Bombay High Court
Atmaram vs Nagpur Municipal Corporation on 19 November, 2010
Bench: B. P. Dharmadhikari, Prasanna B. Varale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 1980, 1984 and 1989
OF 2010.
.........
WRIT PETITION No. 1980/2010.
1. Atmaram s/o Pinjomal Vazirani,
aged about 58 years, Occ : Business,
r/o. Shree Heera Sweets, NMC House,
No.127, Ward no.45, Old Bhandara
Road, Nagpur - 440002.
2. Chandrashekhar s/o Jhanaklal Saipuriya,
aged about 72 years, Occ : Business,
r/o. Ashish Metals, NMC House
No.150, Ward no.30, Old Bhandara
Road, Nagpur - 440002.
3. Mahendra s/o Sudam Tadghare,
aged about 55 years, Occ : Business,
r/o. Mahendra Jwellery, NMC House
No.152, Ward no.30, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
4. Jeoomal s/o Gurudasmal Manshani,
aged about 55 years, Occ : Business,
r/o. Gurugovind Singh Fabrics, NMC House
No.124, Ward no.45, Ganjakhet Chowk, Old Bhandara
Road, Nagpur - 440002.
5. Pooja w/o Vijaykumar Chelwani,
aged about 40 years, Occ : Business,
r/o. Sunder Hosiery, NMC House
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No.117, Ward no.45, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
6. Tulsi s/o Seoomal Vaswani,
aged about 45 years, Occ : Business,
r/o. NMC House No.137
Ward no.30, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
7. Mohamed Fahim s/o Ajij Khan,
aged about 50 years, Occ : Business,
r/o. Fahim Opticals, NMC House
No.118/B, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
8. Mukesh s/o Jivatram Vazirani,
aged about 32 years, Occ : Business,
r/o. c/o. Bhagwan Fabrics, NMC House
No.137/A/2, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
9. Parmanand s/o Lekhumal Khushalani,
aged about 53 years, Occ : Business,
r/o. Vijay paper Mart, NMC House
No.137/C, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
10. Nasruddin s/o Alibhai Sumar,
aged about 54 years, Occ : Business,
r/o. K. Abdul Malik and Co., NMC House
No.126, Ward no.45, Ganjakhet,
Old Bhandara Road, Nagpur - 440002.
11. Mahesh s/o Shyamramji Bhute,
aged about 48 years, Occ : Business,
r/o. Mahesh Photo Studio, NMC House
No.155, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
12. Ashok s/o Laxmandas Krishnani,
aged about 57 years, Occ : Business,
r/o. Laxmandas Thawardas, NMC House
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No.134, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
13. Baldev s/o Chetumal Kewalramani,
aged about 50 years, Occ : Business,
r/o. C/o. Heera Sweets, NMC House
No.157/A6, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
14. Prabhudas s/o Jagjivandas Dhorajiwala,
aged about 62 years, Occ : Business,
r/o. Dhorajiwala Misthan Bhandar, NMC House
No.129, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
15. Rajesh s/o Chandrabhan Kataria,
aged about 39 years, Occ : Business,
r/o. Gajanan Dresses, NMC House
No.156/A, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
16. Anil s/o Mahadeo Borker,
aged about 45 years, Occ : Business,
r/o. A.K, Enterprises, NMC House
No.153, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
17. Nandlal s/o Mathuradas Makhija,
aged about 63 years, Occ : Business,
r/o. Paradise Hosiery, NMC House
No.127/A and 127/C, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
18. Dilip s/o Pralhad Agrawal,
aged about 38 years, Occ : Business,
r/o. Amita Garment, NMC House
No.131, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
19. Ashokumar s/o Arjundas Sevlani,
aged about 54 years, Occ : Business,
r/o. Hindustan Textiles, NMC House
No.162, Ward no.30,
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Old Bhandara Road, Nagpur - 440002.
20. Hiralal s/o Notandas Kataria,
aged about 65 years, Occ : Business,
r/o. Shankar Hosiery, NMC House
No.163, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
21. Gurbax s/o Pinjomal Vazirani,
aged about 64 years, Occ : Business,
r/o. c/o. Packmate, NMC House
No.156, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
22. Chandrabhan s/o Chelaram Kataria,
aged about 61 years, Occ : Business,
r/o. Laxmi Hosiery, NMC House
No.130, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
23. Harish s/o Ramchandra Karmani,
aged about 35 years, Occ : Business,
r/o. Mukesh Collection/Riya Fabrics, NMC House
No.130, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
24. Khemchand s/o Nandlal Kukreja,
aged about 42 years, Occ : Business,
r/o. Hariom Garments, NMC House
No.133, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
25. Mukesh s/o Motaram Manshani,
aged about 37 years, Occ : Business,
r/o. Sindh Traders, NMC House
No.111, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
26. Smt. Savitri s/o Motaram Manshani,
aged about 55 years, Occ : Business,
r/o. Sindh Hosiery, NMC House
No.118, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
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27. Vijay s/o Nagoraoji Patil,
aged about 36 years, Occ : Business,
r/o. Patil Jwellery, NMC House
No.151, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
28. Gyanchand s/o Virumal Kodwani,
aged about 52 years, Occ : Business,
r/o. Veena S. Agencies, NMC House
No.151/A, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
29. Kamal s/o Murlidhar Adwani,
aged about 35 years, Occ : Business,
r/o. Bharat Garments, NMC House
No.120, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
30. Smt. Babita w/o Shankerlal Chelwani,
aged about 36 years, Occ : Business,
r/o. Mahesh Hosiery, NMC House
No.116, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
31. Harish s/o Sevaram Hasani,
aged about 55 years, Occ : Business,
r/o. Shri Ganesh Textiles, NMC House
No.135, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
32. Prakash s/o Hariram Daswani,
aged about 41 years, Occ : Business,
r/o. NMC House No.158,
Ward no.30, Ganjakhet,
Old Bhandara Road, Nagpur - 440002.
33. Manoharrao s/o Wasudeorao Motghare,
aged about 70 years, Occ : Business,
r/o. NMC House No.143,
Ward no.30, Ganjakhet chowk,
Old Bhandara Road, Nagpur - 440002.
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34. Amar s/o Rochaldas Khemani,
aged about 35 years, Occ : Business,
r/o. Amar Garments, NMC House
No.149/C, Ward No.30,
Old Bhandara Road, Nagpur - 440002.
35. Rajesh s/o Brijkisho Gupta,
aged about 50 years, Occ : Business,
r/o. NMC House No.118/A,
Ward no.45, Old Bhandara Road, Nagpur - 440002.
36. Rakesh s/o Chunnilal Agrawal,
aged about 55 years, Occ : Business,
r/o. A.K.Sales Corp. NMC House
No.1024, Ward no.47,
Old Bhandara Road, Nagpur - 440002.
37. Smt. Kamlesh w/o Rakesh Agrawal,
aged about 50 years, Occ : Business,
r/o. M/s. Firozabad Bengales House, NMC House
No.976, Ward no.49,
Old Bhandara Road, Nagpur - 440002. ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
WITH
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WRIT PETITION No. 1984/2010.
1. Atikabai w/o Taher Bhai Hussain,
aged about 80 years, Occ : Housewife,
r/o. Old Bhandara Road, Itwari, Nagpur.
2. Govindlal s/o Totaram Khungar,
aged about 70 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
3. Ashok s/o Shankarlal Tiwari,
aged about 52 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
4. Jaichand s/o Uttamchand Jain (Modi)
aged Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
5. Kusum w/o Hiraman Khanorkar,
aged Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
6. Manoj s/o Mahipal Jain,
aged about 4 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
7. Darbarilal s/o Kapurchand Jain,
aged major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
8. Ramesh Kumar s/o Kapurchand Jain,
aged major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
9. Pradeep Kumar s/o Gulabchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
10. Anil Kumar s/o Bhagchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
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11. Chetan s/o Natwarlal Patel,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
12. Shabbirbhai s/o Gulam Abbas Patangwala,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
13. Sukhanand s/o Shikharchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
14. Girish s/o Gulabchand Agrawal (Liladiya),
aged about 41 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
15. Ankit s/o Munnalal Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
16. Munnalal s/o Khupchand Jain,
aged about 41 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
17. Mujjaffar Hussain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
18. Govardhan s/o Ramchandra Lakhotia (Daga),
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
19. Babarao s/o Ganpatrao Katole,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
20. Ali Akbar Hajimulla Bande,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
21. Deepak s/o Shantilal Doshi,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
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22. Bhavna w/o Rajesh Ahuja,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
23. Pradeep s/o Thakordas Topiwale,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
24. Taha Akhtar Hamja Bhai,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
25. Shabbir Ahamad Khan,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
26. Shalini w/o Nilesh Maundekar,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
27. Hiren s/o Bhadrasen Diwecha,
aged about major, occ - Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
28. Kishore s/o Gangaram Ahuja,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
29. Roshan s/o Gyanchand Chawla,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
30. Shantaram s/o Bhaurao Rambhad,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
31. Hasan s/o Abdullabhai Mohd. Bohri,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
32. Vimal Kumar s/o Dharamchand Jain,
aged about major, Occ : Business,
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r/o. Old Bhandara Road, Itwari, Nagpur.
33. Manohar s/o Girdharilal Saharamani,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
34. Bhikamchand s/o Pannasav Jain,
aged about major, Occ : Business, ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
WITH
WRIT PETITION No. 1989/2010.
1. Jai Kumar Modi,
aged about major, Occ : Business,
r/o. House No.581/A, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
2. Vinay s/o Gulabchand Jain,
aged about major, Occ : Business,
r/o. House No.679, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
3. Sharad Kumar s/o Jamnalal Agrawal,
aged about major, Occ : Business,
r/o. House No.588, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
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4. Mohnesh I. Patel,
aged about Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
5. Ishwarlal B. Patel,
aged about Major, Occ : Business,
r/o. House No.700, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
6. Shri Govindrao Ramchandra Hatwar,
aged about major, Occ : Business,
r/o. House No.648, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
7. Chhotelal Nanhelal Jain,
aged about major, Occ : Business,
r/o. House No.659, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
8. Indarchand Ramswaroop AGrawal,
aged about major, Occ : Business,
r/o. House No.612, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
9. Vijaya Ben Maganlal Sanghavi,
aged about major, Occ : Business,
r/o. House No.656, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
10. Gulabrao Motilal Lad,
aged about major, Occ : Business,
r/o. House No.589, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
11. Fulchand Nanhelal Jain,
aged about major, Occ : Business,
r/o. House No.679, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
12. Chandrakant Balwantraoji Gillurkar,
aged about major, Occ : Business,
r/o. House No.646, Ward No.44,
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r/o. Old Bhandara Road, Itwari, Nagpur.
13. Ramesh Chand Jain,
aged about major, Occ : Business,
r/o. House No.607, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
14. Vijay Kumar Agrawal,
aged about major, Occ : Business,
r/o. House No.653, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
15. Praful Chand Jain,
aged about major, Occ : Business,
r/o. House No.587, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
16. Subhash Lalchand Modi,
aged about major, Occ : Business,
r/o. House No.658, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
17. Manish Kumar Shashank Shekhar Jain,
aged about major, Occ : Business,
r/o. House No.658, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
18. Satish Lalchand Modi,
aged about major, Occ : Business,
r/o. House No.301/A, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
19. Sudhir Madhaorao Chandpurkar,
aged about major, Occ : Business,
r/o. House No.608, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
20. Umesh H. Parekh,
aged about major, Occ : Business,
r/o. House No.690, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
21. Sunil Madhao Chandpurkar,
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aged about major, Occ : Business,
r/o. House No.651, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
22. Ata Hussain,
aged about major, Occ : Business,
r/o. House No.703/A, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
23. Narayan Manoharrao Kawde,
aged about major, Occ : Business,
r/o. House No.681/A, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
24. Bhajanlal Tekamdas Kandhari,
aged about major, Occ : Business,
r/o. House No.707, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
25. Nirmala Mohanlal Kandhari,
aged about major, Occ : Business,
r/o. House No.684, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
26. Prakash Chaturmal Ahuja,
aged about major, Occ : Business,
r/o. House No.319B, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
27. Ramesh Chootalal Mehta,
aged about major, occ - Business,
r/o. House No.708, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
28. Purushottam Gulabchand Gupta,
aged about major, Occ : Business,
r/o. House No.341, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
29. Tulsiram Ramkrishna Bokde,
aged about major, Occ : Business,
r/o. House No.708B, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
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30. Ali Akbar Yusuf Ali,
aged about major, Occ : Business,
r/o. House No.662, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
31. Harish Sewaram Ahuja,
aged about major, Occ : Business,
r/o. House No.675, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
32. Vishnu Pandurangji Katole,
aged about major, Occ : Business,
r/o. House No.604, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur. ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
------------------------------
Mr. M.G. Bhangde, Senior Advocate
with Shri R.M. Bhangde, Advocate for Petitioners.
Mr. C.S. Kaptan, Advocate for Respondents.
-------------------------------
CORAM : B.P. DHARMADHIKARI
AND P.B. VARALE, JJ.
Date of reserving the Judgment. - 15th October, 2010.
Date of Pronouncement. - 19th November, 2010.
JUDGEMENT. (Per B.P. Dharmadhikari, J)
1. This challenge to identical notices issued under Section 56 of
Maharashtra Regional and Town Planning Act,1966 (hereinafter referred to
as "MRTP Act" for short), needs to be viewed in the background of earlier
order dated 31/3/2010 passed by us in Writ Petition Nos. 1403,1408, 1415
and 1521 of 2010. Challenge therein was also to these notices only. Nagpur
Municipal Corporation is the planning authority which has issued those
notices to widen Bhandara road from 9 meters to 18 meters as prescribed in
Development plan. Said notices are of different dates like 13/1/2010,
22/1/2010, 3/3/2010 and 10/3/2010. Prayers in Writ Petitions are to
declare that provisions of Section 56 are not applicable when land of citizen
is reserved for public purpose in Development Plan and is required for by
planning authority to achieve said purpose, to hold that judgment of this
Court in Kishor N. Lulla Vs.State of Maharashtra and Ors. - 2008 (8) LJSOFT
155= 2008(4) Bom.C.R. 478, is per incurium, to declare said notices
discriminatory and arbitrary as contrary to planning authorities own
statements recorded by this Court in 2006 while considering issue of Kradack
Road widening and in 2005 about Kelibag Road Widening and to quash said
notices. On 28/4/2010, We issued notice and directed parties to maintain
status-quo which continues to operate till date.
2. We have heard Shri M.G. Bhangade, learned Senior Counsel with
Shri R.M. Bhangde, learned Counsel for petitioners and Shri C.S. Kaptan,
learned Counsel for Respondents.
3[A] Learned Senior Counsel points out that all petitioners before this
Court are owners of commercial structures on existing Bhandara road and
their structure and source of livelihood gets affected if its width is increased
to 60 feet from 30 feet. Attention has been drawn to our earlier orders dated
31/3/2010 in Writ Petition No. 1403 of 2010 and other connected matters
and it is urged that the petitioners then made inquiries and gathered that
similar notices issued by respondents were then indirectly given up by them
before this Court by stating that they would proceed in accordance with law
on the subject. Said notices dated 14/12/2005 issued to Kradac Road and
dated 17/10/2005 to Kelibag road occupants with orders of this Court in Writ
Petitions challenging the same are pressed into service to urge discriminatory
treatment now extended to these petitioners by alleged denial to them same
treatment. It is urged that these facts and developments were not placed by
respondents for consideration on 31/3/2010 and as petitioners were
unaware, they could not also bring it to the knowledge of this Court at that
juncture. Hence, orders dated 31/3/2010 can not and even otherwise, do not
clinch the controversy here.
3[B]. The representation dated 19/4/2010 by petitioners to
respondents is relied upon support plea of fraud, discrimination and
arbitrariness. In this backdrop, effort is being made to rebut preliminary
objection raised by respondents about availability of alternate remedy of
appeal by pointing out that the judgment of learned Single Judge in Kishor N.
Lulla Vs.State of Maharashtra and Ors. (supra) is binding upon the Appellate
Authority. Contention is petitioners effort before this Court is to demonstrate
that law laid down on Section 56 by this Court in said judgment is not correct
and hence, direct approach to this Court is the only efficacious remedy.
3[C]. Learned Senior Counsel Shri M.G. Bhangde reads out the
impugned notice under Section 56 of MRTP Act to show various directions
contained therein with comment that even if, it is fully complied with the
desired end of road widening is not achieved. He further states that wrong
printing of head-note of Section 56 creates some confusion but then bare
reading is enough to grasp its true purpose. It is only a power available when
its exercise fructifies into compliance with development plan and no further
positive step is warranted. It certainly does not divest the occupier either of
his title or possession over such property. It also provides a mechanism for
payment of compensation for discontinuance of user and such user to qualify
for price from public exchequer, has to be legal one and not unauthorized
one. Offer for 100% TDR (transferable development rights) is stated to be
possible only as per Section 126 (1)(b) of MRTP Act. As the lands or plots of
petitioners are not being acquired, public road can not be constructed on it
and width of Bhandara road can not get widened. As fundamental right to
earn livelihood and constitutional right to property is being taken away
highhandedly, the alleged bar of alternate remedy is not attracted. Section
126 of MRTP Act is the only power available here and by issuing impugned
notices and invoking Section 56 to validate it, respondents are playing fraud
on statute. It is further urged that in any case, even if both powers are
imagined to be open, law compels respondents to invoke that remedy which
exposes citizen to less evil effects.
3[D]. Reply filed by respondents taking incorrect stand about title of
petitioners and alleging them to be encroacher and its later withdrawal is
acridly commented upon as indicative of malice and unfairness. It is urged
that such important notice was for the first time attempted to be justified
before this Court by using Section 56 and when in present Writ Petitions,
there is specific assertion that notices as issued are not under Section 56 and
respondents are not proceeding under it, the respondents have not denied it.
No records are produced before this Court to show any decision reached by
them in this respect. The assertion is reiterated in rejoinder by petitioners
and still, respondents have avoided to meet it.
3[E] By relying upon (2005) 11 SCC 232-- (Raju S. Jethmalani and
Others vs. State Of Maharashtra and others), it is contended that the
respondents can not deprive petitioners of their lands or its user without
acquiring it as per law. To point out impropriety of alternate remedy of filing
an appeal under Section 56 (2), (1985) 4 SCC 404-- (M/s Onkarlal Nandlal vs
State Of Rajasthan) is relied. At least 3 categories indicated by Hon'ble Apex
Court in which direct interference is not barred are pressed into service vide
(2007) 10 SCC 88 - (M.P. State Agro Industries Development Corporation vs.
Jahan Khan). (1985) 3 SCC 545 - (Olga Tellis vs. Bombay Municipal
Corporation) is pressed in to service with contention that cases of violation of
fundamental rights like illegal deprivation of source of income warrant direct
intervention of this Court. Division Bench judgment of Hon'ble Allahabad
High Court reported at AIR 1996 Allahabad 187 - (Sri Nath Educational
Society, Sirsa vs. State of U.P). is also cited to canvass that alternate remedy is
no bar when breach is of Article 14 or Article 300A. Contention that
respondents are committing fraud on statute and Section 56 of MRTP Act is
being abused is sought to be supported by Shrisht Dhawan vs. M/s Shaw
Brothers-- (1992) 1 SCC 534. (1984)4 SCC 612 - (Jiwani Kumar Paraki vs.
First Land Acquisition Collector, Calcutta) is relied upon to urge that even if
Sections 126 and 56 both are presumed to be available, still one which
causes less inconvenience to petitioners needs to be resorted to.
4[A] Shri C.S. Kaptan, learned Counsel appearing on behalf of
respondents pointed out that in earlier Writ Petitions decided on 31/3/2010
this Court (We) found that impugned notices were under Section 56 of MRTP
Act and hence that issue is no longer open. The petitioners therefore have an
alternate and equally efficacious remedy by way of an appeal under Section
56(2) thereof. He has relied upon the scheme of Chapter IV in which Sections
43 to 58 appear to explain how recourse to Section 56 is valid. According to
him when Section 56 is read with Section 49, power to purchase with power
to work out appropriate compensation for loss of title or loss of possession is
also apparent. He emphasizes use of word "depreciation" to support his
argument. Hence, Section 126 is not at all relevant in scheme of Chapter IV
and respondent has option either to invoke Section 56 or then Section 126.
4[B] He also invites attention to orders passed in earlier Writ Petitions
while considering widening of Kradack Road or Kelibag Road to demonstrate
to this Court that same are based on concessions made and does not resolve
the controversy. Said orders recording statements do not lay down any law in
this regard. One of the Advocates appearing for these petitioners in matters
decided on 31/3/2010 also represented occupants of Kradack or Kelibag road
and was aware of orders of this Court in those petitions. He could have
pointed out the same to this Court on 31/3/2010 and there is no substance in
contention of any suppression or fraud.
4[C] He also supports observations of learned Single Judge in Kishor
N. Lulla Vs.State of Maharashtra and Ors. (supra) to urge that there the
question had arisen and a view against these petitioners is already recorded.
The effort by them to distinguish it here is without any merit and also legally
barred. MRTP Act itself balances rights of an individual with public good and
hence, in public interest only the legislature has made a provision like Section
56 to meet the exigencies. Hence, there is no question of weighing
consequences of an action under Section 126 with one under Section 56. He
therefore sought dismissal of Writ Petitions.
5. Shri Bhangde, learned Senior Counsel has urged that purpose of
Section 56 is not to divest a citizen of his ownership or possession. Unless and
until petitioners are deprived of their ownership, plots can not vest in
planning authority and become available for road widening. Section 126 of
MRTP Act is the only remedy therefor and here without taking those steps,
malafide work order is also issued to contractor. This plea of issuance of work
order is not even denied by the respondents.
6[A] Before proceeding to deal with objection about availability of
alternate remedy, We find it suitable to reproduce Section 56 itself. Section
56 of the MRTP Act has been in most of the books and texts given a wrong
heading implying that it is power to remove an "unauthorized development".
However, before us it is not in dispute and Counsel agree that the correct
heading is " Power to require removal of authorized development or use."
Said Section reads :-
" Section 56 - Power to require removal of authorized development
or use .
(1) If it appears to a Planning Authority that it is expedient in
the interest of proper planning of its areas (including the interest of
amenities) having regard to the Development plan prepared,--
(a) that any use of land should be discontinued, or
(b) that any conditions should be imposed on the continuance
thereof, or
(c) that any buildings or works should be altered or removed, the
Planning Authority may, by notice served on the owner,
(i) require the discontinuance of that use; or
(ii) impose such conditions as may be specified in the notice on the
continuance thereof; or
(iii) require such steps, as may be specified in the notice to be taken
for the alteration or removal of any buildings or works, as the case
may be;
within such period, being not less than one month, as may be
specified therein, after the service of the notice.
(2) Any person aggrieved by such notice may, within the said period
and in the manner prescribed, appeal to the State Government.
(3) On receipt of an appeal under sub-section (2), the State
Government or any other person appointed by it in this behalf may,
after giving a reasonable opportunity of being heard to the
appellant and the Planning Authority, dismiss the appeal or allow
the appeal by quashing or varying the notice as it may think fit.
(4) If any person,--
(i) who has suffered damage in consequence of the compliance with
the notice by the depreciation of any interest in the land to which he
is entitled or by being disturbed in his enjoyment of the land or
otherwise; or
(ii) who has carried out any works in compliance with the notice,
claims, from the Planning Authority, within the time and in the
manner prescribed compensation in respect of that damage, or of
any expenses reasonably incurred by him for complying with the
notice, then the provisions of sub-sections (2) and (3) of section 51
shall apply in relation to such claim as those provisions apply to
claims for compensation under those provisions.
(5) If any person having interest in land in respect of which a notice
is issued under this section claims that by the reason of the
compliance with the notice, the land will become incapable of
reasonably beneficial use, he may within the period specified in the
notice or within such period after the disposal of the appeal, if any,
filed under sub-section (2) and in the manner prescribed, serve on
the State Government a purchase notice requiring his interest in the
land to be acquired; and thereupon, the provisions of section 49 for
dealing with a purchase notice shall so far as can be made
applicable, apply as they apply to a purchase notice under that
section."
Bare looking at it shows that validity of a notice issued thereunder can be
challenged on all grounds in appeal under its sub-section 2. But then
contention before us is in present facts mere directions to undo something
does not result in proper planning or in furthering it. There is no direction to
petitioners to construct a road on portion of their plots and there can not be
any such direction under Section 56. Direction at the most is to discontinue
existing user of part of their plot and to remove building/structure already
standing in it. It may be covered by either Section 56(1)(a) or (c).
Compliance therewith by itself does not further the object of road-widening
in as much as planning authority can not ask citizens to construct road for
public on their private properties and to allow general public to use it.
Planning authority itself can not spend from public exchequer on road
widening till title or possession is legally transferred to it with right to
construct. We are required to consider the purpose of Section 56 little later
again but then suffice it to say that for considering the bar of alternate
remedy, its non-availability here assumes significance.
6[B]. In Kishor N. Lulla Vs.State of Maharashtra and Ors.,(supra) the
question either of interpretation and extent or purpose of Section 56 of MRTP
did not fall for serious consideration at all. Petitioner owner had already given
notice for computation of damages because of changes proposed in the
notice. The petitioner there had also filed appeal under Section 56(2) and
then did challenge the order passed by the Appellate authority viz., State of
Maharashtra dated 13th June 2007 confirming notice under Section 56 under
Article 227 of the Constitution of India. Ulhasnagar Municipal Corporation
invoked section 56 and notice stated that the Chief Officer of the erstwhile
Municipal Council had approved the plan for additions and alterations on
20th January 1972 on ground plus upper floor structure. The report of the
Junior Engineer referred to in the notice stated that the petitioner was
authorized to use the property to the extent indicated therein. The sanctioned
development plan came into effect from 1st July 1974 and having regard to
the said plan, petitioner's property as described in the notice got affected by
the designated purpose of 35 feet wide road. In such circumstances, his
authorized use in his property as per building plan was found to offend the
provisions of sanctioned Development plan of 1974. It was alleged to be
expedient in the interest of proper planning of said 35 feet public street that
the use of his land for commercial purpose be discontinued and the ground
plus upper floors be removed. The notice stated that in case of failure to
comply therewith, the Corporation would be constrained to remove the
structure at its cost. Counsel for petitioner there had contended that the
petitioner's user of the property being termed as authorized, there was no
question of removal the building. Section 56 was urged to have no application
to the facts inasmuch as what was affected by the alleged designation in the
development plan was the land and its user and merely to avoid obligation to
acquire the land and pay the market price that the Corporation resorted to
the Section 56 and the notice. Further, the appellate authority referred to the
extent of the user and termed the construction to a certain extent as
unauthorized and without any permission. This Court recorded that the said
notice was not contrary to law and that Section 56 had application to the
facts before it. Petitioner then sought time of three months to comply with the
notice and also to serve notice under Section 56(4) and (5). This Court also
noticed that petitioner had already served such notice upon State
Government. Its observations in para 8 are important and it shows that larger
public interest ultimately tilted the balance. The notice action there appears to
be against an individual. Section 56(5) was found sufficiently safeguarding
his interest. Thus in facts before it and in the light of arguments advanced,
the issues was examined to a limited extent and petitioner owner was
satisfied with it. May be as he had already served notice claiming
compensation. The challenge was not seriously pressed and correct head-
note of Section 56 or its peculiar scheme was not required to be looked into in
detail. It can not be therefore said that this Court there was called upon to lay
down any law for general/universal application. We have to refer to this
aspect again in this judgment. But then such an application of mind by
appellate authority qua said view of this Court is not expected and it
concludes the issue in so far as appellate forum is concerned.
6[C]. In M/s Onkarlal Nandlal vs State Of Rajasthan, Hon'ble Apex
Court holds that it would have ordinarily insisted on the assessee going
through this hierarchy of judicial process and declined to entertain the
petition for special leave directly against the order of assessment made by the
Commercial Tax Officer. But admittedly, as the High Court in another case had
already taken the view that when a resale is made by an assessee which is in
the course of interstate trade or commerce, it cannot be regarded as a resale
within the State and hence such resale would constitute a breach of the
Declaration given by the assessee to the selling dealer and the purchase price
paid by the assessee would consequently be liable to be included in the
taxable turnover of the assessee. It was therefore, found futile to drive the
assessee to file the appeal and revision and then a Writ Petition to the High
Court.
In M.P. State Agro Industries Development Corporation vs. Jahan
Khan where the penalty order impugned in the writ petition was appelable in
terms of the service regulations but as that order was found per-se illegal
being violative of the principles of natural justice, Hon'ble Apex Court held
that it cannot be said that the High Court fell into an error in entertaining the
writ petition filed by the respondent. Hon'ble Apex Court reiterated that the
rule of exclusion of writ jurisdiction due to availability of an alternative
remedy is a rule of discretion and not one of compulsion. In an appropriate
case, in spite of the availability of an alternative remedy, a writ court may still
exercise its discretionary jurisdiction of judicial review, in at least three
contingencies, namely -- (i) where the writ petition seeks enforcement of any
of the fundamental rights; (ii) where there is failure of principles of natural
justice or (iii) where the orders or proceedings are wholly without jurisdiction
or the vires of an Act is challenged. In these circumstances, an alternative
remedy does not operate as a bar.
Hon'ble Apex Court in Olga Tellis vs. Bombay Municipal
Corporation (supra) also show that cases of violation of fundamental rights
like illegal deprivation of source of income may warrant direct intervention of
this Court.
Division Bench judgment of Hon'ble Allahabad High Court in Sri
Nath Educational Society, Sirsa vs. State of U.P. also reveals that alternate
remedy is no bar when breach is of Article 14 or Article 300A. Here also there
is view of learned Single Judge of this Court which binds the appellate
authority. The impugned directions, if complied with, deprive petitioners of
possession and title to commercial properties. Effort before us to demonstrate
violation of Article 14, 21 and 300A of the Constitution of India. We,
therefore do not find any substance in preliminary objection about availability
of alternate remedy to the petitioners.
7[A]. Next question to be decided is whether We have concluded the
law on the applicability of Section 56 in present matter in our earlier orders
dated 31/3/2010. When a judgment can be construed as laying down any
law to amount to a binding precedent needs to be viewed first. We may point
out that Full Bench of this Court in 2008 (4) Mah.L.J. 843- (Emkay Exports
and anr. Vs. Madhusudan Shrikrishna) has explained in paragraphs 11, 25
and 12 to 16 the law on the point of precedent and ratio decidendi. Hon'ble
Full Bench holds that even for a precedent to be binding, it cannot be without
judicial decision or arguments that are of no moment. In order to apply a
judgment as a precedent, the relevant laws and earlier judgments should be
brought to the notice of the court and they should be correctly applied. There
are judiciously accepted exceptions to the rule of precedent and they are
decisions per incuriam, subsilentio and stare decisis. These principles explain
when and where a precedent, which is otherwise a good law, necessarily need
not be accepted in subsequent judgments if it fully satisfies essentials of these
exceptions. In the case of Commissioner of Customs (Fort) vs. Toyota
Kirloskar Motor (P) Ltd., 2007 (5) SCC 371, the Hon'ble Supreme Court
states the law relating to precedents and held that a decision is an authority
for what it decides and not what can logically be deduced therefrom. The only
thing in a Judge's decision which bind parties is the principle upon which the
case is decided and for this reason it is important to analyze the decision and
isolate "ratio decidendi" from it. By reading a line here and there from the
judgment, one cannot find out the entire ratio decidendi of the judgment. The
reasoning could be deciphered upon reading the judgment in its entirety and
then applying these principles to the subsequent cases.
7[B]. In Writ Petition No. 1403 of 2010 --(Jai Kumar Modi and
others :vs :State of Maharashtra and others) with Writ Petition No. 1408 of
2010 -- (Atikabai Taher Bhai Hussain and others :vs :State of Maharashtra and
others) with Writ Petition No. 1415 of 2010 -- (Atmaram Pinjomal Vizirani
and others :vs :State of Maharashtra and others) with Writ Petition No. 1521
of 2010 -- (Aainaz Diwan Khan and others :vs :Nagpur Municipal Corpn. and
another) on 31 st March, 2010, We have passed the final orders. The
petitioners had then contended that the shop premises belonging to them or
in their occupation and being used as such for last many years were sought to
be high handedly demolished under the guise of road widening scheme under
City Road Development Programme. The petitioners contended that unless
and until the premises belonging to the petitioners were legally acquired in
accordance with the provisions of law, there cannot be forcible dispossession
or demolition arbitrarily. Respondents' learned counsel pointed out that the
notices issued were under Section 56 of the MRTP Act, and under Section
56, Subsection(2), a remedy of filing an appeal to the State Government was
available to those petitioners. According to said learned counsel no other
provision needed to be resorted to for seeking removal of the affected portion
of shops/structures belonging to the petitioners in view of user finalized in
Development Plan and as an action in accordance with law was already taken,
no interfere in the matter was warranted. Reliance was also placed on the
judgment of in the case of Kishor N. Lulla Vs.State of Maharashtra and Ors.
(supra), to urge that there, in identical situation, this Court refused to
interfere and permitted the owner of affected structure to move for
compensation under Section 56(5) of the said Act. We find that though the
learned counsel for the respondents relied upon the provisions of Section 56
of the said Act, the then respective learned counsel for the petitioners had
urged that there was no reference to that provision anywhere in any of the
notices issued to any petitioner. They also demonstrated that in the
submissions filed, the said provision was not disclosed as its source.
According to them, if the property of an individual in his occupation for
earning his livelihood was to be prejudicially affected, the provisions of law
under which the action was sought to be taken ought to have been disclosed
in notice and in pleadings, and if the statute permitted a remedy of appeal,
that appellate forum also should have been mentioned. They, therefore,
sought to contend that notices impugned before this Court failed to fulfill the
requirements of Section 56. In the alternate and without prejudice to this
contention, they also stated that as on that day for the first time before this
Court the petitioners learnt that notices issued were under Section 56, time
to comply with those notices should commence since that day and hence, the
period during which the appeal could be filed to respondent no.1 State
Government, would be computed from that day. In this background, We found
notice impugned was in six parts. Section 56 was then noticed as power to
require removal of unauthorized development or use. We then expressed
that-- "When only notice dated 29/1/2010 is viewed in the background of these
provisions, it is apparent that Section 56 can be said to form its source. However,
said issue does not arise for determination at least for now before us". As
respondents were not relying upon Section 126 at all it was found not
necessary to look into the provisions of Section 126 of the said Act.
7[C]. We, in said order, also noted that :-- "Section 56(2) of the Act
permitted a person aggrieved by such notice a remedy of appeal before the
State Government. The scheme of Section 56 was seen gone into by the
learned Single Judge in the judgment in Kishor N. Lulla Vs.State of
Maharashtra and Ors.(supra) and in facts before us it was then found not
necessary to again discuss the same. We have thereafter observed as under:-
"The facts, however, show that even before this Court the
Planning Authority has nowhere disclosed in writing that
the action taken by it is under Section 56(1). If the
petitioners were informed that action proposed in the
impugned notices was under Section 56(1), they could
have definitely become aware of their legal rights or
obligations and could have filed necessary appeal under
Section 56(2) or could have taken other appropriate
steps according to legal advise. In the present matter, it is
apparent that as no legal provision has been indicated as
a source of power, the notice has been treated only as an
intimation and accordingly most of the petitioners have
made representation to the notice issuing authority itself.
The sum and substance of those representations is to
show how the exercise of road widening is not at all
warranted. It is, therefore, obvious that the objections
raised by them are also not in consonance with the
provisions of Section 56(2). But, they have opposed the
proposed action. However, it is not necessary for this
Court to conclude even this issue in the present matter."
At the end We also noted that:-- "It is apparent that the
steps have been taken now and whatever steps the
Planning authority initiates have to be taken in
accordance with law and after giving a citizen full notice
of the steps being taken, consequence thereof and the
rights or remedies available to him in the matter. The
------------------this Court. Had there been a proper notice
indicating the source thereof, they could have approached
the competent authority with specific case and grievance.
In this situation, ------------ the time given to the
petitioners thereunder to comply, shall start running
from today and if the petitioners are so advised, they can
file appropriate appeal under Section 56(2) of the said
Act before the competent forum in accordance with law
within that time. In view of these observations, it is
apparent that nothing more can be done in all these
petitions and hence, all these writ petitions are disposed
of."
7[D] When this order dated 31/3/2010 is viewed in the light of law in
Full Bench judgment in case of Emkay Exports and anr. Vs. Madhusudan
Shrikrishna (supra), our observations above only show an attempt made by
some of the petitioners to urge that impugned notices failed to fulfill the
requirements of Section 56. There were no arguments on scope or nature of
power conferred by Section 56 on planning authority and We also did not
record any express finding on it. We did not conclude that Section 56 was
the source of power for impugned notices or then discuss its scheme
independently. The petitioners were given liberty to act as per legal advice. All
contentions were therefore kept open. Hence reliance upon said order by the
respondents in this challenge is misconceived.
8. Exposition by the Full Bench of this Court in Emkay Exports and
anr. Vs. Madhusudan Shrikrishna (supra) on the point of precedent and ratio
decidendi is also useful here to appreciate view expressed by learned Single
Judge. We have already made reference to it above in requisite details.
Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) also stands explained
briefly. There the scheme or purpose of Section 56 and its impact on Section
126 or vice versa was not required to be dealt with. The dispute about
availability of S. 56 for undertaking road-widening work is not an issue
evaluated and examined therein. The argument of planning authority
avoiding to acquire affected land was advanced but has not been answered.
Ultimately this Court recorded that the said notice was not contrary to law
and that Section 56 had application to the facts before it. Said petitioner then
sought time of three months to comply with the notice and also to serve
notice under Section 56(4) and (5). Court also noticed that petitioner had
already served such notice upon state government. Following observations
made thereafter are important :--
"8. In my view, reading the notice as a whole
and in the light of the development plan, it would be fair,
just and proper to conclude that the planned designation
will have to be implemented and for that purpose,
petitioner's structure offending the same must be
removed. Ultimately, by providing 35 feet wide public
street, larger public interest is being served and the
Corporation is obliged to implement designation and
proposals in the plan and could have resorted to the legal
provisions in question. Similarly, the legal provision itself
takes care of the apprehension of the petitioner. If upon
the notice issued under section 56 being implemented or
being complied with by the petitioner, if he claims that
the land itself is incapable of reasonably beneficial use,
he may within the period specified in the notice or within
such period after the disposal of the appeal and in the
manner prescribed, serve on the State Government a
purchase notice requiring his interest in the land to be
acquired and thereupon section 49 comes into play. In
such circumstances, the petitioner has no apprehension
because his interest in the land, can be acquired after he
complies with sub-section 5 of section 56 and serves
requisite notice. It is -----....----- shall always follow."
Thus in facts before it and in the light of arguments advanced,
the issues was answered to a limited extent and petitioner owner was
satisfied with it as he had already served notice claiming compensation. The
challenge was not seriously pressed and correct head-note of Section 56 or its
peculiar scheme was not required to be looked into in detail. It can not be
therefore said that this Court there was called upon to lay down any law for
general/universal application. View expressed therein is circumscribed by the
facts and developments presented to this Court. The said judgment of Single
Bench therefore does not clinch the issue squarely before us. In any case, We
can always attempt to find out the legal position in this regard. Prayer made
in Writ Petitions to declare it per incurium is therefore uncalled for.
9[A]. Perusal of notice dated 14/12/2005 issued to one Tekchand
Adwani for road widening work of Kradack road reveals that its language is
identical and it also does not disclose any legal provision as its source. Notice
dated 17/10/2005 to Ramdas Marotrao Kathale (Vimal Kangan Stores) is
about widening of Kelibag road and identically worded. The language is not
being disclosed here as while considering impugned notices in present Writ
Petitions, same is required to be mentioned. Order of Division Bench dated
18/1/2006 on notice dated 14/12/2005 (Kradack road) records a statement
of respondent that said notice was only an offer and if not accepted, steps to
acquire affected land under Section 126 MRTP Act would be taken. Petition
was disposed of as rights of said petitioners were protected. Perusal of orders
dated 6/6/2007 in Writ Petition Nos. 1232 and 1250 of 2006 about Kradack
road reveals that a statement was made by planning authority that land
affected by Development Plan shall be acquired following due process of law.
The Division Bench then noted that impugned notices were not being acted
upon and hence, made Rule absolute accordingly. In Writ Petition No.
5931/2005 pertaining to Kelibag road, the respondent planning authority
filed its reply affidavit in February, 2006 and stated that as width of Kelibag
road has become clear from letter dated 17/1/2006 of town planning, it
would proceed to acquire affected land under Section 126 of MRTP Act.
Division Bench order dated 17/1/2007 delivered in Writ Petition No.
5931/2005 shows that grievance of petitioners was found taken care of by
this statement in reply. It is therefore obvious that notices similarly worded
were then not co-related with Section 56 at all and were termed only as offer.
It was also declared that if not acceptable, steps to acquire the affected lands
as per law would be taken. Though this can not be viewed as policy decision,
when identically worded notice is sought to be justified by indicating Section
56 as its source, the change in stand needs to be explained by a public body. It
can not be left at its whim and caprice. No records to change stand and
invoke S. 56 are shown to this Court despite assertion in petition and
rejoinder by Petitioners. Not only this, said assertions are not denied
specifically. Explanation about taking recourse to Section 56 as given in
paragraph 8 of reply dated 10/8/2010 filed before this Court shows that
while implementing Kradack or Kelibag road scheme, several unascertainable
claims were made and hence, Section 56 was invoked. Rejoinder dated
26/8/2010 filed by the petitioners here shows specific challenge to
availability of any records with respondents to support this explanation. It
also asserts that no records of respondents show Section 56 as origin of
impugned notices. During arguments, this new theory was stated to be
product of afterthought. Inspite of all this, the records indicating an informed
change in stand are not produced before us. However, nothing turns on it and
if respondents can connect the notices to Section 56, as there is no earlier
adjudication about these notices , the issue needs to be examined. The
judgment dated 22/1/2008 in Kishor N. Lulla Vs.State of Maharashtra and Ors.
(supra) matter was not available when orders in Kradack or Kelibag road
widening were passed by Division Benches here. Said reported judgment
appears to be root cause for change in stand. But, as already expressed,
nothing turns on it as far as law is concerned. No vested right of petitioners is
being taken away by such change and in any case, no argument of
discrimination can be based on those earlier orders of Division Benches of this
Court. If law permits respondents to elect between two powers or remedies, in
the absence of allegations of any malafides, such argument can not be
countenanced.
9[B]. In AIR 1984 S.C. 1707 (Jiwani Kumar Paraki v. First Land
Acquisition Collector, Calcutta), provisions of W.B. Premises Requisition and
Control (Temporary Provision) Act (5 of 1947) and Land Acquisition Act (1
of 1894) are considered by Hon'ble Apex Court. A room of a building situated
in an important commercial locality of Calcutta was requisitioned by
Government for the purpose of establishing main Sales Showroom of the West
Bengal Handicraft and Development Corporation Ltd. and it continued for a
span of more than 25 years. Hon'ble Apex Court held that the purpose of
requisitioning was indisputably a public purpose and the purpose of having
the premises in question was of permanent and perennial nature. It observed
that it will not be correct to say that in no case can an order of requisition for
permanent purpose be made but in a situation where the purpose of
requisitioning the property is of a permanent character and where the
Government has also the power and the opportunity to acquire the property
or a part thereof especially upon the fulfillment of the conditions of Section
49 (1) of the Land Acquisition Act (as amended by the West Bengal Act 32 of
1955) to the extent applicable, if the Government chooses not to exercise that
power to achieve its purpose, then that will be bad not because the
Government would be acting without power of requisition but the
Government might be acting in bad faith. In other words, if there is power to
acquire as also the power to requisition and the purpose is of permanent
nature by having the property or a part thereof for the Government then in
such case to keep the property under requisition permanently might be an
abuse of the power and a colourable exercise of the power not because the
Government lacks the power of requisition but because the Government does
not use the other power of acquisition which will protect the rights and
interest of the parties better. Where one is repository of two powers that is
power of requisition as well as power of acquisition qua the same property
and if the purpose can equally be served by one which causes lesser
inconvenience and damage to the citizen concerned unless the repository of
both the powers suffers from any insurmountable disability, user of one which
is disadvantageous to the citizen without exploring the use of the other would
be bad not on the ground that the Government has no power but on the
ground that it will be a misuse of the power in law. Here, this judgment can
be used only if Section 56 and Section 126 aim at same goal. But, our
conclusion in this respect reveals that both provisions operate in distinct
fields.
10[A]. First We have to find out scheme of MRTP Act and then
role of Section 56 and Section 126 therein. Before proceeding to interpret
Section 56, one can note provisions for compensation made in sub-section 4
thereof. It is obvious that a person raising an unauthorized structure or
undertaking an illegal development will not be compensated by the State.
Such a wrong doer can not force State to purchase that product or property
or his wrong user can not be recognized as beneficial user for that purpose.
Law can not and has not placed premium upon his illegal or high-handed
acts by promising to compensate him. It is therefore obvious that such
provisions can apply only if a legal injury is suffered by the noticee i.e.,
developer and not otherwise. The provisions in Section 56 envisage an
authorized construction and use of words "unauthorized construction" in
head note in some commentaries and in contents or index of Bare Act
published by Law and Judiciary Department of State is manifestly
erroneous. The said government publication however in its text at page 42
carries the heading-- "power to require removal of authorized development or
use". Advocates for petitioners as also planning authority however fairly
accepted that this heading at page 42 is correct one. Before considering this
aspect in more details, We find it convenient to first refer to the scheme of
MRTP Act. We may here add that a head-note has no relevance and it is
language of substantive Section itself which is determinative in interpretative
exercise. Hence, wrong use of word "unauthorized" in head note of S. 56 can
be overlooked as an inadvertent error. But then this is 4th occasion on which
such error in printing has surfaced before this Court. On two occasions, it was
about Maharashtra Municipalities, Nagar Panchayats and Industrial
Townships Act, 1965 and on one, about of Maharashtra Cooperative
Societies Act, 1960. It is high time and in appropriate case, this issue needs
to be addressed seriously.
10[B]. Relevance and significance of Town Planning Scheme
under Chapter V of Maharashtra Regional and Town Planning Act, 1966 viz.
MRTP Act now needs to be understood. We are benefited because of earlier
judgments of Hon'ble Apex Court and of Division Benches of this Court in
this regard. Before borrowing from these earlier precedents, We very briefly
state the manner in which the legislature has achieved the desired goal in
MRTP Act. This Act no. XXXVII of 1966 came into force on 11th January 1967
and it repealed Bombay Town Planning Act,1954 and some provisions in
Maharashtra Zilla Parishads and Panchayat Samitis Act,1961 vide its last
Section i.e., Section 165. It is divided into IX Chapters. After dealing with
extent,commencement etc. in Section 1 and definitions in Section 2 in its
Chapter I, it deals with establishment of a region, constitution of a regional
planning board and preparation of regional plans in Chapter II. Chapter III
deals with preparation,submission and sanction to development plan;
procedure to be followed for said purpose. Even procedure for preparation of
interim development plans, plans for areas of comprehensive development is
prescribed in this Chapter. If there exists any regional plan, the development
plan under this chapter has to be in accordance with it. Section 39 requires
planning authority to vary town planning schemes to bring it in conformity
with the development plan as per Section 92. Section 42 casts obligation
upon planning authorities to implement such plan or plans. Chapter IV then
deals with control of development and use of lands included in development
plan vide its Sections 43 to 51. Sections 52 to 58 therein deal with
unauthorized development. Section 56 with which We are concerned here is
placed in this later part of chapter IV. Chapter V then prescribes for
preparation of town planning scheme.
10[C]. Chapter V of MRTP Act deals with town planning schemes.
Its part (a) deals with making of town planning scheme. As per Section 59
such scheme has to be to implement proposals in final development plan. It
may provide for any matter specified in Section 22 and for laying out or
relaying out of any land either vacant or then built upon. Under Section 60 it
has to resolve to prepare such scheme for any area within its jurisdiction and
publish it in official gazette together with copy of plan. Then Section 61
requires it to publish draft scheme for area so declared within stipulated time
and there is also a provision for its lapsing, if it is not so published within
outer limit of 18 months. Section 62 enables it to include additional areas
also in such daft scheme subject to fulfillment of procedural formalities.
Section 63 enables State Government to direct planning authority to make
such scheme and in case of its failure to comply, State Government can
appoint an officer to make and submit such scheme. Section 64 lays down
the contents of draft scheme. For present purposes, it can be said that it may
provide for reservation, acquisition or allotment of necessary land, for
reconstitution of plots by altering its boundaries, for laying out or relaying
out any land either vacant or built upon for comprehensive development, and
an estimate of total costs of scheme with costs to be born by planning
authority, Section 65 states that in draft scheme, size and shape of
reconstituted plot will be determined to render it suitable for building
purpose. If it is already built upon, to see that structure as far as possible does
not violate stipulation about open spaces in the draft scheme. For said object,
plot boundaries can be altered, adjoining land can be either added to it or
vice-versa. With consent of owners, a joint ownership can also be proposed
without delimitation, allotment of final plot to a dispossessed person and for
transfer of ownership form one person to another. Section 66 seems to be an
important provision and it provides for payment of compensation to owner for
discontinuance of user after final scheme comes into force. Section 67 then
envisages consideration of objections by aggrieved person to such draft
scheme and modifications therein if found essential. Section 67 then
contemplates submission of such draft with objections and modifications, if
any within 6 months of publication of draft scheme to State State Government
then has to sanction it within 6 months or extended time by notification in
official gazette with or without modifications and subject to conditions as
may be found fit. It may also refuse to sanction it. Section 69 prohibits a
person from undertaking any change or development once declaration of an
intention to make scheme is published without obtaining requisite permission
as stipulated therein. Section 71 contains a summary inquiry for resolving
issues like disputed ownership but it is subject to adjudication in civil suit.
10[D]. Part (b) of said Chapter V makes provisions for
appointment an Arbitrator and a Tribunal of appeal. An arbitrator can define
or demarcate or decide area allotted to any public purpose or of final plots;
decide person/s to whom final plot can be allotted, estimate its value or find
difference between value of original plot and final plot, decide compensation
payable for loss of plot or area of original plot. Section 73 makes certain
decisions of such Arbitrator final. If no appeal is filed Section 82 makes those
decision of arbitrator also final. Section 74 enables party aggrieved by his
decisions to file appeal in certain matters. Section 75 lays down constitution
of appellate tribunal. Further provisions till Section 82 lay down procedural
details in regard to appellate Tribunal. Section 80 states that such Tribunal of
Appeal is not a Court. Section 83 enables planning authority to take
possession in advance for forthwith undertaking development work by
applying to State Government through arbitrator. If State Government is
satisfied it may authorize arbitrator by notification in official gazette to take
possession. Section 84 obliges Commissioner of Police or District Magistrate
to secure delivery of possession. S.85 confers upon him right to receive 4%
interest from from date of loss of possession till compensation is paid to him.
Section 86 contemplates sanction to final scheme by State Government within
stipulated period after its receipt under Section 82 from arbitrator by
notification in official gazette. Section 87 lays down situation in which the
scheme may be withdrawn. Section 88 the prescribes vesting of all lands
required for scheme to vest and handing over its possession to planning
authority on such coming into force of final scheme. Part (c) of this Chapter V
then vide Sections 89 and 90 deals with enforcement of the Schemes, while
part (d) - Sections 91 to 93 with variation in said scheme. Section 94 and 95
in Part (e) lays down procedure before the Arbitrator or Tribunal, Part (f) and
Section 96 therein, for joint development plans or joint town planning
schemes, Part (g)- Sections 97 to 101 for Finance of Schemes, Part (h) in its
Sections 102 to 107 for compensation, Part (I), Sections 108 to 112 provide
for miscellaneous matters.
10[E]. Chapter VI with title new towns deals with designation of
cites as new towns, for declaration or formation of new town development
authority, objects of development authority, acquisition of land for it by
agreement or under Land Acquisition Act, 1894 by State Government and
other similar related matters. Chapter VI-A deals with levy, assessment and
recovery of development charges. Its Section 117 also provides for lapsing of
reservation if after notice of landowner for acquisition, no steps for
acquisition are taken. Chapter VII then deals with land acquisition. Section
129 therein provides for taking of possession in case of urgency. Chapter VIII
then takes care of Finance, Accounts and Audit. Chapter IX incorporates
supplemental and miscellaneous provisions. Instead of placing our
comments on the mechanism of this MRTP Act and reasons behind it, We find
it proper to refer to some leading judgments of Hon'ble Apex Court and of
this Court dealing with the same. The MRTP Act is almost on same lines as
Bombay Town Planning Act, 1955.
11[A]. Constitution Bench of Hon'ble Apex Court in AIR 1986
S.C. 468 = 1986 (1) SCC 581- (Prakash Amichand Shah v. State of Gujarat)
considered Bombay Town Planning Act (27 of 1955). This consideration part
also holds good to understand above arrangement and its mechanics in MRTP
Act. While holding acquisition of land under Town Planning Scheme under
Section 53 thereof not violative of Articles 14 and 31(2) for not extending
procedure of Land Acquisition Act, the Hon'ble Apex Court observed :-
"6. Before taking up for consideration the contentions
urged on behalf of the appellant, it is necessary to
understand the objects and the scheme of the Act. The
principal, objects of any town planning legislation
generally are to provide for planning, the development
and control of the use of land and to confer on
authorities such as City Municipalities, Municipal
Boroughs, Town Municipalities, Town Panchayats etc.
powers in respect of the acquisition and development of
land for planning and other purposes. Such laws
generally provide for the preparation of schemes that
might be made in respect of the land with the general
object of controlling its development, securing proper
sanitary conditions, amenities and conveniences such as
public parks, playgrounds, hospital areas etc.,
preserving existing buildings or other objects of
architectural, historic or artistic interest and places of
natural interest or beauty and generally of protecting
existing amenities. The Act is one such piece of
legislation. It was enacted in the place of an earlier
statute -------------..............-------------- by the local
authority or directed by the State Government in this
behalf.
7. By requiring a local authority to prepare a
development plan, the Act intends that the Town
Planning Schemes should from part of a single and
cohesive plan for development of the entire area over
which the local authority has jurisdiction. The local
authority is required to submit the development plan for
the sanction of the State Government. After the receipt
of the sanction of the State Government of the
development plan, the local authority is authorised by
S ection
11(1) of the Act to acquire any land designated
in the development plan for purposes specified in
Clauses (b), (c), (d) and (e) of S ection
7 of the Act
either by agreement or under the Land Acquisition Act,
1894. Sub-sec. (2) of Section 11 of the Act provides that
the Land Acquisition Act, 1894 as amended by the
Schedule to the Act would apply to the determination of
the compensation for the acquisition of such land.
8. Chapter III of the act deals with the provisions
relating to the making of Town Planning Schemes. S. 18
of the ----------...............---------------- from the date of
such declaration it shall not be competent to the local
authority to declare its intention to make any Town
Planning Scheme for the same area or any part of it. S.
25 of the Act provides that the draft scheme shall
contain the following particulars :
(a) to (h) - Not reproduced here.
9. Section 26 deals with reconstituted plots. In the draft
scheme the size and shape of
every reconstituted plot
shall be determined, so far as way be, to render it
suitable for building purposes and where the plot is
already built upon, to ensure that the building, as far as
possible, complies with the provisions of the scheme as
regards open spaces
. For the purpose of sub-section (1)
of section 26 of the Act the draft scheme may contain
the following proposals :-
(a) to (e) Not reproduced.
10. Section 27 of the Act provides for representation to
be made by persons affected by such scheme. Section 28
of the Act confers the powers on the State Government
to grant sanction to the scheme and to publish it within
one month from the date on which the sanction of the
State Government to the draft scheme is published in
the Official Gazette the State Government is required to
appoint a Town Planning Officer for the purpose of
implementing the scheme. The duties of the Town
Planning Officer are set out in Section 32 of the Act. It
reads thus : (Not reproduced.)
11. Section 33 of the Act, provides that excepting in
matters arising out of clauses (v), (vi), (viii), (ix), (x)
and (xiii) of sub-section (1) of section 32, every decision
of the Town Planning Officer shall be final and
conclusive and binding on all persons. Section 34 of the
Act however provides for appeals being preferred against
any decision of the Town Planning Officer under clauses
(v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of
section 32 of the Act to the Board of Appeal constituted
under section 35. of the Act. Thereafter a final scheme
should be prepared and submitted to the State
Government. The State Government is authorized to
accord sanction to such final scheme under section 51 of
the Act. Thus it is seen that the Town Planning Schemes
are to be prepared in two distinct stages by two different
authorities. The first stage constitutes the preparation of
draft town planning scheme by the local authority and
the: second stage consists of the scheme to be prepared
by the Town Planning Officer. If the State Government
sanctions the final scheme under section 51 of the Act it
shall state in the notification the place at which the
final scheme is kept open for the public inspection and a
date which shall not be earlier than one month after the
date of the publication of the notification on which all
the liabilities created by the scheme shall take effect and
the final scheme shall come into force. On and after the
date fixed in such notification a town planning scheme
shall have effect as if it had been enacted in the Act. The
effect of final schemes is set out in section 53 of the Act.
Section 53 reads thus :-
"53. On the day on which the final scheme comes into
force, -
(a) all lands required by the local authority shall, unless
it is otherwise determined in such scheme, vest
absolutely in the local authority free from all
encumbrances;
(b) all rights in the original plots which have been re-
constituted shall determine and the re-constituted plots
shall become subject to the rights settled by the Town
Planning Officer."
12. to 15. (not reproduced here).
16. Section 84 of the Act provides that if at any time the
State Government is of the opinion that any land
included in a town planning scheme is needed for a
public purpose other than that for which it is included
in the scheme it may make a declaration to that effect in
the Official Gazette in the manner provided in section 6
of the Land Acquisition Act, 1894 and on the
publication of such declaration the Collector shall
proceed to take order for the acquisition of the land and
the provisions of the Land Acquisition Act, 1894, as
amended by the Schedule to the Act, as far as may be,
shall apply to the acquisition of the said land. Thus it is
seen that there are three methods of acquisition of land
under the Act which are as under :-
(i) acquisition of land provided in section 11 of the Act
for development purposes specified in clauses (b), (c),
(d) and (e) of section 7 of the Act for which
compensation is payable under the provisions of the
Land Acquisition Act, 1894 as amended by the
provisions contained in the Schedule to the Act;
(ii) transfer of lands that takes place on the coming into
force of the final scheme under section 53 of the Act for
which compensation is payable in accordance with
section 67 of the Act; and
(iii) acquisition of land under section 84 of the Act
which empowers the State Government to acquire lands
included in the town planning scheme at a subsequent
stage where again compensation is payable in
accordance with the provisions of the Land Acquisition
Act, 1894 as amended by the Schedule to the Act.
17. These are broadly the features of the Act."
11[B]. In AIR 1985 S.C. 613 (Babubhai and Co., M/s. v. State of
Gujarat) validity of Section 54 dealing with summary eviction of same act
viz. Bombay Town Planning Act (27 of 1955), has been considered. Its para 8
reads as under :--
"8. In the instant case on an examination of the
Scheme of the Act as also the purpose sought to be
achieved by S. 54 it will appear clear that the topic of
making of town planning schemes is dealt with in Ss.
21 to 53 while S. 54 (and some of the following
sections like 55 and 71 to 78) deal with the aspect of
the execution of town planning schemes and it is at
the stage of execution of a town planning scheme that
the power of summary eviction of occupants who have
ceased to be entitled to occupy the plots in their
occupation has been conferred upon the Local
Authority itself - a highly responsible body, and that
the power is required to be exercised by it in objective
manner (it is to be found by reference to the Final
Scheme and its interpretation whether the occupants
are occupying Further we are in agreement with the
High Court that the power conferred upon the Local
Authority is a quasi-judicial power which implies that
the same has to be exercised after observing the
principles of natural justice, that is to say, the decision
that the occupants are not entitled. lands which they
are not entitled to occupy). Further we are in
agreement with the High Court that the power
conferred upon the Local Authority is a quasi-judicial
power which implies that the same has to be exercised
after observing the principles of natural justice, that is
to say, the decision that the occupants are not entitled.
to occupy the plots in their occupation has to be
arrived at after hearing such occupants and that too
by passing a speaking order which implies giving of
reasons and that ensures the application of mind to
only germane or relevant material on the record
eschewing matter extraneous and irrelevant. Moreover
any order of summary eviction based on any
extraneous, non-germane, irrelevant or mala fide
considerations would be subject to the writ jurisdiction
of Court. Having regard to these aspects, mere absence
of corrective machinery by way of appeal or review
would not in our view render the provision invalid."
11[C]. Division Bench of this Court in 2005 (5) LJSOFT 46
=2005 (2) All.M.R. 271- (Pukhrajmal Sagarmal Lunkad (deceased through
LRs.) and Ors. Vs. Municipal Council, Jalgaon and Ors) considers scheme of
MRTP Act, 1966. That consideration is also helpful in throwing light on the
functioning of MRTP Act. Division Bench there holds that Chapter V of MRTP
Act is a self contained Code providing for payment of compensation and
vesting of the title of the lands in the planning authority and therefore
applicability of the provisions of Land Acquisition Act is excluded . Denial of
applicability of Land Acquisition Act is found not in violation of fundamental
right contained in Article 14 of the Constitution of India. The following
points emerged there for adjudication:-
(I) Whether Chapter V of the M.R.T.P. Act, is a self contained
Code, providing for payment of compensation and vesting
the tide of the lands in the Planning Authority;
(II) Whether Section 126 of the M.R.T.P. Act could be brought
into play, in regard to the lands reserved for public purpose
in the Town Planning Scheme;
(III) Whether the petitioner is entitled to claim market value of
the land and other benefits, such as Solatium etc, as is
contemplated by the provisions of the Land Acquisition Act,
though his land forms part of the Town Planning Scheme;
(IV) Whether Section 127 of the Act, is available to the owner of
a land reserved for public purpose, under a Town Planning
Scheme;
(V) By non-application of Sections 126 and 127 of the Act,
whether the petitioners' right to equality under Article 14
of the Constitution of India is abridged and violated.
In para 7, the Division Bench has expressed :--
"7. Before we proceed to deal with the scheme of
the Maharashtra Regional Town Planning Act, (for
sake of brevity 'the M.R.T.P. Act) it would be
appropriate to deal with the features of the repealed
enactment, which was dealing with the same subject,
prior to the coming into force of the Act. The subject of
Development Plan and Town Planning Scheme was
regulated by the provisions contained in the Bombay
Town Planning Act, 1954. The said Act provided for
preparation of Development Plan, so also, Town
Planning Schemes. The present Act is an improvement
over the Bombay Town Planning Act and includes, few
more chapters, dealing with the Regional Plans and
Development of new Towns. It is relevant to note that
the M.R.T.P. Act follows generally the then existing
provisions of Bombay Town Planning Act, 1954, (for
sake of brevity 'the B.T.P. Act') in regard to preparation
and execution of Town Planning Schemes, with few
minor modifications. So far as the provisions relating
to the Town Planning Scheme are concerned, there is a
striking similarly in both the Acts, i.e. M.R.T.P. and
B.T.P. Act.
The. Division Bench then refers to the Scheme of the B.T.P. Act
in relation to Town Planning Scheme for the reason that some of the points
raised in petition before it were adjudicated by the Apex Court in reference to
the provisions of the B.T.P. Act. It then in paragraph 9 notes:--
" 9. The Development Plan proposals are executed
by the local authority either by compulsory land
acquisition or by preparing and executing Town
Planning Schemes for different parts of the Town, so
that when all the proposals are carried out, there
would emerge a harmonious, well planned and
properly developed town. Town Planning Scheme can
be made in respect of any land, whether open or built
upon and incremental contribution, i.e. betterments
in land value, can be recovered from the owners of the
plots benefiting from the. proposals made in the
scheme.
In making a Town Planning Scheme the lands
of all persons covered by the scheme are treated as if
they are put in a pool. The Town Planning Officer
then proceeds to reconstitute the plots for residential
buildings and to reserve lands for public purposes.
Reconstituted plots are allotted to the landholders.
The reconstituted plots having regard to the exigencies
of the scheme need not be of the same dimensions as
the original land. Their shape and size may be altered
and even the site of the reconstituted plot allotted to
an owner may be shifted. The Arbitrator may lay out
new roads, divert or close existing roads, reserve lands
for recreation grounds, schools, markets, green belts
and similar public purposes, and provide for drainage,
lighting, water-supply, filling up of reclamation of
low-lying, swamp or unhealthy areas or leveling up of
land so that the total area included
in the scheme
may conduce to the health and well-being of the
residents. Since the Town Planning Scheme is intended
to improve
the sanitary conditions prevailing in a
locality, the owners of plots are required to maintain
land open around their buildings. The object of the
scheme being to provide amenities for the benefit of
the residents generally, the area in the occupation of
the individual
holders of land is generally reduced, for
they have to contribute out of their plots, areas which
are required for maintaining the services beneficial to
the community. Under the B.T.P. Act, the cost of the
scheme is to be met wholly or in part by contributions
to be levied by the local authority on each plot
included in the final scheme calculated in proportion
to the increment which is estimated to. accrue in
respect of each plot.
While dealing with provisions of B.T.P. the Apex
Court, in a judgment reported in AIR 1969 SC 634
has, in depth, considered the working of the Town
Planning Schemes and observed........--------................
This is how the Town Planning Schemes were operated
under the B.T.P. Act.
10. Let us examine, whether the M.R.T.P. Act
deviates from the manner of operation of the Town
Planning Schemes from the repealed B.T.P. Act or it
runs hand in hand with the same. Chapter V of the
M.R.T.P. Act deals with Town Planning Schemes.
Section 59 provides for preparation and contents of
the scheme. Section 60 empowers the Planning
Authority to resolve on declaration of intention to
make a scheme and publish the same in the Official
Gazette. Section 61 regulates making and publication
of Draft Scheme. Section 64 provides for contents of
the Draft Scheme. Section 66 deals with compensation
for discontinuance of use. Section 67 obliges the
Planning Authority to consider objections to the Town
Planning Scheme. Section 68 authorises the State
Government to sanction the Draft Scheme. All these
sections fall under the Head Note, "Making of Town
Planning Schemes". In making of a Town Planning
Scheme, the M.R.T.P. Act does not make any deviation
from the B.T.P. Act. Under Section 72, the State Govt.
has to appoint an Arbitrator within one month from
the sanction of the Draft Scheme. Sub-section 3,
provides for powers and duties of Arbitrator. Section
74 provides for Appeals before the Tribunal of Appeals
to be constituted under Section 75.
Under the B.T.P. Act, the Authorities designated
were Town Planning Officers and Board of Appeals,
whereas under the M.R.T.P. Act, the designations have
been changed and renamed as Arbitrator and
Tribunal of Appeals. They perform the same functions
and exercise the same powers. Section 83 deals with
advance possession of land. Section 85 provides for
payment of interest to the owners of land, whose
possession is taken in advance. Section 86 postulates
sanction by the State Govt. to the final scheme.
Section 88 provides for the effect of final scheme. It
reads thus :"Section 88 : On and after the day on
which a final scheme comes into force:
(a) all lands required by the Planning Authority shall,
unless it is otherwise determined in such scheme, vest
absolutely in the Planning Authority free from all
encumbrances;
(b) all rights in the original plots which have been
reconstituted shall determine, and the reconstituted
plots shall become subject to the rights settled by
Arbitrator;
(c) the Planning Authority shall hand over possession
of the final plots to the owners to whom they are
allotted in the final scheme."
Section 88 of the M.R.T.P. Act is almost the same
as Section 53 of the B.T.P. Act. So far as Clause (a) is
concerned, it is identical. The vesting of lands,
required by the Planning Authority, in the Planning
Authority (or Local Authority under the B.T.P. Act)
has undergone no change. Section 97 deals with
working out the cost of the scheme and Section 101
provides for transfer of rights from original to
reconstituted plot and extinction of such right when
the same cannot be transferred. Section 101 provides
for payment of compensation in respect of property or
right injuriously affected by the scheme. The principle
of determination Of compensation is fully covered by
Sections 102 to 107.
Comparison of the entire scheme, in regard to
Town Planning Scheme under the M.R.T.P. Act and the
repealed B.T.P. Act would reveal a striking similarly.
What is true of a provision under the B.T.P. Act is
equally true in relation to the similar provision in the
M.R.T.P. Act. The M.R.T.P. Act is modelled on the same
pattern as B.T.P. Act. Under the M.R.T.P. Act, the Town
Planning Schemes are prepared and finalized in the
same manner as was done under Bombay Town
Planning Act. It is as such evident that the judgments
delivered by the Supreme Court interpreting the
provisions of the B.T.P. Act would hold good while
interpreting the similar provisions in the M.R.T.P. Act.
Bearing this position in mind, we proceed to deal with
the points raised in this petition. As Point Nos.(Il)
(III) and (V) overlap, we will consider the same
collectively.
Little later in para 13, Division Bench has observed :--
"13. The divesting of the title takes place statutorily
under Section 88 of the M.R.T.P. Act. Section 104 of
the M.R.T.P. Act provides for payment of compensation
to the owner of a original plot, who is not provided
with a plot in the final scheme or if the contribution
to be levied from him under Section 100 of the Act, is
less than the total amount to be deducted therefrom,
under any of the provisions of the Act. It will not be
out of place to state that Chapter VIII of the Bombay
Town Planning Act, is almost bodily lifted and inserted
as Chapter V of the M.R.T.P. Act, which deals with
finance of the schemes. The provisions of Sections 64
to 73 of the old Act, find place in Sections 97 to 106
of the M.R.T.P. Act. The Supreme Court has
categorically rejected the contention raised by the
learned counsel for the appellant, that if it is possible
to acquire the land of the appellant, either under the
Land Acquisition Act, 1894, which is more favorable
to the owner of the lands, both from the point of view
of procedural difficulties and from the point of view of
quantum of compensation payable for the land, which
includes solatium payable under Section 23(2) of the
Land Acquisition Act, then the Act, which does not
provide for appeal against many orders passed by the
Town Planning Officer (Arbitrator) and does not
authorise payment of solatium in addition to the
market value of land, the acquisition of land under
the Town Planning Scheme under Section 53 (Section
88 of the M.R.T.P. Act) is discriminatory and violative
of Article 14 of the Constitution, viz. equality before
law and equal protection of laws.
While considering a situation, wherein a person
loses whole of his land, in the light of the provisions
contained in Section 53 (Section 88 of the M.R.T.P.
Act) of the Act, the Supreme Court observed thus:
"Under Section 51(3) of the Act (Section 86(3) of the
M.R.T.P. Act), --------------.....................---------------
owners of the original plots. The development and
planning carried out under the Act is primarily for the
benefit of public. The local authority is under an
obligation to function according to the Act. The local
authority has to bear a part of the expenses of
development. It is in one sense a package deal. The
proceedings relating to the scheme are not like
acquisition proceedings under the Land Acquisition
Act, 1894. Nor are the provisions of the Land
Acquisition Act, 1994 made applicable either without
or with modifications as in the case of Nagpur
Improvement Trust Act, 1936."
14. Applying the ratio laid down in the above
judgments, it is crystal clear that Chapter V of the
M.R.T.P. Act, is a self contained Code providing for
payment of compensation and vesting of the title of
the lands in the planning authority. The petitioners
are not entitled to claim that their lands ought to be
acquired under the Land Acquisition Act. When the
land forms part of the Town Planning Scheme,
applicability of the provisions of the Land Acquisition
Act, is excluded and the petitioners cannot contend
that denial of applicability of the Land Acquisition
Act, while acquiring the land, needed for public
purpose by the Planning Authority, by virtue of
operation of Section 88 of the M.R.T.P. Act, results in
violation of the fundamental right contained in Article
14 of the Constitution of India."
11[D]. Another Division Bench of this Court in 2006 (8) LJSOFT 153--
(Zahir Jahangir Vakil and Ors.Vs.Pune Municipal Corporation and Anr),
takes the same view and finds - (i) that the scheme of the Town Planning
under the MRTP Act, 1966 is a scheme by itself and the provisions of
compensation are inbuilt and govern within the said scheme, (ii) the
provisions of Town Planning scheme provide for computation of
compensation by the Arbitrator, (iii) if a party is aggrieved by such
compensation being fixed by the arbitrator such a party has a right of appeal
before the Tribunal under the provisions of the MRTP Act, 1966, (iv) on the
final scheme being sanctioned by the State Government under section 88(a),
the property vests free of all encumbrances in the State Government and all
rights of the original holders in the original plot of land stand extinguished,
(v) the rights of the parties are governed by the provisions of the said scheme
and cannot be looked into outside the said scheme. Mechanism of MRTP Act
is found to classify Town Planning Scheme into three parts: (i) draft town
planning scheme, (ii) proposed final town planning scheme and (iii)
Sanctioned town planning scheme. Chapter V of the Act is recognized to be a
self-operative complete code by itself. Thus, for the purpose of the
compensation in respect of plots of land covered under the scheme and
reserved or utilized for the public purpose under the scheme the respondents
are liable to resort to the provisions of Section126 of MRTP Act, 1966 and
consequently acquire the same under Land Acquisition Act, 1894. In
paragraph 26, Division Bench holds that the words 'town planning scheme'
used under the provisions of sub-section (2) of section 126 is in respect of the
town planning scheme which has yet not become final and sanctioned in
exercise of power under section 86 by the State Government though
published as final scheme for inviting objections under Section 67 of the
MRTP Act, 1966. Thus, the provisions of Section 126(2) providing for
acquisition of the land will apply prior to the said town planning scheme is
finally sanctioned under the provisions of Section 86 of the said Act of 1966.
The said provisions are enabling provisions because if the planning authority
desires to acquire the land under section 88(c) then such an enabling power is
given by sub section (2) of section 126 of the said MRTP Act, 1966. On such
exercise under Section 126 of power the planning authority can acquire a
land even before the final scheme is sanctioned under provision of Section 86
of the Act. These enabling provisions are designed for emergencies where due
to exigencies the State Government cannot wait till completion of entire
procedure prescribed under Chapter V and land is required for any urgent
public purpose. It also held that in cases where town planning scheme is
already sanctioned and the property vests in the State Government under
section 88(a) of the said Act, the question of resorting to section 126(2) of the
said Act of 1966 cannot and does not arise.
12[A]. These judgments therefore show the stage by stage progress of
region into scientifically designed and coordinated , mutually dependent but
well organized areas to form cities and metropolis for better life and support
to community. A town planning scheme for any area within jurisdiction of a
planning authority seems to be the smallest unit of consideration while next
unit is a town planning scheme. Said scheme has to be in consonance with the
final development plan which in turn has to conform with the regional plan. It
is therefore clear that town planning is very systematic activity designed
scientifically in the interest of consolidated development to suit needs of the
society. The legislation expects region to grow in pre-designed manner and
the general society then develops around it which in turn results in putting
optimum pressure on natural resources and sustained ecological balance.
When the planning authority has to carry out the works like road widening or
of public utility in a city, acquiring title or possession of plots of citizens may
become necessary. When such development i.e., designated purpose affects
lands or plots of several citizens, a consolidated exercise is prescribed in
MRTP Act. Chapter V stipulates democratic procedure therefor and it
balances interests of an individual with public interest. Similarly, procedure
therein also attempts to match conflicting interests of individuals in such
matters. Provisions permitting amalgamation of plots, of reconstitution of
plots, for enabling joint ownership are already mentioned by us above. Views
on said mechanism and construing Chapter V as a complete code not
permitting recourse to Section 126, except in relation to lands reserved for
public utility are also noted by us. Section 66 there contains a provision for
compensation for change of user. It states that area or building ceases to be
available for any other use except one specified in final scheme within such
time as stipulated in final scheme. Person affected by such bar is entitled to
compensation as determined by the arbitrator. Section 83 therein enables
planning authority to take possession in advance for forthwith undertaking
development work by applying to State Government through arbitrator. If
State Government is satisfied it may authorize arbitrator by notification in
official gazette to take possession. Chapter VII dealing with land acquisition
has Section 129 enabling respondents to take possession of lands reserved or
designated for public purpose in Regional Plan or Development Plan, in case
of urgency. Power can be exercised after publication of notification under
Section 126(2) of MRTP Act by making application to State Government and
State needs to be satisfied about public interest behind such urgency.
12[B]. By the impugned notices, respondents have called upon
petitioners to produce title documents in relation to affected properties.
Documents of title like city survey grant i.e., Sanad, akhiv patrika i.e., revenue
extract by city survey and sanctioned building plan etc. are specified in it.
This may show absence of any previous town planning scheme constituting or
reconstituting and allotting those plots to petitioners. Otherwise the relevant
records about allotment, plot sizes and shapes would have been with the
planning authority. Reply affidavit of respondents dated 10/8/2010 denies
knowledge of title or legal possession of petitioners. It is asserted by them that
"many of the lands on Bhandara Road are mere encroachments and
unauthorized structures erected on public lands, as such question of
acquisition of those lands under Section 126 of the MRTP Act does not arise."
Though this assertion was seriously assailed by learned Counsel by pointing
out that the same were without proper verification of documents supplied to
respondents, and also by pointing out that after all those documents were
produced by the petitioners before this Court with rejoinder, the respondents
were constrained to accept those claims, We do not find it decisive either way.
It only supports our conclusion of absence of any previous planning exercise
in the Bhandara Road area. Thus it brings on record lack of any previous
study or scientific approach of a planner to the town planning facet of
Bhandara Road widening work.
12[C]. "Region" is the largest concept recognized by the MRTP Act and
"Regional Plan" therefore is the master document to determine the pattern of
Development Plan to be prepared by the Planning Authority as per Section 21.
This has to be in conformity with the Regional Plan and for entire area within
jurisdiction of such an authority. Section 21 and Section 27 both cast this
obligation upon it. The Development Plan attains finality in Section 31
through democratic process of public participation. Such development plan
then eclipses the town planning scheme, if already prepared, as per Section
39. As noticed above then Section 42 casts obligation upon planning
authorities to implement such plan or plans. Chapter IV then deals with
control of development and use of lands included in development plan vide
its Sections 43 to 51. Sections 52 to 58 therein deal with control of
unauthorized development. Mostly this Chapter IV contains provisions to
check illegal or unauthorized development contrary to development plans and
to maintain orderly development. Powers given thereunder to planning
authorities are only to secure that goal. The stage at which legislation has
envisaged exercise thereof clearly spells out absence of a power to compel
transfer of title or possession. Such power is not required at that stage and
has been specifically conferred later on when logically recourse thereto is
warranted. Section 56 with which we are concerned here is placed in this
later part of chapter IV. In facts before us and in this situation, after
Development Plan attained finality, it will be mandatory to prepare a town
planning scheme to introduce town planners scientific angle and to
reconstitute plots to provide for 60 feet wide Bhandara Road. It is possible
only after giving all concerned necessary opportunity as per the procedure
stipulated in Chapter V of MRTP Act. It would have assisted planning
authority to find out number of viable plots becoming available in that area
and attempt to work out entitlement of individuals as per law from amongst
various existing holders thereof. Drawing of a proper lay-out providing for
road width of 18 Meters as per method prescribed in MRTP Act was/is
essential. It is more than apparent that this exercise has not even been
thought of here.
13. Question is whether Section 56 is a substitute for this exercise ?
Does it provide any shortcut to achieve the goal of road widening ? Necessary
observations to show that it is power to require removal of "authorized"
development or use have come above in this judgment. It springs into force
after preparation of Development Plan and hence, a town planning scheme as
envisaged in Chapter V of MRTP Act is not essential. The planning authority
however has to satisfy itself that its use is necessary and expedient for proper
planning of its areas including the interest of amenities. What we gather is,
said power can be resorted to only when the compliance with directions
issued thereunder results in furthering the proper planning or interest of
amenities. Directions contemplated are discontinuance of any use of land,
imposing any conditions on its user and alteration or removal of any building
or work. Learned Senior Advocate has urged that ban on shopping frontage
due to new scheme/plan is one illustration in which the existing shop-activity
may be continued with some alteration or concessions. We have already
pointed out that power can be exercised even to stop any activity though fully
in consonance with plan. A teacher running largely attended private coaching
classes at his residence may create parking or other problems in locality and
perhaps, this power then can be used to discontinue that user or to regulate it.
We can not and will not like to say anything conclusively here as very wide
and extraordinary power is conferred on planning authority to meet different
situations whether foreseen or unpredictable. The public interest is of
paramount importance in the scheme and step directed has to be expedient in
the interest of proper planning or amenities. When recourse to it is seen in
the light of purpose of road widening, it is apparent that any positive act on
part of owner or any discontinuance on his part can not result in road
widening. At the most, his plot or land may become available for road
construction but then that road or its extra width will be required to be built
by the planning authority. Respondents here have given the work-order
dated 16/11/2009 for said road construction to M/s R.M. Dayaramani. Thus
even before receipt of possession, public money is being made available for
such work on private property. This Section does not contemplate any
divestment of title of such holder or its transfer or vesting in planning
authority. Section 56(4) only enables person suffering damage on account of
such compliance to claim compensation therefor or then reimbursement of
expenditure incurred in such compliance. For computation thereof, provisions
of Section 51(2) and (3) are made applicable. Section 51 enables planning
authority to either revoke or modify any permission for development whether
granted or deemed to be granted with same objective as envisaged in Section
56. Thus Section 51 is power to stop development in progress while Section
56 is power to stop its user or regulate it after development is over. Section
56(5) is important indication about the nature or scope of power under
Section 56. If because of compliance with the directions as issued, the holder
finds that land becomes reasonably incapable of beneficial use, he can serve a
purchase notice upon the State Government as per Section 49 of MRTP Act.
Thus only when land can not be reasonably used by the person after such
compliance, question of purchase by State or planning authority crops up.
Option whether to sale or not to sale is with owner and not with planning
authority. Words "incapable of reasonably beneficial use" import an element
of objectivity to some extent, thereby enabling State or planning authority to
refuse to purchase. Section 56, however, does not give planning authority an
option to force citizen to sell. It does not confer on it power to buy or acquire
the designated land and construct a public road on it. In other words, Section
56 does not contain any machinery for vesting of title in respondents to land
on which widening work is to be done. When the other provisions enable it to
take advance possession or emergent steps at appropriate stage, absence of
such power in Section 56 is conspicuous and also deliberate. The respondents
are not authorized to dispossess a person from his plot or land against his
wish and it is not a summary mode of pushing road widening work. It is not
meant to force a person to part with title or possession. Section 56 is
attracted only when planning authority does not need the title and possession
of land and compliance with directions either of discontinuance or fulfillment
of conditions imposed or alteration/removal of structure is enough. Shri
Kaptan, learned Counsel for respondents has tried to show how further steps
under Sections 52 and 53 are possible after failure to comply with notice
under Section 56. But, in present challenge, we find said effort misconceived.
Section 56 can not be used to procure land for increasing the width of road.
Effort of respondents to assign impugned notices to Section 56 for the first
time and before this Court therefore, must fail. It is also apparent that this
Court while passing order dated 31/3/2010 in Writ Petition No. 1415/2010 or
in Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) did not have
occasion to look into all these facets of Section 56 of MRTP Act. From this, it
is evident that all objections by the respondents on the strength of said order
or judgment and about alternate remedy have also to fall to ground.
14. Section 126 on the other hand provides that after the publication
of a draft Regional plan, a Development or any other plan or town planning
scheme, if any land is required or reserved for any of the public purpose
specified in any plan or scheme, at any time the Planning Authority can
acquire it by making an application to the State Government under the Land
Acquisition Act, 1984. This procedure has not been adopted by the
respondents before us. Section 129 helps planning authority to seek urgent
possession. Thus said provisions have different goal and steps thereunder
result in divesting a citizen of his title to and loose possession of affected land
and transfer it to planning authority.
15. Perusal of notice dated 13/1/2010, addressed to one Atmaram
Vazirani, petitioner no. 1 in Writ Petition No. 1980/2010 shows that it is in six
parts. It may be reiterated here that all notices to different petitioners in
various Writ Petitions before us are identical though of different dates. By
first part, the area or portion of his shop affected by designated purpose in
Development Plan is pointed out. It is stated that its designated user is public
road and he has been using it for residence/trade or other purpose. He has
been called upon to discontinue the user thereof. The second part calls upon
him to remove the construction in affected portion within 30 days to make
that space vacant and to hand it over for proposed road widening to the
Nagpur Municipal Corporation for public convenience and proper traffic
regulation. The third part warns that in default, the action for removal of that
portion will be taken by the Corporation at the risk of the petitioner. By fourth
part, he has been called upon to produce his title documents and sanctioned
construction/building plan, within a period of 15 days. By 5th part, an offer
of compensating him by giving him 100% TDR, if he voluntarily gives the
possession of affected portion to the Corporation, is also given. He is
informed that for such TDR, he has to apply to office of Assistant Director of
Town Planning. By the sixth and last part, it is pointed out that if notice is not
complied with within the stipulated time, further action as per the provisions
of the M.R.T.P. Act will be taken. In last sentence, he is called upon to
cooperate with the Municipal Corporation in work of town development. This
notice, therefore, nowhere shows that it is issued under Section 56 of the said
Act.
16. Various judgments seen above show that even before finalization
of town planning scheme, respondents can take action under Section 126 to
acquire. Even emergent steps are permitted if circumstances warrant the
same. Through this notice or even after compliance with it, the respondents
do not become owner of affected portions to enable them to spend public
revenue on it. The development plan is finalized about 10 years back and we
do not know anything about steps taken thereafter either under Chapter V or
otherwise. Till petitioners voluntarily surrender either the possession and
ownership of affected portions for designated use to respondents, road
widening is not possible. Only discontinuance of other user or demolition of
structures on affected parts does not result in Bhandara Road widening.
Notices impugned herein and issued by the respondents therefore can not be
construed as expedient in proper planning of its areas including the interest of
amenities. Their stand in Writ Petition Nos. 69/2006, 5931/2005 on such
notices issued for widening Kradack road or Kelibag road that it constituted
merely an invitation to cooperate voluntarily appears to be plausible and
attempted change therein is unacceptable. As a result of this discussion, all
notices issued by respondents to petitioners before us for Bhandara Road
widening work can not support any coercive action against the petitioners for
its noncompliance. If petitioners have not cooperated with respondents, it is
open to respondent to proceed under MRTP Act as already indicated in the
impugned notices. As said notices have no foundation in law, no prejudice
whatsoever is caused to petitioners before us. Those notices at the most only
communicate the offers to petitioners and if not agreed to by them,are legally
un-executable and of no consequence.
17. We accordingly declare that impugned notices issued by the
respondents to petitioners about Bhandara Road widening work are not the
notices in eye of law and the same can not be executed against petitioners or
acted to their prejudice in any way. The same are merely offers made to
individuals for acceptance on voluntary basis and respondents can not take
any coercive steps on its strength as threatened therein. Respondents are
restrained from taking any action forcibly either of demolition or for recovery
of possession or for discontinuance of other user on its basis against the wish
and desire of petitioners. We have held that Section 56 is attracted only when
planning authority does not need the title and possession of land and
compliance with directions either of discontinuance or fulfillment of
conditions imposed or alteration/removal of structure is enough. In view of
this, the prayers to declare that provisions of Section 56 as not applicable
when land of citizen is reserved for public purpose in Development Plan and
is required for by planning authority to achieve said purpose are rendered
infructuous at least here due to present facts. Prayers to declare said notices
discriminatory and arbitrary as contrary to planning authorities own
statements recorded by this Court in 2006 while considering issue of Kradack
Road widening and in 2005 about Kelibag Road Widening and to quash said
notices also become infructuous as We have not recognized the impugned
communications as notices in eye of law.
18. All Writ Petitions are thus partly allowed. We are not awarding
any costs to petitioners as designated user of affected portion in Development
Plan is not in dispute. Rule is made absolute in all Writ Petitions in above
terms.
JUDGE JUDGE
Dragon.
