Civil Lines vs Maharaja Dharmander Prasad Singh ...
2009 Latest Caselaw 112 Bom

                                                                 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





    ------------------------------------------------------------------------------------------------------------

                                                            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 :

" (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-

hold 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

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

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

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

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."

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."

Mr. 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

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

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

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,

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

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