1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 118/1996
The City of Nagpur Corporation
Through Its Municipal Commissioner
Civil Lines, Nagpur. ... ...APPELLANT
v e r s u s
Indian Gymkhana
A Registered society
duly registered under the
Societies Registration Act
Through It s Power of Attorney-holder
M/s Sky Line Real Estate
Through Its Managing Partner
Shri Keshaorao Dodkuji Padole
Aged 45 years, R/o Dr.Munje Road
Dhantoli, Nagpur. .. ...RESPONDENT
............................................................................................................................
Mr C S Kaptan, Advocate for appellant
Mr. S P Dharmadhikari, Sr.Counsel with Mr D V Chouhan for
Respondent
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CORAM: A.P.BHANGALE, J.
DATED : 16th December, 2009
JUDGMENT :
This Appeal was admitted on the following substantial question of law, which were formulated by my Brother C.L.Pangarkar, J. by order dated 24th September, 2009 :
::: Downloaded on - 09/06/2013 15:25:36 ::: 2" (i) Whether the Courts below were in error in granting declaration that the Municipal Corporation cannot revoke the building plan for any reason and in any circumstance whatsoever?
(ii) Whether a suit for permanent injunction to restrain the Municipal Corporation from revoking the plan is maintainable?
(iii) Whether notice under section 384 of the city of Nagpur Corporation Act is necessary before institution of suit against an intended injury?"
2. The facts which appear from the records are that Regular Civil Suit No.1093/1989 was instituted by the respondent (original plaintiff) in the Court of learned Civil Judge, Jr.Dn. Nagpur with a prayer for declaration that the building plan sanctioned by the defendant- the City of Nagpur Corporation on 1st August, 1988 bearing No.232/EPR/3 can not be revoked in any circumstances with additional prayer for permanent injunction seeking to restrain the city of Municipal Corporation from revoking or withdrawing sanctioned plan, stated as above.
3. The plaintiff-Indian Gymkhana, is a society registered under the Societies Registration Act, 1860 occupy Plots bearing Khasra Nos.
289 and 290 situated at Mouza Dhantoli Tq. & Dist. Nagpur on lease-
::: Downloaded on - 09/06/2013 15:25:36 ::: 3hold basis from the Municipal Corporation. It is the case of the plaintiff that it had proposed a construct a big stadium with a swimming pool and an office-cum- shops-cum-residential blocks and had entered into an agreement with M/s Sky Line Real Estate, Nagpur so as to develop the aforesaid plots under an agreement dated 3.12.1987 (Exh.53). The plaintiff had submitted building plan for sanction and according to plaintiff, the plan for proposed construction was sanctioned by order dated 1st August 1988 bearing building Permit No.232/ EPR/3.
Thus, the plaintiff had started construction through the Developers after the plots were de-marketed. Further, according to plaintiff, the notice of demolition was issued to the plaintiff which was challenged by way of Regular Civil Suit No.1081/1989. It is contended that the plaintiff was allowed to construct as per the sanctioned plan. It is also case of the plaintiff that one Tukaram Raut was creating problems for the plaintiff-society as he wanted to bring a resolution for cancellation of lease in favour of the plaintiff. Thus, the plaintiff had challenged the proposed Resolution by filing RCS No. 1985/1987 which was decided on 2nd April,1988 and it was declared that the Corporation (City of Nagpur Corporation) has no jurisdiction to discuss any resolution in respect of land which is granted on lease-hold basis to the plaintiff.
4. Further, according to the plaintiff, the then Mayor of the ::: Downloaded on - 09/06/2013 15:25:36 ::: 4 Corporation had assured to take immediate action in the matter after a demand appeared in local newspaper to stop construction on the suit plots. It is the case of the plaintiff that defendant can not revoke sanction of construction which is already granted as plaintiff and developer spent substantial amount for construction. It is contended that on the principle of "Promissory Estoppel" the defendant is estopped from revoking the sanction.
5. The defendant-Corporation has resisted the suit tooth and nail, contending that the suit is not maintainable for want of pre suit statutory notice as required under section 384 of the City of Nagpur Corporation, 1948 ( in short " the Act of 1948"), therefore, the suit was liable to be dismissed. Further, it is contended that the suit plot was granted on lease-hold basis for the purpose of playground only and by the proposed construction, the user of the leased plots is being changed and, therefore, the proposed construction since in contravention of Development Plan of City of Nagpur, was unlawful. It is also contended that the building permit was obtained by the plaintiff by practicing fraud and in collusion with the officials of the defendant-
Corporation, for which they were punished. Thus, according to the Corporation, the sanctioned building plan was void ab initio and, as such, no relief could have been granted in favour of the plaintiff. It ::: Downloaded on - 09/06/2013 15:25:36 ::: 5 is also contended that in accordance with Section 348 (5) any licence or written permission granted under the City of Nagpur Corporation Act, 1948 or under any rule or bye-law made thereunder can be revoked or suspended by the Commissioner if any of its restrictions or conditions are infringed or avoided by the grantee or if the grantee is convicted of breach of any of the provisions of the Act or the Rules or the Bye Law made thereunder to which such licence or permission related.
6. It appears that the trial Court i.e. 20th Joint Civil Judge Junior Division, Nagpur, decreed the Regular Civil Suit No.1093/1989 and declared that the building permit bearing No.232/ EPR /3 dated 1.8.1988 issued by the Defendant -Municipal Corporation in favour of the plaintiff-society can not be withdrawn or revoked by the defendant, with further perpetual injunction was granted in terms to restrain its Officers and servants from revoking or withdrawing the sanction plan under the Building Permit dated 1.8.1988. It is pertinent to note that the trial Court held the suit of the plaintiff maintainable without pre-suit statutory notice under section 384 of the said Act, 1948. The trial Court also held that the defendant
-Corporation had no authority to revoke building permit sanction on 1st August 1988. The contention that the building permit dated ::: Downloaded on - 09/06/2013 15:25:36 ::: 6 1.8.1988 was obtained by fraud and in collusion with the officials of the defendant by the plaintiff, was negatived. The contention of the defendant-Corporation that the construction as proposed, was in contravention of the Development Plan of City of Nagpur was also negatived. The Corporation feeling aggrieved by the judgment and decree passed by the trial Court challenged it by means of Regular Civil Appeal No.272/1994 before learned 1st Additional District Judge, Nagpur who, by judgment and order dated 2nd August, 1995 dismissed the same. Hence this instant Second Appeal at the instance of the Corporation.
7. In support of the Appeal, learned Advocate appearing for the appellant Mr C S Kaptan invited my attention to the substantial questions of law formulated by this Court ( supra) and submitted that the trial Court as well as first Appellate Court were in error of law in holding that the building plan permit dated 1.8.1988 cannot be withdrawn or revoked by the defendant-Corporation and also in granting permanent injunction to restrain the defendant from withdrawing or revoking the said building building permit. Learned counsel made reference to the ruling in City of U P & others vs. Maharaja Dharmander Prasad Singh & others reported in (1989) 2 SCC 505;in order to submit that though the power to grant building ::: Downloaded on - 09/06/2013 15:25:36 ::: 7 permission includes the power to revoke or cancel the same, even in the absence of any other expressed statutory provision in that behalf.
It is submitted by the learned Counsel that at the most the plaintiff could have insisted upon compliance of the principles of natural justice before building permit granted can be cancelled or revoked. He made a reference to paragraph 54 in the ruling cited supra, in which the observations are made as under :-
"54.
igIndeed, the submissions of Shri Thakur on the point contemplate the exercise of the power to cancel or revoke the permission in three distinct situation. The first is where the grant is itself vitiated by fraud or misrepresentation on the part of the grantee at the time of obtaining the grant. To the second situation belong to the class of cases where the grantee, after the grant violates the essential terms and conditions subject to which the grant is made. In these two areas, the power to grant must be held to include the power to revoke or cancel the permit, even in the absence of any other express statutory provisions in that behalf.
There must, of course, be the compliance with
the requirements of natural justice and the
grounds must be such as would justify such
drastic action. This cancellation is a preventive step. The one aspect of the remedial measures is set out in Section 27 of the Act. There may be cases of third kind where the grant may be voidable at the instance of the Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission."::: Downloaded on - 09/06/2013 15:25:37 ::: 8
Mr.Kaptan, learned counsel for the appellant, further made reference to Section 21 of the General Clauses Act, 1897 which reads thus:
" 21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws: Where by any (Central Act) or Regulation, a power to ( issue notifications), orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions ( if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so ( issued)."
Mr Kaptan submitted that it was well within the power and competence of the Corporation to revoke or cancel building permit granted. He also made reference to Section 21 of the Bombay General Clauses Act, 104 : which is couched in the following terms:
21. Where, by any Bombay Act ( or Maharashtra Act), a power to issue notification,m orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions ( if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued."
::: Downloaded on - 09/06/2013 15:25:37 ::: 9Mr. Kaptan, submitted that when power has been granted statutorily in favour of the Municipal Corporation to issue any order or grant of permission to consider building in accordance with the rules or by- laws, then that power includes the power exercisable in the like manner and subject to the like sanction and conditions to add, amend, vary or rescind any such order which was granted.
8. Per contra, on behalf of Respondent, it is submitted that the Municipal Corporation had failed to prove fraud, misrepresentation, deceit and collusion etc. for obtaining building permit and, therefore, the Municipal Corporation was not entitled to revoke the building permit. Therefore, the trial Court as well as first Appellate Court rightly decided the suit in favour of the plaintiff by granting declaration as also injunction as prayed for. It is also contended that the issue of sanction being contrary tot he Development Plan was agitated in Writ Petition No.2288/1990 decided on 21.2.1991 when Division Bench of this Court in its collective wisdom ( HD Patel M B Ghodeswar, JJ) held that building permit bearing No. 232/ EPR /3 dated 1.8.1988 issued by the Corporation was not in contravention of the Development Plan of the City of Nagpur.
9. Considering the provisions of General Clauses Act pointed out before me as also ruling in State of UP vs. Maharaja Dharmander ::: Downloaded on - 09/06/2013 15:25:37 ::: 10 Prasad Singh ( supra ), it does appear that grant of permission does not result in exhaustion of the power itself but comprehends incidental or supplemental power to revoke or cancel the permission granted. At the most, the plaintiff can insist on the compliance of the principles of natural justice before a drastic action of revocation of building plan is to be adopted by the Municipal Corporation against the plaintiff for construction made prior to conditions of the building permission.
Therefore, the Courts below fell in error in law in coming to the conclusion that the Municipal Corporation cannot revoke the building plan for any reason and in any circumstance whatsoever. The declaration in blanket terms prohibiting the Municipal Corporation from using its statutory powers in accordance with law to grant , revoke or cancel the building permission would have the effect virtually to nullify powers which are available statutorily to the Commissioner of Municipal Corporation. Learned Counsel Mr Kaptan rightly pointed out that statutorily under section 348 (5) of the Act of 1948 the Commissioner can revoke or suspend any licence or written permission granted under the Act of 1958 or under any rules or bye-laws made therein.
For the reasons stated herein-above, the first substantial question of law must be answered in the affirmative.
10. The next substantial question of law formulated is as to ::: Downloaded on - 09/06/2013 15:25:37 ::: 11 whether in a suit for permanent injunction to restrain the Municipal Corporation from revoking the plan is maintainable, Mr Kaptan, contended that the City of Nagpur Corporation is a "public authority "
statutorily empowered to perform certain acts or functions in the interest of the planned development of city of Nagpur a also to do certain acts in the public interest as also competent Local Authority. He submitted that in any proposed or intended suit to prohibit the Municipal Corporation from doing certain act, suit ought to have been held not maintainable. On behalf of the respondent, it is contended that Municipal Corporation is not entitled to revoke the permit unless it has been obtained by fraud, misrepresentation or collussion etc, which was not proved in the case and, as such, the plaintiff was justified in order to protect their legal right to occupy the land on lease-hold basis. The remedy by way of suit was available to the plaintiff and suit was, therefore, maintainable. Having examined this contention I think right to file a suit to protect one's legal right and to pray for incidental or consequential reliefs is permissible in view of the provisions of Specific Relief Act, therefore, it must be held that suit was maintainable, consequently, the substantial question of law No 2 must be answered in the affirmative.
11. The next contention of the learned counsel Mr Kaptan is that ::: Downloaded on - 09/06/2013 15:25:37 ::: 12 the pre-suit statutory notice as required under section 384 of the Act of 1948 was not issued by the plaintiff to the defendant before the suit was filed. It is true that when any plaintiff wants to institute a suit against the Corporation for an any act done in pursuance or excuse or intended execution of the act or in respect of any alleged neglect or default in the execution of the act or any rule or bye- law made therein such pre-suit statutory notice is required to be given mentioning particulars of the cause of action, name and address intending plaintiff or his Advocate as also relief which plaintiff is intending. The purpose of statutory requirement is to provide opportunity for the Corporation to make sufficient amendment before the suit may be instituted. Thus, if it is suit for damages claimed against the Corporation, the Corporation is entitled to make amends by depositing sufficient sum of money with costs to get rid of such suit as upon such deposit of sufficient money with costs, the suit may be dismissed. The legal notice is required when the plaintiff is intending to challenge any act done in pursuance of or in execution or in any intended execution of the act or in respect of any alleged neglect or default in execution of the Act. Learned Counsel for the respondent relied upon the ruling in Khairunissa vs. Municipal Corporation reported in 1966 Mh.L.J. 810, by the Division Bench of this Court, ::: Downloaded on - 09/06/2013 15:25:37 ::: 13 to urge that the provisions regarding requirement of pre suit statutory notice has the effect to restrict a citizen to avail the right to approach the Court of law in the usual way, therefore, such provision shall be strictly construed. In that case, it was held that an application u/s 110 of the Motor Vehicles Act is not a suit as contemplated under section 527 of the BMC Act and, therefore, pre suit statutory notice was held not necessary before institution of the application.
12. Considering the nature of the present suit and reliefs prayed for in the nature of prevention or intended act on behalf of the Municipal Corporation, in other words, it was not suit instituted in respect of any act done but apprehended to be done by or on behalf of the Municipal Corporation, therefore, the suit in the facts and circumstances of this case, pre suit statutory notice as required under section 384 of the Act, 1948 was not necessary before the institution of the suit against an apprehended injury. The substantial question is answered accordingly.
13. In view of the answer in respect of substantial question of law No. (i) having held that the Courts below were in error in declaration that the Municipal Corporation can not revoke, vary, rescind and in any circumstance whatsoever, I think the impugned judgments and orders passed by the first Appellate Court and trial Court are ::: Downloaded on - 09/06/2013 15:25:37 ::: 14 required to be set aside. The same are set aside. The decree stands modified as under :
In the event the Nagpur City Municipal Corporation is intending to revoke or cancel building permit No.232/EPR/3 dated 1.8.1988 an opportunity of hearing to the plaintiff be granted before taking drastic decision for revocation/ cancellation or withdrawal of building Permit dated 1.8.1988.
There shall be no order as to costs in the facts and circumstances of the case. Second Appeal is disposed of accordingly.
JUDGE sahare ::: Downloaded on - 09/06/2013 15:25:37 :::