Satish Padmakar Takle And Anr. vs Nagpur Municipal Corporation ...
2002 Latest Caselaw 468 Bom

JUDGMENT

J.P. Devadhar, J.

1.This public interest litigation is filed by the petitioners under Article 226 of the Constitution of India, inter alia, seeking a writ directing Nagpur Municipal Corporation and Nagpur Improvement Trust 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 contrary to the development plan sanctioned by the State Government under the Maharashtra Regional and Town Planning Act, 1966.

2. Before setting out the facts relevant for the present petition, it will be useful to refer to the background pertaining to the development of the present day 'city of Nagpur' situated at the very heart of India and which is the second capital of the State of Maharashtra.

3. In the year 1936, the Nagpur Improvement Trust Act was enacted with a view to make provisions for the improvement and expansion of the then town of Nagpur in the manner specified under the Nagpur Improvement Trust Act, 1936 (for short, '1936 Act'). Under the 1936 Act a Trust was constituted and the said Trust was empowered to frame various improvement schemes specified under section 27 of the 1936 Act for any area and on such scheme being sanctioned by the State Government, the Trust was to implement the scheme, if necessary by acquiring the land as contemplated under the 1936 Act.

4. 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 Trust constituted under the 1936 Act shall in the city of Nagpur continue to exercise the powers and perform duties conferred and imposed under the Trust 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 Trust 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 Nagpur Improvement Trust ('N.I.T.' for short) constituted under the 1936 Act were entrusted with the responsibility of the orderly development of the city of Nagpur.

5. 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 and the development and use of lands in the regions established for that purpose and for the construction of Regional Planning Boards thereof for creation of new towns by the developmental authorities. Section 2(15) of the T.P. Act defines the local authority, means inter alia, the N.M.C. under the Corporation Act, 1948 and the N.I.T. constituted under the 1936 Act, who, 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', means a local authority and 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 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 a proposal for allocating the use of land for the purposes, such as residential, industrial, commercial, agricultural, recreational and proposals for designation of a land for public purposes, such as schools, colleges and other educational institutions, medical and public health institution, market, social welfare and cultural institutions, theater 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 Act provides for modification of the draft plan on receiving objections and suggestions from the general public. Section 31 of the Act provides for sanction to the development plan by the State Government and on the final development plan coming into force it is binding on the Planning Authority and no development in the said region can take place without the permission of the Planning Authority. Section 42 of the Act provides that on the coming into operation of any plan or plans referred to therein, 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. Chapter IV 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 after the date on which a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town is published, no change in the user of the land or development can take place without the permission of a Planning Authority in view of section 43 of T.P. Act except which are permitted under proviso appended thereto.

6. By a notification dated 6-10-1967 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. 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. It is only on 27-2-2002 the State Government has rescinded/withdrawn the said notification dated 6-10-1967 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, during the period from 1967 till 2002, the N.I.T. being the Planning Authority for the city of Nagpur, was duty bound to prepare draft development plan and on sanction by the State Government, to implement the sanctioned development plan and monitor development of the city of Nagpur. The incidental permission that could be granted by the N.M.C. under the Corporation Act had to be in consonance with the draft development plan/sanctioned development plan.

7. In accordance with the aforesaid provisions, the N.I.T. on 12-12-1972 published draft development plan of the city of Nagpur and the same was published in the Government Gazette on 28-12-1972. After considering the objections and suggestions, modifications to the draft development plan were made on 20-10-1973 and the same were published on 17-1-1974. 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 23-10-1974. 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 3-6-1976.

8. Now turning to the facts of the present case, the petitioners claiming to be the members of respondent No. 4-Gorakshan Sabha have filed the present petition seeking direction to the Corporation and the N.I.T. to remove the structures standing on Survey No. 471 (now 301) of mouza lendhra owned by respondent No. 4-Trust as the same are contrary to the building regulations and final development scheme framed under the T.P. Act.

9. Shri Deshpande, learned Counsel appearing on behalf of the petitioners, submitted that by a gift-deed dated 16-7-1900 one Shri Dhondiba Diwadkar had donated the field bearing Survey No. 471 (now 301), admeasuring 18.25 acres, situated at mouza lendhra, Tahsil and District Nagpur, for the purpose and use of respondent No. 4 Gorakshan Sabha. It is the case of the petitioners that the respondent No. 4 has been utilising the said land all along for the purposes of grazing of cows of the Trust and for similar other purposes including agriculture. However, in the year 1967 the respondent No. 4 got the user of the said land converted for non-agricultural/residential purposes. According to the petitioners, the Sub-Divisional Officer, ('S.D.O.' for short) Nagpur, while granting permission on 15-6-1967 to convert the user of the land for residential purposes, inter alia laid down certain conditions, namely that the layout of the land should be got approved from N.I.T., that the diverted land should be developed with the sanction of N.I.T. and according to the rules and conditions laid down by the Trust, that no plots will be sold unless the development of the land is complete in accordance with the terms imposed by the N.I.T. and to the satisfaction of the authorities of the N.I.T.

10. It is the case of the petitioners that conversion of agricultural lands into non-agricultural/residential purposes was itself in breach of the terms of the gift-deed and respondent No. 4 committed further breach in letting out various plots in the said land on lease to various persons in violation of the conditions laid down by the S.D.O. while permitting change of user of the land. It was submitted that the lands in question were shown in the 1976 sanctioned development plan map as reserved for public institutions, education institutions, health institutions and offices, and hence no development could be permitted by the Planning Authority (N.I.T.) contrary to the sanctioned development plan and it was the bounden duty of the N.I.T. to oversee that the development of the area takes place according to the sanctioned plan. It was submitted that the respondent No. 4 got the layout sanctioned from the N.M.C. in respect of plot in question and other respondents on obtaining lease of smaller plots from the respondent No. 4 got the building plans sanctioned from the N.M.C. instead of N.I.T. the Planning Authority. During the period from 1973 to 1980 the respondent No. 4 let out small plots in the said layout to respondents Nos. 5 to 11, 15 and 16 on lease for the periods ranging from two to three years. According to the petitioners, the respondents No. 6, 7, 9 and 11 constructed semi permanent structures on the said land and are carrying on their business of motor car repairing and servicing. Respondent No. 11 has erected a permanent structure on the land in question and is using it as petrol pump to supply petrol and diesel. Respondent No. 15 has constructed a semi permanent structure in the shape of godown which is being used for storing gas cylinders, empty as well as filled ones. The respondents Nos. 5 and 7 have also constructed a permanent structure and are running a hospital and clinic respectively. It was submitted that action of respondent No. 4 in letting out the plots for commercial exploitation by the third parties was in gross violation of the gift-deed and the conditions laid down by the S.D.O. while granting permission for change of user and also in violation of the development plan itself. It was submitted that respondent Nos. 1 and 2, who have not taken any step to implement the final development scheme sanctioned in 1976, should be directed to demolish the entire unauthorised construction carried out in the plot belonging to respondent No. 4. It was submitted that respondent No. 4 being a public Trust, it was the statutory obligation on the part of the trustees of respondent No. 4 to promote the obligation cast upon them under the gift-deed and it was the public duty on the part of the trustees of respondent No. 4 to develop the property in accordance with the sanctioned plan. In this view of the matter, it was submitted that appropriate directions be issued to respondent No. 4 not to lease or in any manner dispose of the plots in the lay out to anybody except public institutions for being used for public purposes.

11. Mr. Samarth, learned Counsel for respondent No. 1 Corporation, submitted that the Corporation being Planning Authority within the meaning of section 2(19) of the T.P. Act, the sanction of the layout and the building proposals granted by the Corporation to the plot of respondent No. 4 was justified. It was submitted that even though N.I.T. was the authorised Planning Authority under the T.P. Act, both N.I.T. and N.M.C. were granting development permissions in their respective areas as per the Development Control Rules ('D.C. Rules' for short) framed by each of them. It is only on 1-1-1993 the State Government directed that the draft bye-laws published by N.M.C. will not be operating and N.M.C. like N.I.T. should follow the provisions of draft D.C. Rules and building bye-laws prepared by the N.I.T. until further orders. It was submitted that the layout/building proposals sanctioned by N.M.C. prior to 1-1-1993 cannot be faulted and the Corporation has already demolished the structures standing on the plot in question which were found to be unauthorised and contrary to the permission granted by the Corporation. It was submitted that the petitioners have merely relied upon the development plan map and have not shown any proposal made by N.I.T. in the draft development plan submitted to the State Government wherein they have intended to convert the lands of respondent No. 4 from "residential" to "public institution". In the absence of any such proposal, mere zoning shown in the sanctioned development plan map would not have any efficacy. It was submitted that the term "public institution" is a vague term and merely showing an area in the map as reserved for public institution without specifying as to what the term is, would not have any efficacy for that term. It was submitted that although the plot bearing No. 471 (now 301) belonging to respondent No. 4 was shown in the development plan map as reserved for public institution, there was no provision during the period from 1976 to 1-1-1993 to sanction the development permission as per the D.C. Rules framed by the Corporation. It was submitted that as per the draft D.C. Regulation 2000 for city of Nagpur published under section 30(1) of the T.P. Act, a portion of the land belonging to respondent No. 4 has been shown to be reserved in public/semi public zone wherein hospital, dispensary and Mangal Karyalaya are permitted. It was submitted that while deciding the above writ petition, these subsequent facts will have to be taken into consideration and in view of the present D.C. Rules permitting petrol pump, Mangal Karyalaya, it cannot be said that the permissions granted by the Corporation were contrary to the development plans and in any event in view of the present D.C. Regulations permitting such construction on the lands belonging to respondent No. 4, no action be taken in the matter.

12. Mr. Mishra, learned Counsel for N.I.T., submitted that any building construction approved by the local authority has to be in consonance with the use set out in the development plan. It was submitted that the draft development plan submitted by the N.I.T. to the State Government included proposals for reserving the lands of respondent No. 4 for public institutions. To a specific query of the Court, as to whether the permissions granted by the Corporation for development on the plot belonging to respondent No. 4 were in accordance with the development plan, the Counsel for the N.I.T. submitted that the N.I.T. has no control over the building regulations framed by the Corporation and since the permissions for construction have not been granted by the N.I.T., they have not applied their mind about the construction activities in the plot belonging to respondent No. 4. It was submitted that since 1936 till date the N.I.T. has sanctioned several schemes and the N.I.T. has overseen only those schemes which were sanctioned by the N.I.T. It was submitted that although it was the duty of the N.I.T. to see that the development of the 'city of Nagpur' was in accordance with the development plan, it has not applied its mind regarding the constructions put up by respondents No. 5 to 31 by obtaining permissions from the Corporation.

13. Mrs. Khade, learned Counsel appearing for Deputy Director of Town Planning, submitted that the N.M.C. should not have approved the layout and building proposals submitted by respondents No. 4 to 31 without the approval of N.I.T. It was submitted that even though the Corporation has sanctioned the layout and building proposals contrary to the sanctioned development plans, it was obligatory on the part of N.I.T., being authorised Planning Authority, to see that no construction activities are carried out contrary to the sanctioned development plan. It was submitted that since the building permits were granted to the respondents at the risk of the applicants in all respects, the construction put up pursuant to such building permits being unauthorised and contrary to the development plan, are liable to be demolished.

14. Shri Gordey, learned Counsel, for respondent No. 4 submitted that the jurisdiction of N.I.T. as a local authority was restricted to the area under its jurisdiction and since plot No. 471 belonging to respondent No. 4 was not within the jurisdiction of N.I.T. as a local authority, it would not have jurisdiction in respect of the said plot as a Planning Authority. It was submitted that even if N.I.T. was a Planning Authority for the lands in question, before submitting the draft development plan it was obligatory on the part of the Planning Authority to take into account the existing user of the land and prepare the land used map accordingly. By referring to a booklet entitled 'Development Plan of Nagpur' published by the N.I.T. sometime after 1991 (page 61 of the compilation) it was submitted that in the draft development plan published by the N.I.T. in the year 1972, the existing user of the land belonging to respondent No. 4 was shown as "residential" and if the N.I.T. wanted to change the user in the draft development plan from "residential" to "public institutions" then it should have been notified and objections ought to have been invited. It was submitted that neither N.I.T. nor the State Government have issued any notification to that effect and, therefore, merely on the basis of the sanctioned map it cannot be said that the said lands were reserved for public institutions.

15. In view of this controversy regarding the factual position, we called upon the N.I.T. to explain its stand by filing an additional affidavit. Shri Mishra, learned Counsel for N.I.T., as per the directions of the Court, filed additional affidavit of Shri M.A. Tallewar, Asstt. Town Planner, N.I.T. dated 2-4-2002 stating therein that the contents of the booklet published after 1991 regarding existing land user vis a vis Survey No. 471 (now 301) was incorrect and the draft development plan sent by the N.I.T. to the State Government, in the year 1974 contained proposal reserving the land of respondent No. 4 for public institutions. Thus, it is clear that under both the draft development plan submitted by the N.I.T. in the year 1974 and the sanctioned development plan in 1976 the lands of respondent No. 4 were reserved for public institutions only.

16. Counsel for the respondent No. 4 further submitted that as per the booklet published by the N.I.T., (page 59 of the compilation) the N.I.T. on 17-1-1974 had modified its draft development plan showing the land up to Gorakshan premises reserved for commercial purposes. According to the learned Counsel, the words "land up to Gorakshan premises" includes the land of Gorakshan Sabha, i.e. the land belonging to respondent No. 4. It was therefore, submitted that when the draft development plan submitted by N.I.T. showed that the lands in question were to be used for residential/commercial purposes then in the absence of any contrary intention expressly indicated by the State Government, the lands could not have been shown in the final sanctioned plan as designated for public institutions. In any event, it was submitted that as per the revised development plan for the city of Nagpur published on 7-1-2000 & 10-9-2001, the plot of land belonging to respondent No. 4 has been designated as "public and semi public zone" and the note appended to Appendix 'M' to the draft D.C. Regulations 2000 for Nagpur city, published by the Government of Maharashtra, permits commercial user on the said lands as per the limits prescribed therein. It was submitted that taking into account the totality of the circumstances, the planning authorities be directed to find out whether the user of the land belonging to respondent No. 4 is as per the present sanctioned plan and the draft development Regulations published by the Government and action be taken only if they are contrary to the present sanctioned plan. It was submitted that there may be deviation of the user of the land by the lessees, but that does not itself make the layout illegal. It was submitted that if the tenants have breached the user of the land and if the construction is contrary to the sanctioned plan, then only it may be demolished and not otherwise. As regards the locus standi of the petitioners, it was submitted that the private dispute, if any, between the donor and the donee of a public Trust cannot be agitated in a writ petition as a public interest litigation. It was submitted that even if there was breach of the provisions of the gift-deed, the remedy was to move the Charity Commissioner and not to file a writ petition. Accordingly, it was submitted that there is no merit in the petition and the same is liable to be dismissed.

17. Shri Choudhary, learned Counsel, appearing on behalf of respondent No. 5 submitted that his client has constructed a charitable hospital and is extending medical facility to one and all in a building constructed as per the sanctioned plan. According to the Counsel, the building plans were approved even before the draft development plans were sanctioned by the State Government. It was submitted that under the 1976 development plan as well as the present revised development plan sanctioned in 2000-2001 the hospital buildings were permissible as public and semi public purpose. It was submitted that even though the structure of respondent No. 5 was used for the purpose set out in the development plan, the respondent No. 5 has been unnecessarily added as a party respondent to the petition. It was submitted that a portion of the premises belonging to respondent No. 5 which were in existence even before the draft development was published, has been wrongly demolished by respondent No. 1 in December, 2001. Thus, it was submitted that there is no contravention committed by respondent No. 5 and hence the petition against respondent No. 5 be dismissed with costs.

18. Shri S.V. Manohar, learned Counsel, appearing on behalf of several contesting respondents, while adopting the arguments of learned Counsel for respondent No. 4, submitted that from the revised development plan sanctioned by the State Government on 10-9-2001 for the city of Nagpur, it can be seen that the N.I.T. had proposed only a portion of Survey No. 471 (now 301) as reserved for public institutions. According to the learned Counsel if the lands were already shown as reserved in 1976 plan for public institutions, then the question of N.I.T. proposing reservation of a portion of the land for public institutions in the year 2001 would not arise at all. Thus, according to the learned Counsel, in 1976 Development Plan the lands in question were not reserved for public institutions and it is only in the revised draft development, the N.I.T. proposed that a portion of the said land be reserved for public institutions. The said proposal was turned down by the State Government and the lands were directed to be reserved for public and semi public purposes. It was submitted that the N.I.T. had no jurisdiction to frame development plan for the entire city of Nagpur and the jurisdiction of N.I.T. was restricted to the area under its jurisdiction. It was submitted that as per the building bye-laws of the Corporation which came into force in the year 1965, the layout could be sanctioned only for residential and commercial purposes and there was no provision for sanctioning of a layout of public institutions. It was submitted that the term 'public institutions' has not been defined either under the 1936 Act or under the Corporation Act and there being no building bye-laws framed either by N.I.T. or N.M.C. to sanction layout for public institutions, it could not be said that there was any reservation for public institutions under 1976 Development Plan. It was submitted that under section 22(a) of the T.P. Act there was no allocation specified for use of land under the head 'public institutions' and, therefore, under section 22(b) of the T.P. Act the lands could be specifically reserved for public purposes set out therein. It was submitted that the N.I.T. had no jurisdiction to submit the development plan for the entire city of Nagpur and in any event, in the absence of specified public purposes set out in the draft development plan, the sanctioning of the same by the State Government for public institutions was illegal. It was submitted that in the year 2001 common building bye-laws have been framed by the Government under which public and semi public zone has been defined (M-7 of Appendix 'M'). Hence, it was submitted that prior to 2001 when there was no provision in the building bye-laws for sanctioning approval for public institutions, it could not be held that the lands were reserved for public institutions. It was submitted that the N.I.T. has in its affidavit stated that it had no intention to acquire the land and hence designation of the land in 1976 development plan for public institutions has lapsed as per the provisions of section 127 of T.P. Act and hence the respondents are entitled to use the land for the purpose for which the adjoining lands are permitted to be used. As regards the locus standi of the petitioners, it was submitted that the petition suffers from gross delay and laches. It was submitted that the development of the plot in question took place in the year 1973 to 1980 and the present petition has been filed belatedly in the year 1984. It was submitted that the inordinate delay on the part of the petitioners in filing the aforesaid petition is fatal and the petition is liable to be dismissed on that ground alone. It was submitted that making similar allegations against respondent No. 4 some persons had moved the Charity Commissioner in the year 1983, but the Charity Commissioner turned down those allegations. Having failed in their mission, those persons moved this Court by way of Writ Petition bearing No. 2137 of 1983 wherein the issues were settled mutually and the said writ petition was disposed of in terms of undertaking given by respondent No. 4. Thereafter, the present writ petition has been filed with ulterior motives. Thus, according to the learned Counsel, the petitioners have no locus standi and the petition suffers from gross delay and laches and hence the same is liable to be dismissed. It was submitted that the development of the plot or Survey No. 471 (now 301) has been done in accordance with the sanctioned building plan and even if the said structures were not as per 1976 development in view of the present revised development plan sanctioned by the State Government in 2000-2001, no action be taken in respect of the said structure as they fall within 'public/semi public zone' under the present development plan.

19. Shri Kukday, learned Counsel appearing for respondent No. 11, while adopting the arguments of the learned Counsel appearing for other respondents, submitted that the petrol and diesel filling station has been installed by his client after obtaining all the necessary permission. According to the learned Counsel, petrol and diesel filling station is a public utility service and hence there is no merit in the present petition. It was submitted that during the pendency of the present petition the Corporation had issued notice on 18-7-2000 calling upon respondent No. 11 to remove the unauthorised structure within seven days and hence respondent No. 11 was constrained to file Writ Petition No. 2631 of 2000. Since the said writ petition is heard along with the present petition, it was submitted that the decision in this writ petition would be applicable to the case in Writ Petition No. 2631 of 2000.

20. Shri Bhangde, learned Counsel appearing on behalf of respondent No. 17 while generally adopting the arguments of the learned Counsel appearing for other respondents, differed with them on the issue pertaining to the jurisdiction of N.I.T. under T.P. Act. According to him, all the local authorities set out under section 2(15) of the T.P. Act could exercise the powers of a Planning Authority only when the State Government issues notification to that effect. During the period from 6-10-1967 till 2001 the N.I.T. was the only local authority empowered by the State Government to exercise the powers of a Planning Authority over the area under its jurisdiction. According to the learned Counsel, a reading of section 1(2) read with section 52 of 1936 Act clearly show that the jurisdiction of the N.I.T. was to the entire city of Nagpur and hence the N.I.T. was the Planning Authority for the entire city of Nagpur. According to the learned Counsel, the N.I.T. had jurisdiction to submit draft development plan for the entire city of Nagpur and the same has been rightly sanctioned by the State Government. According to the learned Counsel, even if there is any discrepancy in the construction put up on the plot in question, it is just and proper that while deciding the present petition, this Court be pleased to take into account the revised sanctioned development plan published by the State Government in the year 2001.

21. Having heard the Counsel on both the sides and after carefully considering the material placed before us, we are of the opinion that the development carried out on the plot belonging to respondent No. 4 are in gross violation of the sanctioned development plan of 1976. Under the T.P. Act, once the draft development plan was published by the N.I.T. in the year 1974 for the city of Nagpur as Planning Authority, no development could take place on the said plot contrary to draft development plan. The N.M.C. could not have granted building permits contrary to the draft development plan when the land in question was shown reserved for public institution. Even if the N.M.C. had granted building permits contrary to the sanctioned development plan dated 3-6-1976, it was obligatory on the part of the N.I.T., being the Planning Authority, to take appropriate steps so that the development of the city of Nagpur takes place in accordance with the sanctioned development plan. Both, the N.M.C. and the N.I.T. failed in performing their statutory obligation cast upon them under the T.P. Act. Although under the T.P. Act, both N.M.C. and N.I.T. being local authorities could be planning authorities, in view of the notification dated 6-10-1967 issued by the State Government, it was only the N.I.T. which was empowered as Planning Authority under the T.P. Act to prepare draft development plan for the city of Nagpur and on it being sanctioned by the State Government, it was obligatory on the part of the N.I.T. to implement the same as per the sanctioned plan. In spite of the draft development plan prepared by the N.I.T. for the city of Nagpur was sanctioned by the State Government with minor modification in the year 1976, the N.M.C. totally disregarded the sanctioned development plan and purported to sanction the layout and granted building permits on plot Survey No. 471 (now 301) belonging to respondent No. 4. Even the N.I.T. being the authorised Planning Authority did not bother to check the illegal constructions which were carried out on plot bearing Survey No. 471 (now 301) in contravention of the sanctioned development plan. During the course of arguments, the Counsel for N.I.T. informed us that the N.I.T. supervised only the developments in such areas over which it had control and in this case since the layout/building proposal were approved by the N.M.C., the N.I.T. has not taken any steps to monitor the building activities on the plot belonging to respondent No. 4. This gross inaction on the part of the N.I.T., in our opinion, tantamounts total abdication of statutory duty which was cast upon them under the T.P. Act. Having framed the development plan for the city of Nagpur and on it being sanctioned by the State Government the N.I.T., as Planning Authority, could not wash off its hands by stating that since the N.M.C. has granted building permits contrary to D.C. Regulation, it is for the N.M.C. to take remedial steps. This attitude on the part of N.I.T. shows total callousness with which the N.I.T. as Planning Authority monitored the development of the city of Nagpur under the T.P. Act.

22. It is admitted by respondent No. 4 Gorakshan Sabha that the total area owned by it in Survey No. 301 is 31,363.12 sq.mtrs. The said lands were converted from the agricultural use to non-agricultural use on 15-6-1967 with certain conditions. Out of 31,363.12 sq.mtrs. land, 19,522.437 sq.metrs. of land were converted into layout by the N.M.C. vide sanction order dated 28-8-1980 and 9-9-1980. It is stated that an area of 3,433,02 sq.mts. are earmarked for internal road. Thus, out of total area of 31,363.12 sq.mtrs. in Survey No. 301, the respondent No. 4 is using only 8,407,663 sq.mtrs. and most of the balance lands have been given on lease to third parties. Although the lease-deeds executed by respondent No. 4 with the third parties, who are impleaded as respondents in this petition, are termed as temporary leases of eleven months duration, the terms of the lease-deed which permits uninterrupted user of the land by the lessees for a period of five years clearly show that there were permanent alienation of the property in contravention of the clauses of the gift deed and the purpose of the trial. Besides this, the conditions granting conversion had been violated inasmuch as the layout was not got approved by N.I.T. as required thereunder. The persons who had taken the plots on temporary lease basis from respondent No. 4 had approached the N.M.C. and on obtaining the building permits have put up construction on their respective plots. It appears that some of the respondents had put up structures without the building permit of N.M.C. or in excess of the building permits granted and the N.M.C. has taken steps to demolish the said unauthorised structures.

23. At the hearing of this writ petition, a chart enumerating various structures put up by the respondents/plot holders was produced before us. From the said chart, it is seen that several buildings have been constructed on the plot of respondent No. 4 and the same are being used for private hospital, clinic, Mangal Karyalaya, automobiles, auto works, arts and plastic industries, storage godown for gas and domestic appliances and several other purposes. None of the constructions put up on the plot belonging to respondent No. 4 can be said to be 'public institutions' as contemplated under the development plan of 1976. There is no dispute that before the developmental activities on the said lands commenced, the draft development plan was already published by N.I.T. and as per the provisions of the T.P. Act no development on the said plot of land could be permitted contrary to the draft development plan wherein the said lands were reserved for public institutions. Therefore, private hospital, clinic, Mangal Karyalaya and other activities carried on in the plot belonging to respondent No. 4 cannot be said to be public institutions thereunder. These respondents, although cater to the needs of the general public, cannot be said to be public institutions. Therefore, there is no merit in the contention of the respondents that in the absence of the definition of the word 'public institutions' in the sanctioned development plan of 1976, the same cannot be implemented. As stated herein above, the draft development plan submitted by the N.I.T. and approved by the State Government specifically earmarked the lands of respondent No. 4 for public institutions. A controversy as to what exactly the word 'public institutions' means would have arisen if an application for putting a public institution on the plot of respondent No. 4 was rejected by the Planning Authority on the ground that it was not a public institution. In the instant case, no such application was made to the N.I.T. which was the Planning Authority. Instead the applications were made to the N.M.C. and the N.M.C. simply granted the layout/building permits as per its building bye-laws totally ignoring the sanctioned development plan. By no stretch of imagination, the private individuals or firms putting up construction and carrying on commercial activities on the said plot can be said to be public institutions as contemplated under the sanctioned development plan.

24. The conversion of the said land from agricultural to non-agricultural purposes were permitted by the S.D.O. on 15-6-1967 on the specific condition that the layout of the land should be got approved from the N.I.T. and the development of the lands should be on obtaining sanction from the N.I.T. In this case, neither the layout nor the development plan is sanctioned by the N.I.T. What is sanctioned by N.M.C. is in total contravention of the development plan framed by the N.I.T. and sanctioned by the State Government. The contentions of the respondents that the N.I.T. had no jurisdiction to frame the development plan for the entire city of Nagpur is without any merit. The Act of 1936 read with T.P. Act, 1966 make it abundantly clear that the jurisdiction of N.I.T. was over the entire city of Nagpur area. Moreover, once the draft development plan framed by the N.I.T. reserving the plot in question for 'public institutions' was sanctioned by the State Government, the development of the city of Nagpur has to be in accordance with the sanctioned development plan and the question as to whether the N.I.T. had jurisdiction to frame the development plan or not becomes wholly irrelevant. As per the draft development plan published by the N.I.T. in the year 1974, the lands in question were reserved for 'public institutions' and the same were sanctioned by the State Government in the year 1976 reserving the said lands for 'public institutions'. The contentions of the respondents that the objections ought to have been invited before earmarking the lands for 'public institutions' or that the N.I.T. itself in the revised development plan had shown the lands up to and inclusive of the land of respondent No. 4 as reserved for commercial purposes, cannot be entertained for the simple reason that the sanctioned plan of 1976 shows the land in question reserved for 'public institutions'. The contentions of the respondents that the word 'public institutions' has not been defined in the Act and there was no provision for sanction of the building proposals of the public institutions is also without any merit. What was contemplated under the development plan was that the lands in question must be reserved for 'public institutions' and the building for public institutions could be sanctioned as per the existing building plans. None of the respondents Nos. 5 to 31 are 'public institutions' and none of the structures and the use thereof put up by respondent Nos. 5 to 31 on the said plot belonging to respondent No. 4 and its user for commercial purposes can be said to be 'public institutions'. Therefore, the structures put up by respondents Nos. 5 to 31 being contrary to the sanctioned development plan, are liable to be held to be unauthorised and illegal.

25. Counsel for the petitioners relying upon the decision of the Apex Court in the case of K.R. Shenoy v. Udipi Municipality, , submitted that the building permits granted by the N.M.C. in contravention of the development plan must be held to be illegal. In that case, the Municipality gave sanction to construct cinema building in a residential area in contravention of town planning and in that context the Apex Court held that where the Municipality acts in excess of the powers conferred by the Act or abuses those powers, then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping the powers which it does not possess. It was held that if sanction is given to build by contravening the bye-laws then the jurisdiction of the Court can be invoked on the ground that the approval by an authority of building plans which contravenes the bye-laws made by that authority is illegal and inoperative. It was held that illegal construction of cinema building materially affects the right to or enjoyment of the property by the persons residing in the residential area and if the development scheme is nullified by arbitrary acts in exercise and derogation of the powers of the Municipality the Court will quash the orders passed by the Municipality in such cases. This decision of the Apex Court squarely applies to the present case and the layout/building permits granted by N.M.C. in contravention of the sanctioned development plan are held to be illegal and inoperative.

26. In the case of Bangalore Medical Trust v. B.S. Muddappa, the Apex Court held that the petition by the inhabitants of the locality challenging the conversion of public park into a private nursing home was maintainable and it was held that the private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park.

27. In the case of Dadar Avanti Co-operative Housing Society Ltd. v. Municipal Corporation of Greater Bombay, the Apex Court was considering a case where a building consisting of ground plus 13 upper floors was constructed by a builder in the year 1979 as per the plan sanctioned by the Municipal Corporation. As per the sanctioned plan, ground floor of the said building was to be used for clinics and garages while the upper floors were to be used for residential purposes. Purchasers of flats Nos. 3 and 4 of the said building wanted to use the said plots for commercial purposes instead of residential purposes. Since the co-operative society objected, the flat purchasers applied to the Executive Engineer, building proposals, seeking change of user of the said flat from residential to commercial. The Executive Engineer rejected the application on the ground that the proposed user was not in conformity with the existing Rules and Regulations. On appeal, the Additional Commissioner granted 'N.O.C.' for change of user from residential to commercial. The society challenged the decision of the Additional Commissioner by way of writ petition which was dismissed by the High Court. On special leave petition, the Apex Court held that the Additional Commissioner as well as the High Court totally erred in law in holding that the Commissioner had power to allow the change of user, even though when the application for change was made the Regulations did not authorise such change of user. It was held that the subsequent Regulation of 1991 which came into force with effect from 25-3-1991 permitting clinics in a residential area up to second floor could not be pressed into service while deciding the legality of the order of the Additional Commissioner passed in 1987. The Apex Court while setting aside the permission granted by the Additional Commissioner for change of user on the ground that the development control regulations prevalent in the year 1987 did not permit such change of user & further held that it would be open to the flat purchasers to move the authority afresh and the said authority may pass appropriate order in accordance with Regulations of 1991 which was said to be in force.

28. In the case of M.I. Builders Pvt. Ltd. v. Radheysham Sahu & others, , the Apex Court while considering the action of the Municipal Corporation in handing over the Jhendawala Park, Lucknow, a park of historical importance located a congested commercial-cum-residential area to a private builder for construction of an air-conditioned underground shopping complex (Palika bazar), held that by allowing construction the Corporation had deprived its residents as also others of the quality of life to which they were entitled to under the constitution and the Act. It was held that the maintenance of the park because of its historical importance and environmental necessity was a public purpose and the decision of the Corporation to permit underground shopping complex was unreasonable, arbitrarily, unfair, opposed to public policy, public interest and public Trust doctrine. It was held that unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. It was further held that while directing demolition of unauthorised construction, the Court should also direct an enquiry as to how the unauthorised construction came and to bring the offenders to book. It was also held that it was not enough to direct demolition of the unauthorised construction where there is clear defiance of law.

29. On behalf of respondent, reliance was placed on the decision of the Apex Court in the case of Forward Construction Company v. Municipal Corporation of Greater Bombay, . In that case, a plot of land was allotted to the Corporation for bus depot and on a portion of the said land falling in a commercial zone, the Corporation decided to have commercial accommodation, which was challenged. In that context the Apex Court held that if in a commercia zone, the Corporation is able to make available accommodation for commercial purposes, there can be no reason why such a venture cannot be one either for the purpose of promoting public policy or in the nature of facilities being made available as a part of improvement of the city. In our opinion, no parallel can be drawn from the said decision because first of all the development of the lands in question is not by or for 'public institutions' and secondly from the facts set but herein above, in the present case substantial portion of the land has been leased away by respondent No. 4 to individuals and partnership firm for commercial purposes and only a small portion of the land has been retained by the respondent No. 4. In the case before the Apex Court, substantial portion of the land was used for bus depot and only a portion of the land was used for commercial purposes which was falling within commercial zone. In the present case, the facts are to the contrary. Therefore, the said decision of the Apex Court does not support the contentions of the respondents. There is also no merit in the contentions of the respondents that the amount received by respondent No. 4 was for the benefit of the Trust and, therefore, the lands should be construed to be used for the benefit of the Trust.

30. The respondents have relied upon the decision of this Court in the case of Chandulal V. Vaidya v. Nasik Municipal Council Borough, reported in 1976 Mh.L.J. 308. In that case the lands were given to the tenants for stacking hay. Thereafter under the sanctioned development plan the lands were reserved for residential purposes. However, even after the sanctioned development plan coming into force, the tenants continued to use the lands for stacking hay. In that context this Court held that at best the tenants can be prosecuted for breach of the scheme for objectionable or unauthorised user of the plot, but that does not mean occupation of the tenants also becomes unauthorised. In the present case, the sanctioning of the layout by the N.M.C. itself was in breach of the conditions laid down by the S.D.O. while permitting change of user of the land. Therefore, if the layout sanctioned by N.M.C. itself was illegal, the plots obtained by the lessees pursuant to such layout and the buildings constructed by them in contravention of the sanctioned development plan must be held to be illegal.

31. The respondents have submitted that the petitioners have no locus standi to file the present petition and that the petition suffers from gross delay and laches. Although the claim of the petitioners that they were members of the respondent No. 4-Gorakshan Sabha, has been denied by respondent No. 4, fact remains that respondent No. 4, being a public Trust, was statutorily obliged to promote the objects of the Trust and it was their public duty to use the plot for the purpose for which it was gifted and that the development of the property was in accordance with the sanctioned plan. If the public bodies fail to perform the public duty cast upon them, the citizens have fundamental right to file writ petition under Article 226 of the Constitution of India seeking enforcement of public duties by such bodies. With the ever growing population and every town/city rapidly over growing, the Government is required to enact suitable laws for the orderly development of the region so as to avoid haphazard growth which will lead to total chaos and disorder. In these circumstances, if the law enforcing agencies and the public bodies fail to perform the public duty cast upon them and permit the development in total contravention of the statutory provisions, the citizens will have a fundamental right to seek a writ direction to the public bodies to perform the public duty. In the instant case, where the development of the plot is in gross violation of the development plan, it cannot be said that the petitioners do not have any locus standi to file writ petition. Equally without force is the argument of the respondents that the petition suffers from delay and laches. The petition cannot be rejected solely on the ground of laches especially when the question of violation of a fundamental right is involved in it. Seeking enforcement of public duty is fundamental right of the citizens and, in this case where the development permitted by the public bodies is in gross violation of the development plan, the petition cannot be dismissed on the ground of delay and laches.

32. Once it is held that the sanctioning of the layout and the building permits granted are in contravention of the sanctioned developments, the structures put up pursuant to such sanction/permission become illegal and unauthorised and are liable to be demolished.

33. Respondents have contended before us that even assuming for the sake of arguments that the development of plot in question is contrary to 1976 plan then in that event in the light of the sanctioned development plan of 2000-01, no action be taken for demolition of such structures. The respondents have relied upon the judgments of the Apex Court in the case of P. Venkateswarlu v. Motor and General Traders, ; S.J. Bagde v. Bhaiyya, and Mathew M. Thomas v. Commissioner of Income Tax, , and contended that while hearing the disposal of the writ petition if any subsequent changes have taken place the same should be taken into consideration. It is contended by the respondents that as per the sanctioned development plan published by the State Government in the year 2000-01 (7-1-2000 & 10-9-2001) drastic changes have been effected and the lands in question which were hitherto reserved for 'public institutions' have now been earmarked for public and semi public institutions and even commercial activities are permitted to the extent specified in the sanctioned development plan and hence the said subsequent development plan be taken into account while disposing of the petition.

34. In this view of the matter and the judgment of the Apex Court in Dadar Avanti Co-operative Housing Society Ltd. (supra), we pass the following order:

(i) The sanction of the layout/building permits granted by the N.M.C. to the plot bearing Survey No. 301 belonging to respondent No. 4 Gorakshan Sabha are unauthorised and illegal and the buildings/structures put up pursuant to such layout/building permits, on the said Plot No. 301 belonging to respondent No. 4 are liable to be demolished.

(ii) Respondents Nos. 4 to 31 may apply within one month from today to the Planning Authority-namely N.M.C. seeking the layout/building permits afresh, if it is permissible under the revised sanctioned development plan of 2000-2001 and the Planning Authority shall consider and dispose of such applications within a period of four months therefrom without fail after hearing all concerned parties including Trust and petitioners.

(iii) In the event of the Planning Authority holding that the existing buildings/structures are not in conformity with the revised sanctioned development plan of 2000-01 then the Planning Authority shall demolish the said structures within two months from the date of disposing of the application, if any, filed by respondents Nos. 4 to 31.

35. We are aware that the N.M.C. which is instrumental in permitting the development on the plot of respondent No. 4 in contravention of the sanctioned development plan of 1976, is now the Planning Authority as per the notification issued by the State Government on 27-2-2002. We hope that the officers of the N.M.C. will rise to the occasion in shouldering the responsibility cast upon them and dispose of the application that may be made by respondents Nos. 4 to 31 in accordance with the sanctioned development plan of 2000-2001. It should not be a case of the hedge or the compound wall meant to protect the grass on the field itself starts grazing.

36. In view of the above, writ petition is allowed. Rule is made absolute in aforesaid terms with costs.