal Council or its authorized officer, and thus an application by a private person is not maintainable. (Paras 3-5)
Issue of Consideration
Whether, after promulgation of the Maharashtra Ordinance No. 04/2018 on 25/01/2018, an application under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 at the behest of a private person is maintainable.
Final Decision
The court allowed the writ petition, set aside the order of the Municipal Council dated 18/06/2018, and directed the Municipal Council to reconsider the petitioner's development permission application afresh in accordance with law, without being influenced by the objections of respondent no. 5.
Law Points
- Statutory interpretation
- Retrospective effect of ordinance
- Maintainability of application under Section 308
- Locus standi of private person
Case Details
2018 LawText (BOM) (12) 133
Writ Petition No. 4385/2018
Shri S.P. Bhandarkar, Shri S.Y. Deopujari, Shri R.J. Tople, Ms. S. Thakur, Shri M.P. Khajanchi
Al Waffi Agro Food Company
The State of Maharashtra, The District Collector, Akola, The Municipal Council Balapur, The Maharashtra Pollution (Water) Control Board, Shri Bhushan S/o Pradip Pimpalgaonkar
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Nature of Litigation
Writ petition challenging the order of the Municipal Council rejecting development permission application based on objections raised by a private person under Section 308 of the Maharashtra Municipal Councils Act.
Remedy Sought
The petitioner sought quashing of the Municipal Council's order dated 18/06/2018 rejecting its development permission application and a direction to reconsider the application.
Filing Reason
The Municipal Council rejected the petitioner's development permission application for a slaughter house based on objections filed by respondent no. 5 under Section 308 of the Act.
Previous Decisions
The Municipal Council by order dated 18/06/2018 rejected the petitioner's development permission application.
Issues
Whether after the Maharashtra Ordinance No. 04/2018, an application under Section 308 of the Act by a private person is maintainable.
Submissions/Arguments
The petitioner argued that the Ordinance No. 04/2018 amended Section 308 to restrict the right to apply only to the Municipal Council or its authorized officer, and thus the application by respondent no. 5 was not maintainable.
The respondent no. 5 argued that the Ordinance does not have retrospective effect and the application was filed before the Ordinance came into force.
Ratio Decidendi
The Maharashtra Ordinance No. 04/2018 amended Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 to provide that only the Municipal Council or an officer authorized by it can make an application for removal of unauthorized construction or nuisance. The Ordinance has retrospective effect and applies to pending proceedings. Therefore, an application under Section 308 at the behest of a private person is not maintainable.
Judgment Excerpts
The point which arises for consideration in this petition is: 'Whether, after promulgation of the Maharashtra Ordinance No. 04/2018 on 25/01/2018, an application under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 at the behest of a private person is maintainable.'
The Ordinance No. 04/2018 amended Section 308 of the Act of 1965 and the amended provision provides that an application under Section 308 can be made only by the Municipal Council or an officer authorized by it.
Procedural History
The petitioner submitted an application under Section 44 of the Maharashtra Regional and Town Planning Act, 1966 for development permission to the Municipal Council. The Municipal Council referred the proposal to the Town Planning Department which recommended granting permission. Respondent no. 5, a private person, filed an application under Section 308 of the Maharashtra Municipal Councils Act objecting to the grant of permission. The Municipal Council by order dated 18/06/2018 rejected the petitioner's development permission application based on the objections. The petitioner filed the present writ petition challenging that order.
Acts & Sections
- Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965: Section 308
- Maharashtra Regional and Town Planning Act, 1966: Section 44
- Maharashtra Ordinance No. 04/2018:
