B.P Dharmadhikari, J.:— By this writ petition under Article 226 of the Constitution of India, petitioners are challenging communication dated 19-11-2003 issued by respondent No. 2 Amravati Municipal Corporation rejecting their application for grant of sanction to building plan. Respondent No. 2 is a body corporate constituted under the provisions of Bombay Provincial Municipal Corporation Act, 1949, and is local authority as also planning authority for development of Amravati town. State of Maharashtra is arrayed as respondent No. 1 while Collector, Amravati is respondent No. 3. Executive Engineer, Electrical Division, Public Works Department, Amravati has been joined as respondent No. 4. Other prayers in writ petition are to restrain respondents from disturbing possession of petitioners on/over Plot No. 11, Nazul Sheet No. 56-B Amravati, except in accordance with law, to declare that demolition of shops standing on said plot on 21-4-2002 is contrary to law and to direct respondent No. 2 to pay compensation of Rs. 5 lakhs each to petitioners. Declaration is also sought that petitioners are entitled to construct their shop premises as per building map/plan submitted by them on 29-9-2003 as the same is deemed to have been sanctioned. The petitioners have added prayer and facts in relation to communication dated 19-11-2003 on 11-8-2004 after amendment. This Court issued Rule in the matter on 13-4-2004 and on that day also directed Municipal Corporation to file affidavit of City Engineer and to place on record relevant facts to support its stand that plan submitted by petitioners was not legal. In view of defence that portion of said plot is reserved for public Road and for beautification, it was also directed to produce extract of Development Plan.

2. We have heard Shri G.R Agrawal, Advocate for the petitioners, Shri M.K Pathan, Advocate for respondent No. 2, and Mrs. Wandile, AGP for respondents No. 1, 3 and 4. The fact that petitioners are legal allottees and are in possession of plot No. 11 is not in dispute. It is admitted that permanent lease of said plot is granted to petitioners by respondent No. 3 on 16-4-1998 and respondent No. 2-Municipal Corporation also gave no objection for such grant. Shops of petitioners existed on said plot since 1951-1952. However, respondent No. 2 has demolished those shops on 21-4-2002.

3. It is in this background that the petitioners state that issue of demolition of unauthorised constructions was discussed in general body meeting of respondent No. 2 on 16-11-1996 and vide Resolution No. 138 it was unanimously decided that constructions prior to 30-9-1996 would not be demolished by treating them as unauthorised. On 4-10-1999, petitioners applied to respondent No. 2 for sanctioning their proposed construction in place of their existing structures. After two months i.e on 10-12-1999 Assistant Director of Town Planning working under respondent No. 2 communicated rejection on the ground that construction obstructed beautification work of square. They submitted revised plan on 28-8-2000 which came to be rejected on 13-10-2000 mechanically without assigning any reasons. A joint drive was then undertaken by respondent Nos. 2, 3 and Superintending Engineer, B and C Department for removal of encroachments and as petitioners received threats of demolition, they filed Writ Petition No. 1910/2000. Respondent No. 2 Corporation filed submissions therein assuring that no action will be taken against petitioners without following the procedure prescribed under Bombay Provincial Municipal Corporation Act, 1949. After recording said undertaking, that writ petition was dismissed on 14-6-2000. Thereafter petitioners submitted representation to Assistant Director that they would bear necessary expenditure for beautification of square. On 20-1-2001 respondent No. 1 wrote to respondent No. 3 Collector that permanent lease given to petitioners could not be cancelled without providing alternate accommodation and their construction was not encroachment. In spite of all this, on Sunday-21-4-2002, respondent No. 2 demolished the shops and structures of petitioners at 6 A.M The petitioners suffered loss of Rs. 3 lakhs each as entire material in their shops was bulldozed. In order to protect their possession, they erected barbed wire fencing but on 27-4-2002 respondent No. 2 issued communications to remove it. Petitioners state that same has been wrongly treated and termed as public place. By amendment effected on 16-1-2004, petitioners have pointed out that their shops are not situated at Jaistambha square and their shops are not included in any development or beautification plan. They also produced site plan and photographs to show how their shops and plot is situated away from Jaistambha square. They also pointed out that there are several shops in vicinity and petitioners have been singled out and there is no question of any traffic hazard. They have further pointed out how rejection of their two applications for sanctioning building plan is contrary to law. They state that on 29-9-2003, they filed another application for sanction, strictly in accordance with law and the same was not rejected within statutory period of 60 days and there was no response from respondent No. 2. They contend that therefore their building plan is deemed to have been sanctioned on 28-11-2003 by virtue of bye-law No. 6.7.2 of the Building Bye-laws i.e Development Control Rules. They further stated that on or about 13-11-2003 officers and staff of respondent No. 4 carried out digging work for laying pipeline and construction of chamber on the plot of petitioners and hence they submitted representation to him on 14-11-2003. The work was discontinued by respondent No. 4 because of representation. They also mention that they have also filed Regular Civil Suit No. 468/1994 along with 20 shop owners for grant of declaration and injunction. After receipt of reply of Municipal Corporation, petitioners have further amended their petition on 16-8-2004 to contend that alleged communication of rejection of building plan dated 19-11-2003 was never served upon them. They also pointed out how reasons assigned for its rejection in alleged communication dated 19-11-2003 are incorrect. By counter affidavit, they have also denied service of rejection notice and contend that documents showing service of said order on their architect are fabricated. In their second counter filed on 24-4-2007, petitioners have pointed how with slight modifications problem about area of shop raised by Corporation can be solved.

4. Municipal Corporation in its reply affidavit stated that notice dated 21-6-2000 was issued to petitioners for removal of their construction and thereafter their unauthorised construction was not demolished till 2002. They state that Writ Petition No. 1513/2002 came to be filed before this Court in public interest complaining that orders to remove unauthorised constructions on public roads passed by High Court were not being implemented by Municipal Corporation or by State Government. Attention is invited to orders dated 19-4-2002 which clarified that orders passed by High Court did not come in way of respondents in removing unauthorised constructions and encroachments on footpaths, public streets, areas abutting roads and High Court expected the authorities to remove the encroachments within 48 hours. These orders were communicated to the petitioners by Municipal Corporation calling upon them to remove their belongings and thereafter only actual demolition was done. They also stated that Contempt Petition No. 193/2002 filed in W.P No. 1910/2000 in this respect by the petitioners was dismissed on 16-4-2003. Though initially no objection was given on 29-7-1998 to respondent No. 3-Collector for allotting this land to petitioners, after realising its need for Public Road, respondent No. 2 has moved respondent No. 1 for cancellation of said lease on 10-1-2001. In additional affidavit, Corporation has pointed out that as plan was submitted by petitioners through their Architect, rejection was also communicated to said Architect within 60 days. It is stated that though area is commercial, plot of petitioners is on road and is affected by Integrated Road Development Plan work. Map prepared by Maharashtra State Road Development Corporation is also relied on in it to state how site of petitioners is covered under sanctioned Jaistambha square development and road widening work. In its Return filed on 23-4-2007, Municipal Corporation has pointed out how area of each shop proposed by the petitioners is less than statutory minimum requirement.

5. Respondent No. 4 Executive Engineer has stated that plot No. 11 claimed by petitioners comes within control line of major State Highway No. 6 and the petitioners could not have carried any construction on it without valid sanction from Municipal Corporation. It is stated that plot No. 11 is required for improvement of the junction of major State Highway No. 6 and Maldhakka Road to remove accidents and congestion of traffic.

6. Shri Agrawal, Advocate has contended that the preliminary objection raised by respondent No. 2 on the ground of availability of alternate remedy in the shape of an appeal under section 47 of Maharashtra Regional and Town Planning Act is misconceived and said objection cannot be raised as Rule has already been issued in the matter. He has relied upon judgment of this Court reported at 2004 (1) Mh. L.J 406, Procter and Gamble India Ltd. v. Municipal Corporation of Greater Bombay in support of his stand. He further states that in view of clear provision in Rule 6.7.2, as nothing has been communicated to petitioners by planning authority i.e respondent No. 2 within statutory period of 60 days from submission of building plan, the building plan is deemed to have been sanctioned and petitioners are entitled to raise construction according to it. He argues that communication dated 19-11-2003 allegedly forwarded by respondent No. 2 to Architect is not genuine document and cannot be relied upon because it has been prepared later on. He invites attention to said communication to state that none out of total 8 reasons given therein for alleged rejection of building plan is correct and legally sustainable. He has dealt with each reason individually for demonstrating its either incorrectness or irrelevant nature. He further states that development work of Jaistambha square is already over and plot of petitioners is situated at a distance from said square and did not in any way obstruct the beautification thereof. He further states that reason put forth that plot of petitioners is meant for Public Road is incorrect and in Development Plan it is shown in blue-colour i.e for commercial purposes. He further states that mere mention that it is public road in property card is not sufficient particularly when Government has allotted said plot to petitioners since 1956 and lease has been made permanent with consent of respondent No. 2. He points out that earlier 3 rejections of building plan were not on account of said plot being reserved for road. Defence of public road is raised for the first time in affidavit and same cannot be considered by this Court. He places reliance upon judgment of Hon'ble Apex Court reported at 2003 (6) SCC 545, Chandra Singh v. State of Rajasthan.

7. Learned AGP as also Shri Pathan, Advocate state that alternate remedy provided for under section 47 of Maharashtra Regional and Town Planning Act is available to petitioners and said objection could not be raised before issuance of “Rule” by this Court as at the relevant time there was no prayer to attract it. They point out that said prayer has been added later on by amendment. With the assistance of Property Card, IRDP plan, they state that plot of petitioners is required for road widening and hence cannot be allowed to be constructed. Shri Pathan, Advocate has argued that as rejection was communicated within 60 days to Architect through whom petitioners submitted plan, concept of deemed sanction is not at all attracted. It is further stated that no statement was made on 13-4-2004 before this Court that plot of petitioners was reserved for public road and mention thereof as such is incorrect. He also points out how order dated 19-11-2003 is as per law and no interference is warranted in exercise of writ jurisdiction.

8. From arguments reproduced above, it is apparent that the prayer for grant of compensation has not been pressed. Even in Synopsis placed on record by petitioners for final hearing relevant facts and details are not given. At the end of synopsis, 3 points to be heard are specifically mentioned and effort made is to protect possession and to obtain declaration of deemed sanction of building plan. We therefore proceed to consider the controversy in this background. During hearing, petitioners have themselves offered to shift one of the partition walls of shop block so as to bring its area in conformity with Rule/Clause 21.4.1 They have further stated that they will not construct any Ota. i.e platform and same can be ignored by Corporation. They have further stated that there is no first floor in their building plan and hence no staircase is required. They have also undertaken not to construct first floor in future. These are some of the reasons given by respondent No. 2 in the order of rejection dated 19-11-2003. The stand of petitioners is that order of rejection dated 19-11-2003 is prepared later on and is fabricated document. They contend that said order is not served upon them within 60 days of submission of building plan by them for sanction. We therefore find it necessary to first consider the law on the point of deemed sanction of building plan. The deeming provision Clause 6.7.2 contemplates that if within 60 days after receipt of notice of construction of building with plan the authority fails to intimate in writing to the person who has given notice of proposed construction, its refusal of sanction; notice with its plans and statements shall be deemed to have been sanctioned after expiry of said period of 60 days. However it is subject to an important rider that such deemed sanction does not authorise such person to do anything in contravention of or against the bye-laws or building regulations. In other words construction proposed contrary to building bye-laws or development control regulations cannot be deemed to have been sanctioned because of such omission on the part of Municipal Corporation. The law on the point of deemed sanction is well settled as can be seen from following 2 judgments.

9. In 1995 Supp (2) SCC 56 : AIR 1995 SC 659, Calcutta Municipal Corporation v. Anil Ratan Banerjee, Hon'ble Apex Court has explained the position thus:—

“2. So far as the deemed sanction of the twelve-storeyed building applied for an August 24, 1987 is concerned, it cannot be deemed to have been sanctioned on the expiry of thirty days by virtue of section 319 of the Bengal Municipal Act for the reason that no such permission could have been actually granted under the law then in force in the said area, having regard to the width of the road abutting the respondents' plot and other relevant circumstances. The Division Bench has itself recognised that the deemed permission cannot be inconsistent with the relevant rules and regulations. No deemed permission can be conceived of which is inconsistent with the relevant rules and regulations.”

10. In AIR 1990 Patna 174, Uma Shyam Parivar Trust v. State of Bihar, Division Bench of said High Court has observed:

“63. However, there cannot be any doubt that the plan cannot be sanctioned which is against the mandatory provisions of the master plan and, in this view of the matter, there cannot be any deemed sanction of plan which would be in contravention of the provisions of the Act and/or mandatory provisions of the bye-laws. In other words, if a plan cannot be sanctioned by the authorities, in terms of section 37(1) of the Act, no plan can be deemed to have been sanctioned even if the same was in violation of the mandatory provisions of the Act and the building bye-laws framed therein. Further, in any event, in case of misrepresentation or fraud as envisaged under section 38 of the said Act, such a deemed plan may also be cancelled. The Vice Chairman of the respondent No. 2 authority in appropriate cases will also have the power to take recourse to the provisions contained in section 40 of the said Act.”

11. It is obvious that if construction itself cannot be sanctioned under Development Control Rules or Building Bye-laws, the concept of deemed sanction is not applicable to such construction. Provision for deemed sanction is made in these rules or bye-laws to induce sanctioning authority to act promptly. However, said promptness is introduced considering the fact that consequent work to be undertaken after sanction is to be completed within stipulated time by its owner. Owners also wish to avoid rising costs of construction. The concept of deemed sanction is therefore not available to presume that sanctioning authority has done something or permitted something which it itself could never have done or permitted. Thus construction which could never have been sanctioned is never deemed to have been sanctioned under this concept. Said concept is attracted when plan is perfectly in accordance with law and still the sanctioning authority does not consider it within 60 days. Some relief in equity can be considered if unauthorised construction made by invoking this principle is only irregular and compoundable under law. In facts of case before us, provisions of Clause 21.4.1 need to be kept in mind while considering the building plan submitted by petitioners on 29-9-2003. Clause 21 provides for special requirements depending upon nature of occupancies and different/separate provisions are made for educational buildings, institutional buildings like hospitals, cinema theatres, industrial buildings etc. Clause 21.4 reads as under:—

21.4 Special Requirements of Mercantile Buildings.

21.4.1 Minimum area of shop shall be 6 square metres in R-1 zones with a minimum width of 2 metres and 10 square metres in R-2 and other zones with a minimum width of 3 metres.

12. Application of above provision or requirement of minimum shop area of 6 square metres is not in dispute by petitioners. On the contrary in counter affidavit dated 24-4-2007 petitioners have in paragraph 3(c) attempted to demonstrate that width of one shop is 1.84 metres while that of adjacent shop is 3.30 metres and they submit that if area from adjacent shop is added by shifting dividing wall by 0.30 metres, it would increase to 2.14 metres. Perusal of map submitted by petitioners which they claim to have received deemed sanction shows that there are total four shops and area of biggest shop is 5.181 square metres. Area of two shops at corner is 4.53 square metres and 4.00 square metres respectively. Area of remaining shop (smallest) is about 2.88 square metres. If adjustment as suggested by petitioners is accepted, area of largest shop will be reduced and area of this smallest shop will be increased. However it will not be 6 square metres in any case which is minimum contemplated by Clause 21.4.1 above. It is therefore obvious that said map could not have been sanctioned at all within 60 days and hence, principle of deemed sanction is not applicable to it. In said plan, petitioners have also shown platform with width of 1 metre in front of all their 4 shops. They have in this Court accepted not to construct it as it does not fit in requirements of law. In view of these deficiencies in building plan, we find that same could not have been treated as sanctioned by invoking principle of deemed sanction. One of the reasons given by Municipal Corporation is, there is no staircase shown in it and petitioners have explained that as they do not have first floor, staircase is not needed and they have expressed readiness and willingness to give an undertaking that they will never construct anything on first floor. We therefore find that reasons No. 2, 4 and 8 pointed out by respondent No. 2 Corporation in impugned communication dated 19-11-2003 cannot be faulted with. It is to be noted that even if it is presumed that communication of rejection dated 19-11-2003 is fabricated later on by respondent No. 2 and said communication is therefore totally ignored; still because of these lacunae which admittedly exist, there is no question of applying principle of deemed sanction. Said plan as it stands therefore cannot be treated to have been approved or sanctioned by Municipal Corporation. It requires modifications and hence resubmission. In view of arguments and by petitioners themselves it is clear that petitioners have to submit a new plan drawn in accordance with building bye-laws for fresh consideration of Corporation. In view of this position, it is not necessary for us to consider whether other reasons communicated by Corporation for rejection of building plan are right or not. While submitting new map, petitioners can take precautions to submit all relevant documents with it so as not to leave any scope for rejection thereof on such technical grounds. Similarly, in view of this finding, issues like whether rejection was communicated to Architect of petitioners by Corporation within period of 60 days or whether map with notice of construction was submitted to Corporation by petitioners personally and not by their Architect and whether rejection letter dated 19-11-2003 is bogus etc. are all rendered academic and require no answer in this petition. It is obvious that rejection of building plan of petitioners by respondent No. 2 cannot be faulted with and in any case petitioners are not in a position to construct as per it.

13. Next question to be decided is about the possibility of construction on said plot. It is not in dispute that plot came to be allotted to petitioners in 1951-1952 and thereafter a permanent lease has been given to them by respondents No. 1 and 3 after considering no objection given by respondent No. 2 Municipal Corporation. Corporation has invited our attention to property card register to state that said plot No. 11 is in fact public road. Said property card reveals position as on 29-11-1999 and it mentions State Government as owner of plot and remark “public road” appears in row with title “other remarks”. It also mentions order of Collector (respondent No. 3) dated 16-4-1998 and states that accordingly for price decided said plot has been given for commercial purpose to petitioners. From other maps it appears that said plot is situated away from Jaistambha square. However map placed on record by Assistant Director of Town Planning working with respondent No. 2 shows that said plot is exactly at corner or junction of highway No. 6 and road going to godowns of Railway i.e Maldhakka. It also shows that water pipeline is passing below said plot. If this map is accepted to be correct, then the plot is not situated inside the triangle caused due to meeting of internal road margins of above two public roads. The plot appears to be situated outside said triangle i.e just above its tip. Merely because area in triangle is shown as earmarked for commercial purposes in Development Plan, that does not mean that said plot is also so earmarked. Commercial area also require public roads for user. Sectional Engineer of P.W.D i.e respondent No. 4 has filed affidavit dated 31-3-2004 stating that said plot is required for improvement of junction of these two roads. Petitioners have not alleged any mala fides personally against any one and in the circumstances, we have no hesitation to accept that plot allotted to the petitioners is required for road widening or junction improvement. However, fact remains that said plot has been allotted to petitioners for commercial purposes by respondents. Whether it was earmarked for public road since 1952 or has been reserved for public road thereafter is the issue on which no material has been produced before us. It appears that no objection has been given on behalf of respondent No. 2 by its Administrator on 29-7-1988 and said no objection clearly mentioned that these shops i.e shops on plot No. 11 in dispute are on public road. Administrator then has observed that as alternate land for rehabilitating petitioners who are displaced persons, is not available, Municipal Corporation has no objection for settling them on their existing plots by preparing a proper layout. But he has not quoted any resolution passed by him or by Municipal Corporation on said lines. If plot allotted to petitioners was always part of public road, respondents have to take decision and action accordingly for cancellation of or for determination of permanent lease granted to petitioners. On the contrary, if plot has been reserved or has become part of public road later on, steps in accordance with provisions of M.R.T.P Act may have to be taken. After hearing respective Counsel, we find that in any case when Administrator of respondent No. 2 gave no objection, petitioners knew that their plot was part of a public road. Respondent No. 3 Collector also knew it and proceeded to grant permanent lease of public road land to petitioners. The document of Lease executed by State Government or Collector in favour of petitioners is not produced before us. Admittedly, respondent No. 2 has already moved Collector on 16-10-2000 for cancellation of said lease. We therefore refrain ourselves from expressing anything finally in this respect. However, we direct respondent No. 3 Collector or Authority competent to take decision in relation thereto, to take appropriate decision about cancellation or continuation of lease of said land upon application made by respondent No. 2 within a period of four months from the date of this order after hearing petitioners and respondent No. 2. Respondents shall take appropriate decision without fail in this respect during this period of four months.

14. In Chandra Singh v. State of Rajasthan Hon'ble Apex Court has considered issue of supplying reasons for first time in Court to substantiate order of compulsory retirement. New reasons not in existence were sought to be pressed through affidavit. Observations pressed into service by petitioners to contend that as ground of square development or road widening was never assigned in any rejection and is taken for first time in reply affidavit, same should not be entertained, read as under:—

“37. This takes us to the question as to whether the action of the High Court in making the assessment of the performance of the appellants prior to 31-3-1999 stand the scrutiny of Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took any stand that its action was justified thereunder. Ex facie the said rule is not applicable inasmuch as it has never been the contention of the respondents that the impugned order had been passed in public interest or other pre-requisite therefor, namely, giving of three months' notice in writing to the Government servant before the date on which he is required to retire in public interest or three months' pay and allowances in lieu thereof had been complied with. Compliance of pre-requisites of such a rule, it is well settled, is mandatory and not directory. Such a plea has expressly been negatived by this Court. [See Rajat Bar an Roy's case (supra) paras 13 to 16]. It is fairly well settled, that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. (See Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, (1978) 1 SCC 405. It may be true that mentioning of a wrong provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr. Rao. But the said principles cannot be applied in the instant case as the said provisions operate into two different fields requiring compliance of different pre-requisites. It will bear repetition to state that in terms of R. 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months' notice or three months' pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with.

15. Here position is entirely different. Area of shops proposed to be constructed as shown by petitioners themselves is less than minimum required under Development Control Rules. Said violation is also mentioned in impugned communication. Petitioners have not disputed correctness of this reason. Moreover, the Architect who drew map for sanction for them must be presumed to be aware of all this. Petitioners cannot question no objection given by Administrator of respondent No. 2 which clearly stated that plot in dispute was not layout plot but public road. Thus essential facts to apply law are not in dispute before us. Considering all this, we find that reliance on this judgment of Hon'ble Apex Court is misconceived here.

16. If request of respondent No. 2 Municipal Corporation for cancellation of said permanent lease is rejected, petitioners shall be free to apply for grant of sanction to their proposed construction strictly in accordance with provisions of law. In that event, respondent No. 2 shall process such application for sanction and proceed to grant it if construction proposed therein is within four corners of building bye-laws or development control rules. If request of respondent No. 2 is granted, petitioners shall within period of two weeks thereafter hand over vacant possession of plot No. 11 i.e of land allotted to them to respondent No. 3 for and on behalf of respondent No. 2. Respondents shall not interfere with or disturb possession of petitioners on said plot during above-mentioned period of four months. Petitioners shall not raise any structure, either temporary or permanent, on said plot during this period of four months and also shall not create any third party interest or encumbrance upon it. Thus prayer “1” in writ petition is granted only to this extent and subject to conditions mentioned above. Other prayers in writ petition are rejected.

17. Writ petition is, therefore, partly allowed. Rule made absolute only to the extent mentioned and also subject to conditions stipulated above. No order as to costs.

Writ petition partly allowed.