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Saturday, February 14, 2015

the Maharashtra Regional and Town Planning Act, 1966 =True copies of notification dated 3rd June, 1976 and Part Development Plan of Nagpur City have been produced wherein respondent no.4-Gorakshan Sabha has been shown within the area of public institutions and offices. In absence of original coloured plan the true copy of the plan cannot be relied upon to hold any construction illegal in view of the fact that the N.M.C which sanctioned building plan supposed to have gone through the original plan. 15. In absence of the sanctioned plan, we are of the view that the High Court was not justified in deciding the disputed question of fact as to whether the building was constructed in accordance with Town Planning Scheme. The High Court ought to have looked into the sanctioned plan to find out whether it was for office (Karyalaya) or for residential or for commercial purpose for coming to a definite conclusion. Further, there being a long delay of eight years in filing the writ petition and in absence of challenge to the plan sanctioned by N.M.C, the High Court was not justified in entertaining the so called Public Interest Litigation filed by persons who had personal dispute with respondent no.4.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5577 OF 2004


SAI KRIPA MANGAL KARYALAYA & ORS.            ... APPELLANTS

                                   VERSUS

NAGPUR MUNICIPAL CORPORATION & ORS.          ... RESPONDENTS


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      This appeal has been preferred by the appellants against the  judgment
and order dated 30th April, 2002 passed by the High Court of  Judicature  at
Bombay, Nagpur Bench, Nagpur in  Writ  Petition  No.1485  of  1984.  By  the
impugned judgment, the  High  Court  allowed  the  writ  petition  filed  by
respondent nos.5 and 6 and held as follows:
      (i) The building permits granted by Nagpur  Municipal  Corporation  to
      the land belonging to respondent No.4-Gorakshan Sabha, a Public  Trust
      are unauthorized and illegal and hence buildings put  up  pursuant  to
      such building permits are liable to be demolished
      (ii) The parties may make fresh applications seeking building  permits
      within one month from the date of judgment in accordance with  revised
      sanctioned development plan of 2000-2001 and  the  Planning  Authority
      shall dispose of such applications within four months.
      (iii) The Planning Authority shall demolish  the  said  structures  if
      they were found not in conformity with the revised sanctioned plan  of
      2000-2001.
2.    The factual matrix of the case is as follows:

2.1   One Shri  Dhondiba  Diwadkar  gifted  land  bearing  Survey  No.  471,
admeasuring 18.25 acres situated at Mouza Lendhra, Tahsil,  District  Nagpur
to respondent No. 4 - Gorakshan Sabha, a Public Trust. The said land was  on
the outskirts of Town of Nagpur and with the passage of time is  now  within
the Municipal limits of City of Nagpur.

2.2   In the year 1936, the Nagpur Improvement Trust Act (For short,  '1936'
Act) was enacted with a view to make  provisions  for  the  improvement  and
expansion of the then town of Nagpur. Under the  1936  Act  a  Trust  namely
Nagpur Improvement Trust (hereinafter referred to as 'N.I.T' for short)  was
constituted and N.I.T was empowered to  frame  various  improvement  schemes
specified u/s 27 of the 1936 Act for any  area  and  on  such  scheme  being
sanctioned by the State Government, the N.I.T. was to implement the  scheme,
if necessary by acquiring the land as contemplated under the 1936 Act.

2.3   With the gradual development of "Town of Nagpur"  into  the  "City  of
Nagpur",  the  city  of  Nagpur  Corporation  Act,  1948  (for  short,  'the
Corporation Act') was enacted  with  a  view  to  make  special  legislative
provisions to consolidate and  amend  the  law  relating  to  the  Municipal
affairs  of  the  City  of  Nagpur.  Section  2  of  the   Corporation   Act
specifically provides that the N.I.T constituted under the  1936  Act  shall
in the city of Nagpur continue to exercise the  powers  and  perform  duties
conferred and imposed under the 1936 Act. Section 3(5)  of  the  Corporation
Act provides that all the provisions of 1936 Act shall apply to the city  of
Nagpur. Section 5(10) of the Corporation Act defines "City of Nagpur"  means
the larger urban area specified in the notification issued under Clause  (2)
of Article 243(Q) of the Constitution of India. With the  enactment  of  the
Corporation Act, certain amendments to the 1936 Act were carried out.  As  a
result of amendment to section 1(2) of the Trust Act,  the  jurisdiction  of
N.I.T. was extended to the area comprised within the limits of the city  and
to such other area outside these limits as the State Government may  declare
from time to time by notification.  Section  2(m)  of  1936  Act  which  was
amended in 1952 provides that all references  to  anything  required  to  be
done under the 1936 Act shall include anything required  to  be  done  under
the Corporation Act which the N.I.T by virtue  of  1936  Act  has  power  to
enforce. Thus, both the Nagpur Municipal  Corporation  ('N.M.C'  for  short)
constituted under the Corporation Act and the N.I.T  constituted  under  the
1936 Act were entrusted with the responsibility of the  orderly  development
of the city of Nagpur.

2.4   In the  year  1966,  the  State  Government  enacted  the  Maharashtra
Regional and Town Planning Act, 1966 ('T.P.  Act'  for  short)  inter  alia,
with a view to make provisions for  planning  the  development  and  use  of
lands in the regions established for that purpose and for  the  constitution
of Regional Planning Boards thereof for the creation of  new  towns  by  the
Development Authorities. Section 2(15) of the T.P.  Act  defines  the  local
authority, to include inter alia, the  N.M.C.  under  the  Corporation  Act,
1948 and the  N.I.T.  constituted  under  the  1936  Act,  which,  on  being
permitted by the State were entitled to exercise the powers  of  a  Planning
Authority under the T.P. Act for any area under  its  jurisdiction.  Section
2(19) of the T.P. Act  defines  'Planning  Authority',  as  local  authority
which includes such other authorities as prescribed  under  the  Act.  Under
the T.P. Act, it is obligatory on the part  of  the  Planning  Authority  to
survey a region and prepare an existing land-use map  and  prepare  a  draft
development plan for the area within its jurisdiction in accordance  with  a
regional plan or in such other manner as may be prescribed.  Section  22  of
the T.P. Act provides that a development plan shall generally  indicate  the
manner in which the use of the land in the  area  of  a  Planning  Authority
shall be regulated, and also indicate the manner in  which  the  development
of a plan shall be carried out. It is further provided in Section 22 of  the
T.P.  Act  that  the  development  plan  in  particular  shall  provide  for
proposals for  allocating  the  use  of  land  for  the  purposes,  such  as
residential,  industrial,   commercial,   agricultural,   recreational   and
proposals for designation of land  for  public  purpose,  such  as  schools,
colleges and other  educational  institutions,  medical  and  public  health
institutions, markets, social welfare and  cultural  institutions,  theatres
and places  for  public  entertainment  or  public  assembly,  museums,  art
galleries, religious building and Government and other public  buildings  as
may from time to time be approved by the  State  Government.  The  T.P.  Act
provides for modification of the draft  plan  on  receiving  objections  and
suggestions from the general public. Section 31 of  the  T.P.  Act  provides
for sanction to the draft development plan by the State  Government  and  on
the final development plan coming into force it is binding on  the  Planning
Authority. Section 42 of the T.P. Act  provides  that  on  the  coming  into
operation of any plan or plans referred to  Chapter  III  of  T.P.  Act,  it
shall be the duty of every Planning Authority to take such steps as  may  be
necessary to carry out the provisions of such plan or plans. Section  43  of
the T.P. Act provides restriction on the development of  a  land  after  the
date on which the declaration of intention to  prepare  a  development  plan
for area is published in the Official Gazette.  Thus,  once  declaration  of
intention to prepare draft  development  for  any  area  or  a  notification
specifying any undeveloped area as a notified area, or any  area  designated
as a site for a new town is published in the  Official  Gazette,  no  person
shall change the use of the land or carry out any development  of  the  land
without the permission in  writing  of  the  Planning  Authority  except  as
permitted under proviso appended thereto.

2.5   By a  notification  dated  6th  October,  1967  the  State  Government
permitted N.I.T. to exercise  the  powers  of  a  Planning  Authority  under
section 2(15) of the T.P. Act for the entire area under its jurisdiction.

2.6   In accordance with  the  aforesaid  provisions,  the  N.I.T.  on  12th
December, 1972 published draft development plan of the city  of  Nagpur  and
the same was published in the Government Gazette  on  28th  December,  1972.
After considering the  objections  and  suggestions,  modifications  to  the
draft development plan were made on 20th October, 1973  and  the  same  were
published on 17th January, 1974. Subsequently the  draft  development  plans
as further modified by the N.I.T. were forwarded  to  the  State  Government
for sanction under section 30(1) of the T.P. Act on 23rd October, 1974.  The
State  Government  extended  the  period  for  sanctioning  such  plan   and
ultimately with minor modification the draft development plan  was  approved
by the State Government. Thus, the final development plan for  the  city  of
Nagpur, as sanctioned by the State Government, came into force on 3rd  June,
1976.

3.    It appears that final development  plan  came  into  effect  from  3rd
June, 1976. Both N.M.C and N.I.T were granting

development permission in  their  respective  areas  and  later,  Government
noticed  the  problems  created  due  to  the  existence  of  two  sets   of
regulations in the Municipal Corporation Area. For the said  reason,  Deputy
Secretary  to  the  Government,  Urban  Development  Department  Mantralaya,
Bombay,  vide  letter  dated  1st  January,  1993  intimated  the  Municipal
Commissioner, N.M.C, Nagpur about Government  decision  that  draft  byelaws
published by the N.M.C u/s 169 of the T.P. Act read  with  Section  115  and
other sections of the Corporation Act, 1948 will not  be  operated  and  the
N.M.C like N.I.T  will  follow  the  draft  Development  Control  Rules  and
Building Byelaws prepared by the N.I.T as submitted to  Government  on  12th
October, 1990 which are under scrutiny of Government until  further  orders.
The aforesaid letter being relevant reads as follows:-

      "Confidential          No.TPS 2490/1504/CR-101/UD-9

                             Urban Development Department

                             Mantralaya, Bombay-400 032.

                             Dated: 1st January, 1993.

      To,

            The Municipal Commissioner,
            Nagpur Municipal Corporation,
            Nagpur.

      Sub: Regulation of Building  Control  Activity                     and
           implementation of Development Control         Rules and Building
           Bye-Laws in Nagpur City.

      Sir,

            The Nagpur Improvement Trust (N.I.T)  is  a  planning  Authority
      for the city of Nagpur in terms of the  Maharashtra  Regional  &  Town
      Planning Act, 1956.  Accordingly  if  prepared  the  development  plan
      alongwith building regulations  and  Development  Control  Rules  were
      approved by Government vide Notification No.:TPS 2476/478/UD-5,  dated
      the 3rd July, 1976.

            With a view to standing the I.C. rules  and  building  Bye-laws,
      Government had  directed  all  the  Municipal  Corporations  i.e.  the
      Planning Authorities  (Nagpur  Improvement  Trust  in  this  case)  to
      undertake  modification  under  Section  37  of  the  Act  and  follow
      standardized Development Control Rules and Building  byelaws  and  has
      forwarded the proposal for government approval on 12th October, 1990.

       2.     The  Nagpur  Municipal  Corporation  (N.M.C)  has  framed  the
      building Byelaws under City of Nagpur Corporation Act, 1948 which were
      approved by the  Government  vide  notification  No.N.M.C  5365/33770,
      dated  the  24th  June,  1965.  Subsequently,  the  Nagpur   Municipal
      Corporation in exercise of the powers conferred under section  159  of
      the Maharashtra Regional Town Planning Act, 1966 read with Section 415
      and other relevant sections of the City  of  Nagpur  Corporation  Act,
      1948 published draft revised byelaws. Those byelaws have been sent  to
      Government for approval vide letter No.GAD/18/G, dated 24th  February,
      1987 and they are yet  to  be  approved.  Both  the  Nagpur  Municipal
      Corporation and Nagpur  Improvement  Trust  are  granting  Development
      permission in their respective areas.

            Thus there has been no uniformity in  the  matter  of  the  (not
      eligible) There have been two sets  of  regulations  operated  in  the
      Municipal Corporation area and has been  admittedly  creating  certain
      serious problems.

       3.     Government  has  examined  the  matter   and   after   careful
      examination is pleased to issue directions under section  154  of  the
      Maharashtra Regional Town Planning Act, 1956 as follows:

             "Pending  the  approval  of  Government  for  the  proposal  of
      Development Control Rules and Building Byelaws submitted by the Nagpur
      Improvement Trust vide its letter No.D/630, dated 12th October, 1990.

        i) The draft Byelaws published by the Nagpur Municipal  Corporation
           under section 169 of the Maharashtra Regional Town Planning Act,
           1956 read with Section 115 and other sections  of  the  City  of
           Nagpur Corporation Act 1948 will not be operated.

       ii) The Nagpur Municipal Corporation like Nagpur  Improvement  Trust
           should follow the provisions in the  draft  Development  Control
           Rules and Building Byelaws prepared by  the  Nagpur  Improvement
           Trust as submitted to Government on 12th October, 1990 which are
           under scrutiny of Government until further orders.

      4.    The action taken may please be intimated to government.

                                                           Yours faithfully,




                                                       (C.S.Pentabalekungri)

                                             Deputy Secretary to Government"




4.    Between  1973  and  1983  lands  were  leased  to  the  appellants  by
respondent no.4 and building plans were sanctioned by the N.M.C.  The  N.M.C
was empowered to issue NOC during the said period  as  evident  from  letter
dated 15th September, 1981 written by Circle Engineer (P1),  N.I.T  to  Shri
Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted below:

      "OFFICE OF THE NAGPUR IMPROVEMENT TRUST

      No.Sch/NOC/2017  Nagpur, dated the 15.9.1981.

      To

      Shri Padmakar Joshi & Bros.

      Sitabuldi, Nagpur.




      Subject:-No Objection Certificate for Petrol Pump.

      Reference:-Your application dated 29.6.1981.

            With reference to above,  I  have  to  inform  that  the  Nagpur
      Municipal Corporation is empowered to issue no  objection  certificate
      in conformity with proposals of Development Plan of Nagpur.  You  may,
      therefore, approach  Nagpur  Municipal  Corporation,  Nagpur  in  this
      matter.

                                                                        Sd/-

                                                        Circle Engineer (P1)

                                                  Nagpur Improvement Trust."




      From  the  aforesaid  letter,  it  is  clear  that  inspite  of  draft
Development Plan which was published on  25th  December,  1972  followed  by
final Draft Plan on 3rd June, 1976, the N.I.T abdicated  its  authority  and
delegated it in favour of N.M.C by stating that N.M.C is empowered to  issue
NOC in conformity with proposals of Development Plan of Nagpur.

5.    Respondent nos.5 and 6 preferred a Public  Interest  Litigation  under
Article 226 of the Constitution of India before the Bombay High Court  Bench
at Nagpur inter alia, seeking a direction to N.M.C and N.I.T to  remove  the
structures standing on the lands  owned  by  respondent  no.4-Trust  on  the
ground that the same are  contrary  to  the  building  regulations  and  the
development plan sanctioned by the State Government under the T.P.  Act.  In
the said writ petition, the impugned judgment  was  passed  on  30th  April,
2002 as noticed in the opening paragraph.

6.    Learned counsel for the appellants while referring to  the  facts,  as
narrated above, submitted that the writ petition  was  filed  by  respondent
no.5 after inordinate delay to vent out their personal  vendetta.  The  said
writ  petition  cannot  be  termed  to  be  Public  Interest  Litigation  as
respondent nos.5 and 6 vented out their private dispute.

7.    Learned counsel for the appellants further  submitted  that  the  said
writ petition was primarily filed  by  respondent  no.5  claiming  to  be  a
member of respondent no.4-  Trust  and  respondent  no.6  a  member  of  the
locality alleging mismanagement by the said Trust in leasing  lands  to  the
appellants.  Apart from the aforesaid fact the respondent nos.5  and  6  did
not disclose the nature of public interest involved. A  personal  grudge  of
respondent no.5 is clear as he was claiming to be  a  member  of  the  Trust
which was not accepted by the Trust. It was further submitted that the  writ
petitioners having not approached the Court with clean hands and it being  a
private dispute between respondent no.5 and Trust  the  said  writ  petition
was not maintainable. It is further contended that in absence  of  challenge
to the sanctioned layout the High Court ought  not  to  have  declared  them
unauthorized and illegal.

8.    Learned counsel for the parties relied upon Section 2  (15)  (c)  (ii)
(iii), Section 2(19), 20 and 154 of the T.P. Act.  Reliance was also  placed
on final Development Plan dated 3rd  June,  1976  sanctioned  by  the  State
Government.  A photocopy of True copy of Resolution  dated  3rd  June,  1976
enclosing copy of the notification issued under the  letter  head  of  N.I.T
alongwith part Development Plan of Nagpur City was also produced  separately
for perusal.

9.    Respondent nos.5 and 6 have taken similar pleas as were  taken  before
the High Court. Counsel for respondent  no.4  also  supported  the  case  of
respondent nos.5 and 6.

10.   We have heard the rival contentions raised by the parties and  perused
the record.

11.   It is not in dispute that the respondent  no.4-Trust  has  leased  the
property in favour of the appellants. Respondent no.5 was claiming to  be  a
member of the Trust and Respondent  no.6  claims  to  be  a  member  of  the
locality and as noticed above they filed the writ petition before  the  High
Court   alleging  mismanagement  by  the  Trust  in  leasing  lands  to  the
appellants. But what we find  is  that  the  respondent  no.4-Trust  is  now
supporting respondent nos.5 and 6.

12.    The  aforesaid  fact  clearly  shows  that  writ  petition  filed  by
respondent nos.5 and 6 was not bona fide but it was filed  only  on  account
of personal disputes between the parties i.e. inter se between  the  members
of the respondent no.4-Trust indirectly  affecting  the  appellants-tenants.
Respondent no.4-Trust in its reply  before  the  High  Court  supported  the
appellants but before this Court their learned counsel  supported  the  case
of respondent nos.5 and 6.

13.   There is no dispute that no such notification was issued by the  State
Government  empowering  the  N.M.C  to  exercise  the  power   of   Planning
Authority. By letter dated 1st January, 1993,  the  State  Government  asked
the N.M.C to follow the draft development Rules framed by  the  N.I.T  there
being conflict between two draft Rules one drafted by the N.M.C and  another
by   N.I.T.   The   State   Government   on   27th   February,   2002    has
rescinded/withdrawn the notification dated 6th October, 1967  and  permitted
N.M.C to exercise the powers of a Planning Authority in the area  under  its
jurisdiction except the areas in which the N.I.T has improvement schemes  as
more particularly set out in the said  notification.  Thus,  prior  to  1967
N.M.C was the authority to exercise the same power sanctioning the plan  and
since 27th February, 2002 the N.M.C was  again  empowered  to  sanction  the
plan. During the period from 1967 till 2002, though N.I.T was  the  Planning
Authority for the city of Nagpur, it abdicated its power,  delegated  it  in
favour of N.M.C and did not sanction any building plan which is  also  clear
from letter dated 15th September, 1981 issued by N.I.T to one Shri  Padmakar
Joshi & Bros., Sitabuldi, Nagpur as quoted above.

14.   True copies of notification dated 3rd June, 1976 and Part  Development
Plan of Nagpur City have been  produced  wherein  respondent  no.4-Gorakshan
Sabha has been shown within the area of public institutions and offices.  In
absence of original coloured plan the  true  copy  of  the  plan  cannot  be
relied upon to hold any construction illegal in view of the  fact  that  the
N.M.C which sanctioned building plan  supposed  to  have  gone  through  the
original plan.

15.   In absence of the sanctioned plan, we are of the view  that  the  High
Court was not justified in deciding the disputed  question  of  fact  as  to
whether the building  was  constructed  in  accordance  with  Town  Planning
Scheme.  The High Court ought to have looked into  the  sanctioned  plan  to
find out whether it was for office (Karyalaya) or  for  residential  or  for
commercial purpose for coming  to  a  definite  conclusion.  Further,  there
being a long delay of eight  years  in  filing  the  writ  petition  and  in
absence of challenge to the plan sanctioned by N.M.C,  the  High  Court  was
not justified in entertaining  the  so  called  Public  Interest  Litigation
filed by persons who had personal dispute with respondent no.4.

16.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
order dated 30th April, 2002 passed by  the  High  Court  of  judicature  at
Bombay, Nagpur Bench in Writ Petition No.1485 of 1984 and dismiss  the  Writ
Petition preferred by respondent nos.5 and 6.  The  appeal  is  allowed  but
there shall be no orders as to cost.



                      ....................................................J.
                               (SUDHANSU JYOTI MUKHOPADHAYA)




                      ....................................................J.
                                      (PRAFULLA C. PANT)
NEW DELHI;
FEBRUARY 12, 2015.

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