(Ranjan Gogoi and Prafulla C. Pant, JJ.)
Kishan Kedia _______________________________________ Appellant
v.
State of Maharashtra & Ors. ________________________ Respondent(s)
Civil Appeal No(s). 2141-2142/2013, decided on July 21, 2016
With
C.A. No. 2140/2013, Contempt Petition(C) No(s)……../2016 in Civil Appeal Nos. 2141-2142 of 2013
The Order of the court was delivered by
Order
1. We have heard the learned counsels for the parties.
2. In view of the order that is being proposed to be passed we do not consider it necessary to burden this order by a detailed recital of the voluminous facts. Suffice it will be to notice that under the Development Plan in question (under Maharashtra Regional and Town Planning Act, 1966) for residential zones (5.6.3.1) a 30 meters Green Belt from the high flood level on both banks of Indrayani River was proposed. The Development permission as well as N.A. permission granted to the appellant was in a fact situation where the high flood level line was not drawn. When the matter reached the table of the Departmental Minister by way of appeal against an intermediary order passed by the Divisional Commissioner, the State Government by a very exhaustive order set aside the order of the Divisional Commissioner and allowed the appeal of the appellant. However, in paragraph 3 of the operative order, details of which are noticed below, the State Government constituted a Committee to consider the question of drawing the highest flood line and on that basis to take further action as may be necessary under the Maharashtra Regional and Town Planning Act, 1966 (for short “the MRTP Act”)
“3. Main Complaint of Respondent Mr. Balaji Tambe and Atma Santulan Village Pvt. Ltd. is that the Flood Control Line which is demarcated by Irrigation Department of Indrayani River, said line is not shown in regional Plan, therefore flood control line is not practically demarcated on ground while granting N.A. permission whether Flood Control Line and Line of Green Belt tallies with each other? Similarly constructions which are in existence disregarding flood control line and which are to be constructed in future, should not suffer damage, in order that for demarcation of flood control line and for suggesting measures with a view to avoid damage from flood.
I am giving order for formation of committee as under:
(A) Commissioner, Pune Division.
(B) Chief Executive Engineer, Irrigation Division, Pune
(C) Asstt. Director, Town Planning, Pune.
Above officers should consider highest Flood level line and shall take legal action to point out said line in Regional Development Plan and for that purpose approval of government be obtained under M.R.T.P. Act. Similarly by taking measures for not causing damage of constructions due to flood, its implementation be carried out.”
3. It appears that pursuant to the aforesaid direction, the Committee submitted its report on 28th August, 2008 which is adverse to the appellant. The same was accepted by the Government on 29th January, 2009. It is at this stage that the appellant moved the High Court. The High Court by means of the order under challenge had caused a remand of the matter to the Collector for a fresh consideration of the matter uninfluenced by any of the facts and events that had occurred earlier.
4. In the course of the elaborate arguments advanced by the learned counsel for the appellant it has transpired that the report of the Committee dated 28th August, 2008 accepted by the Government on 29th January, 2009 was without prior notice to the appellant. The said report which is available on record is undoubtedly adverse to the appellant. In such a situation, the order of the High Court causing a remand of the matter to the Collector to re-decide the matter uninfluenced by all that has happened including the decisions taken by the Authorities superior to him cannot be countenanced. According to us, the High Court ought to have required the State Government to consider the report submitted by the Committee after affording full and adequate opportunity to the appellant to have its say in the matter. The same not having been done we are of the view that the aforesaid course of action should now be directed which we accordingly do. Needless to say, depending on the fresh decision that the State Government may arrive at after hearing all the contesting parties further action as would be required in law in the matter of the permissions granted to the appellant under Section 18 of the MRTP Act and under Section 44 of the Maharashtra Land Revenue Code, 1966 will follow. Any of the parties that may be aggrieved by the outcome of the fresh proceedings ordered by the present directions will be at liberty to avail of such remedies as may be open to them in law.
5. Naturally, as we have remanded the matter to the State Government for fresh consideration, the acceptance of the report dated 28th August, 2008 by the State Government by its order dated 29th January, 2009 shall stand interfered with. Status quo with regard to the property in question shall be maintained by the appellant.
6. The appeals as also the contempt petitions are disposed of in the above terms.
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