Whether builder can make unauthorised construction on the basis of deemed permission by municipal corporation?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION No. 4045 OF 2005
Ahmednagar Municipal Corporation,

versus
1. The State of Maharashtra,



CORAM : B.P. DHARMADHIKARI &
RAVINDRA V. GHUGE, JJ.

Date of pronouncing the
judgment : 10th December 2013
JUDGMENT (Per B.P. Dharmadhikari, J.) :
Read original judgment here;click here

Citation;2014(3) MHLJ167 Bom

 Respondent 2 has also filed a reply affidavit

before this Court on 21. 7. 2005. Therein, it is stated that
95% of the construction is already complete. In para 9 of
said reply, Respondent 2 states that it applied to the
Petitioner for revised permission with the plan on
10.12.2003 & asserts grant of deemed sanction after 60 days
therefrom. Statutory notice dated 26.2.2004 sent by the
Petitioner is urged to be after said 60 days. Perusal of notice
reveals a joint inspection on 24.2.2004, mention of sanction
dated 1.10.2001 as revised on 10.11.2001 and work of
basement digging in periphery of the Stadium. Respondent 2
has been warned to discontinue the illegal work &
threatened with coercive steps as per 1966 Act. Thus, this
insistence by the Petitioner to stick to 2001 sanctioned plans
is after 12.2.2004 & hence, the plan submitted by
Respondent 5 on 12.2.2004 or its deemed sanction as
pleaded in appeal memo becomes redundant. The plan with
application dated 10.12.2003 is of buildings A & B i.e. of
shopping plazas. About plans dated 10.12.2003, on
15.1.2004, Respondent 2 was informed that shopping plaza


plots A & B can not be allowed as per town planning
scheme 3final
plot 194. Thus, in the face of express
rejection on 15.1.2004, repeated request for same purpose
by the Respondent or not taking same decision upon it
again by the Petitioner, are the events not sufficient to infer
the “deemed sanction”. Moreover, this story of deemed
sanction is not in consonance with the story in its S. 47
Appeal. On 29.4.2005, while depositing the development
charges, said Respondent again seeks the building
permission for shopping plazas A & B. Thus the Respondent
2 again seeks building permission for buildings A & B & this
act also militates with defence of deemed sanction. Plea of
Deemed sanction must be certain & all necessary ingredients
must be disclosed and established.
18. In this background, the scheme of S. 44,45 & S.
53 of 1966 Act needs appreciation. Chapter IV of the Act is
about control of development & use of land included in DP.
S.43 prohibits every person from carrying out the

development or changing use of land without permission in
writing of the planning authority. In present matter,
inclusion of land within DP, its user vide reservation site 165
& 166 are the facts not in dispute & Petitioner alleges
development contrary to the DP while according to
Respondents, commercial user is not prohibited by the said
DP. S.44(1) mandates every person not being Central or
State Government or Local Authority intending to carry out
any development to apply to planning authority & seek its
prior permission. This position is also not in dispute before
us. S. 45 requires the planning authorities like Petitioner to
communicate the grant or refusal of permission by an order
in writing. Reasons are also required to be recorded for
imposing conditions or for refusing the permission. Failure to
communicate the decision either way results in grant of
deemed sanction under Section 45 subsection
5. But then
the language of first proviso to this subsection
reveals that if
the permission sought for violates any legal provisions or the
DP requirement, or any draft or proposed plan, this deeming

fiction is not attracted. Rigour of this proviso is further
strengthened by the later or second proviso of S.45(5),
which creates a negative deeming fiction. Thus, if the
development carried out by invoking deemed permission
under S.45(5) is in violation of any final DP or DCR or other
legal provision, the same is deemed to be unauthorized for
the purposes of S.52 to S.57 of 1966 Act. S.52 to 57 deal
with steps or measures for removal of such unauthorized
development. Thus, this deemed permission to develop is an
exception & rather a stringent exception to normal rule & it
permits an honest diligent owner or developer to proceed to
construct/develop at his own risk. Thus, failure to
communicate decision of planning authority within 60 days
to such person does not result in transforming the otherwise
inherent wrong construction or development into legal one.
It is only concession given to the honest developer who must
be certain that his work is in consonance with all legal
provisions & does not violate it. Only such person can
proceed to develop or construct, if he is ready & willing to

do so at his own risk & costs. Respondents before this Court
can not succeed only by pointing out non communication of
a decision by the Petitioner within 60 days period. Here, on
facts also we have already found such a plea of Respondents
unsustainable & misconceived. Moreover, neither Petitioner
nor Respondents have pointed out any law which enables
commercial user of a site reserved in DP for Stadium &
Sports center. Predecessor of the Petitioner viz. Municipal
Council, Ahmadnagar on 29.9.1998 resolved & accepted the
commercial user i.e. shopping complex. Facts show that on
4.7.2008, the Respondent 1 sanctioned E.P. Nos. 1 to 43 &
45 to 62 while on the E.P. 44 relevant here, there is no
decision. In law, resolution of local body does not amend the
DP user & therefore only said EP 44 became necessary.
Necessity of such a step in law & fact of its still being under
consideration is not in dispute. 

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