Bombay High Court
M/S. Bombaywala, Nagpur Acting ... vs State Of Maharashtra, Through Its ... on 16 December, 2016
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION (W) NO.1118 OF 2016
In
WRIT PETITION NO.2695 OF 2015 (DECIDED ON 15-9-2016)
1. Akbar Malik,
Aged about 52 years,
Occupation - Business,
At Malik Decor House,
Abhyankar Road, Sitabuldi,
Nagpur-440 012.
2. Atmaram Pinjomal Vajrani,
Aged about 64 years,
Occupatio0n - Business,
At Heera Sweets,
Abhyankar Road,
Sitabuldi, Nagpur-440 012.
3. Anwar H. Vali,
Aged about 69 years,
Occupation - Business,
At M/s. Altaf H. Vali,
Near Variety Square,
Sitabuldi, Nagpur-440 012. ... Applicants
Versus
1. M/s. Bombaywala,
a partnership firm, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
acting through and represented
by its Partner, Shri Govind Gehimal
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Mirpuri,
R/o Mound Road, Sadar, Nagpur.
2. M/s. Bala Shoes,
a partnership firm, having its place of
business at Sitabuldi Main Road,
Nagpur-440 012,
acting through and represented by
its Partner, Shri Ashit Chakravarty,
R/o Anant Nagar, Katol Road,
Nagpur.
3. M/s. Samrat Garments,ig
a partnership firm having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
acting through and represented by
its Partner, Shri Prasanna Modi,
R/o Mahal, Nagpur.
4. Shri Satish Sharma,
Aged adult, Occupation - Business,
Proprietor, M/s. Kids Point,
a proprietary concern, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
R/o Bajaj Nagar, Nagpur.
5. Shri Pramod Palkar,
Aged adult, Occupation - Business,
Proprietor, M/s. Chafekar Dugdha Mandir,
a proprietary concern, having its place
of business at Sitabuldi,
Main Road, Nagpur-440 012,
R/o Tilak Nagar, Nagpur.
6. M/s. Selection House,
a partnership firm, having its
place of business at Sitabuldi
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Main Road, Nagpur-440 012,
acting through and represented
by its partner, Shri Mahendra Jain,
R/o Ladpura, Itwari, Nagpur.
7. M/s. Rajkamal Readymade Stores,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its partner,
Shri Vimal Kumar Jain,
R/o Parwarpura, Itwari, Nagpur.
8. M/s. Dream Shoppe,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its Partner, Shri Raju
Rajkumar Jain, R/o Dhantoli, Nagpur.
9. M/s. Victory Watch Company,
a partnership firm, having its place
of business at Sitabuldi, Main Road,
Nagpur-440 012, acting through and
represented by its Partner,
Shri Amirali Neemuchwala,
R/o Mankapur, Nagpur.
10.Shri Sanju Kipte,
Aged Adult, Occupation - Business,
Proprietor, M/s. Vijay News Agency,
a proprietary concern, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
R/o Deonagar, Nagpur.
11.Dr. Shri Pradeep V. Rajderkar,
Aged about 48 years,
Occupation - Medical Practitioner,
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having his Clinic at Sitabuldi
Main Road, Nagpur-440 012,
R/o Hindustan Colony,
Wardha Road, Nagpur.
12.M/s. Fashion Bazaar,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its Partner, Shri Madan
Kalra, R/o Wathoda, Nagpur.
13.M/s. Gaysons,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its partner, Shri Ravindra
Shyam Agrawal, R/o Ramdaspeth,
Nagpur.
14.Shri Kishore Meshram,
Aged adult, Occupation - Business,
Proprietor, M/s. Breakfast Juice Centre,
a proprietary concern having its place
of business at Sitabuldi Main Road,
Nagpur.
15.Shri Sadanand Meshram,
Aged adult, Occupation - Business,
Proprietor, M/s. Sadanand Snacks and
Juice Centre, a proprietary concern,
having its place of business at
Sitabuldi Main Road, Nagpur-440 012,
R/o Sitabuldi, Nagpur.
16.M/s. A.S. Balasubramanian,
Aged about 63 years,
Occupation - Business,
Partner, M/s. Vishranti Gruha,
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a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, R/o Dharampeth,
Nagpur.
17.M/s. S. Ramchand,
proprietary concern, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its authorised representative,
Shri Mitesh Rambhia, R/o Laxmi Nagar,
Nagpur.
18.Shri Jagdish Waswani,
Aged adult, Occupation - Business,
Proprietor, M/s. Quality Fashions,
a proprietary concern, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012,
R/o Jaripatka, Nagpur.
19.State of Maharashtra,
through its Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032.
20.Nagpur Improvement Trust,
a statutory body constituted
under the Nagpur Improvement
Trust Act, 1936, having its
office at Station Road, Sadar,
Nagpur 440 001, through its
Chairman.
21.Divisional Officer (West),
Nagpur Improvement Trust,
Nagpur, having its office at
Station Road (West), North
Ambazari Road,
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Nagpur-440 033.
22.Superintending Engineer,
Nagpur Improvement Trust,
Nagpur, having its office at
Station Road, Sadar,
Nagpur 440 001.
23.Assistant Director,
Town Planning,
Nagpur Improvement Trust,
Nagpur, having its office at
Station Road, Sadar,
Nagpur 440 001.
24.Smt. Madhuribai Ramchandrarao Buty,
Aged Adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road,
Rahate Colony, Nagpur.
25.Shri Girish s/o Shri Ramchandrarao Buty,
Aged Adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road,
Rahate Colony, Nagpur.
26.Shri Yogeshwar s/o Shri Ramchandrarao
Buty,
Aged Adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road,
Rahate Colony, Nagpur.
27.Shri Aniruddha @ Dilip s/o
Shri Mukundrao Buty,
Aged Adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road,
Rahate Colony, Nagpur.
28.Ku. Purnima d/o Shri Vishwanathrao Buty,
Aged Adult, Occupation - Not Known,
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R/o Sukh Niwas,
Near Ramkrishna Aashram,
Dhantoli, Nagpur.
29.Shri Pushkar s/o Shri Vishwanathrao Buty,
Aged Adult, Occupation - Not Known,
R/o Sukh Niwas, near Ramkrishna
Aashram, Dhantoli, Nagpur.
30.Goel Ganga Infrastructure & Real Estate
Private Limited,
A Company incorporated and registered
under the Companies Act, 1956,
having its Registered Office at
Bombay Mutual Building, Third Floor,
Office No.17/18, 148 P.M. Road,
Fort, Mumbai 400 001;
at San Mahu Commercial Complex,
3rd Floor, 5 Bund Garden Road,
Pune 411 001 and its local office at
Plot No.92, Near Golhar Hospital,
Lendra Park, Ramdaspeth,
Nagpur 440 012.
31.Shri Jaiprakash s/o Shri Sitaram Goel,
Aged Adult, Occupation - Business,
Director, Goel Ganga Infrastructure &
Real Estate Private Limited,
R/o San Mahu Commercial Complex,
3rd Floor, 5 Bund Garden Road,
Pune 411 001 and at Plot No.92,
Near Golhar Hospital, Lendra Park,
Ramdaspeth, Nagpur 440 012.
32.Shri Atul s/o Shri Jaiprakash Goel,
Aged Adult, Occupation - Business,
Director, Goel Ganga Infrastructure &
Real Estate Private Limited,
R/o San Mahu Commercial Complex,
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3rd Floor, 5 Bund Garden Road,
Pune 411 001 and at Plot No.92,
Near Golhar Hospital, Lendra Park,
Ramdaspeth, Nagpur 440 012.
33.Shri Ajay Radeshyam Tajpuriya,
Aged Adult, Occupation - Business,
Director, Goel Ganga Infrastructure &
Real Estate Private Limited,
Plot No.N-1, 8 Cross Road, Rani Laxmi
Nagar, Nagpur 440 032.
34.Shyam Wardhane,
Aged about 62 years,
Occupation - Executive Director,
M.S.E.D.C. Ltd., G-9,
Prakashgad, Bandra (E),
Mumbai-51. ... Non-Applicants
Shri R.L. Khapre with Shri R.G. Kavimandan, Advocates for
Applicants.
CORAM : R.K. DESHPANDE & S.B. SHUKRE
, J
J .
th
Date of Reserving the Order : 8 December, 2016
Date of Pronouncing the Order : 16th December, 2016.
ORDER (Per R.K. DESHPANDE, J.) :
1. In Writ Petition No.2685 of 2015, which we decided on
15-9-2016 ("the said writ petition"), the challenge was to the
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identically worded individual notices issued to 18 petitioner-
shopkeepers by the NIT on 24-4-2015, calling upon them to vacate
the portion of their shops, leaving 8-meter depth from Sitabuldi
Main Road so as to facilitate demolition and construction of
commercial complex in Khasra Nos.315 (Part) and 320 along with
building permit, revised on 11-12-2014. The notices were issued
under the pretext of implementing the Government Resolution
dated 7-10-1997 and the compromise accepted by the Apex Court
on 8-4-2002 in Special Leave Petition No.4846 of 2002 filed by the
present review petitioners.
2. There was a dispute in the said writ petition as to the
existence of 50 feet (15 meters) wide road ("internal road") joining
Mahatma Gandhi Road on the north to Abhyankar Road on the
west in "Abhyankar Road Widening and Buty Mahal Street Scheme"
("the Scheme", for short) prepared by the Nagpur Improvement
Trust and published under Section 45 of the Nagpur Improvement
Trust Act, 1936 ("NIT Act") (which is equivalent to Section 6
notification under the Land Acquisition Act, 1894) on 23-9-1964.
Initially, the Nagpur Improvement Trust ("NIT"), which
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is the acquiring body and also the local authority constituted under
the provisions of the NIT Act itself took the stand in the said writ
petition that there existed no such internal road in the Scheme, but
subsequently it was admitted by filing an affidavit, and this fact is
also not disputed in the present petition for review.
3. The petitioners in the said writ petition, though challenged
the entire action, conceded to the position that if the Scheme is
implemented with the provision for internal road which gave some
of the shopkeepers facing to the road, they shall not have any
objection. This was opposed by the respondents in the said writ
petition. It was the stand taken by the respondents therein,
including the NIT, which is also the planning authority constituted
under the provisions of the Maharashtra Regional and Town
Planning Act, 1966 ("MRTP Act"), that in the first development
plan brought into force on 3-6-1976 and revised on 4-5-1989 and
7-1-2000, the internal road was not shown in the Scheme and by
virtue of Section 39 of the MRTP Act, the provision of internal road
subsisting in the Scheme published under Section 45 of the NIT Act
automatically came to an end and, therefore, the petitioners in the
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said writ petition could not insist for such internal road in the final
layout plan sanctioned on 15-5-2012 and the building permit
granted on 27-6-2012 and revised on 11-12-2014, to challenge the
notices impugned. We did not consider in the said writ petition,
the other provisions in the sanctioned layout and plan with the
building permit.
4.
In the said writ petition, we have decided the question of
the locus of the petitioners and the delay caused in filing the
petition apart from the following two questions, which were framed
for the decision :
"(1) Whether mere absence of proposal of "Internal
road" in the final development plan under
sub-section (6) of Section 31 of the Maharashtra
Regional and Town Planning Act and its existence in the
Scheme, published under Section 45 of the Nagpur
Improvement Trust Act, can be termed as 'variation' or
'modification', as contemplated by Section 39 of the
MRTP Act?, and
(2) Whether the impugned notices of demolition,
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based upon final layout plan sanctioned on
15-5-2012 and the building permit granted on
27-6-2012 and revised on 11-12-2014, need to be set
aside for want of Internal road, which was the part of
the Scheme sanctioned under Section 44 of the NIT
Act?"
We have held that the petitioners have established their locus, there
was no delay in filing the petition, and the questions framed are
answered by holding that (i) mere absence of proposal of internal
road in the final development plan under sub-section (6) of
Section 31 of the MRTP Act and its existence in the Scheme
published under Section 45 of the NIT Act, cannot be termed as
"violation" or "modification", as contemplated by Section 39 of the
MRTP Act, and (ii) the impugned notices based upon the final
layout plan sanctioned on 15-5-2012 and the building permit
granted on 27-6-2012 and revised on 11-12-2014 need to be set
aside for want of internal road, which was the part of the Scheme
sanctioned under Section 44 of the NIT Act.
5. The operative portion of the judgment delivered by us in
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the said writ petition is reproduced below :
"89. In the result, we allow this petition and pass
order as under :
(1) All the notices of demolition dated 24-4-2015
issued by the Nagpur Improvement Trust, at Annexure-W
(Collectively) to the petition, are hereby quashed and set
aside.
(2) We leave it open for the Nagpur Improvement
Trust to issue fresh notices of demolition to the
petitioners after the sanctioned layout plan
dated 15-5-2012, the building permit granted 27-6-
2012 and revised on 11-12-2014 as well as the
construction, if any, carried out are brought in
conformity with the Scheme published under Section 45
of the NIT Act on 23-6-1964.
90. Rule is made absolute in above terms. No order as
to costs."
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6. Shri R.L. Khapre, the learned counsel for the review
petitioners, submits that the judgment delivered by this Court in
the said writ petition is challenged by the NIT and others by filing
different special leave petitions, one of being Petition for Special
Leave to Appeal (C) No.32089 of 2016, in which the Apex Court
has passed an order on 25-11-2016 as under :
"
List the matters on 7th February, 2017.
The respondents shall maintain the status quo as
on today, with regard to possession.
We may further clarify that as of now the
impugned judgment of the High Court would be binding
inter-parties only."
Shri Khapre submits that the clarification given by the Apex Court
that the impugned judgment of the High Court would be binding
inter-parties only, was at the instance of the review petitioners and
pursuant to it, the present review petition has been filed. We do
not find any reason to doubt such statement made before us.
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7. This review petition was listed before us initially for the
first time on 2-12-2016, and after hearing Shri Khapre for review
petitioners for quite some time, we adjourned the matter to 8-12-
2016 with a clear understanding that this Court shall hear the
review petitioners not only on the maintainability of this review
petition, but also on the merits of their claim for recall of the
judgment delivered by this Court in the said writ petition.
8. This review petition was accordingly listed before us for
admission and hearing on 8-12-2016. Shri Khapre for the review
petitioners urged that unless the said judgment is recalled, the
review petitioners cannot be called upon to argue the matter on
merits, as it would amount to post-decisional hearing, which
cannot be a substitute to a pre-decisional hearing. For this
purpose, he has relied upon the following decisions of the Apex
Court.
(1) Prabodh Verma and others v. State of U.P. and
others, reported in AIR 1985 SC 167.
(2) Institute of Chartered Accountants of India v.
L.K. Ratna and others, reported in
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AIR 1987 SC 71 - [Para 17].
(3) H.L. Trehan and others v. Union of India and
others, reported in AIR 1989 SC 568.
(4) Asit Kumar Kar v. State of W.B. and others,
reported in AIR 2009 SC (Supp) 282.
9. It is not necessary for us to consider and deal with the
aforesaid decisions of the Apex Court, for the reason that the
review petitioners were not parties to the writ petition, which we
have decided, and the Apex Court has made it clear that our
judgment would be binding inter-parties only. We, therefore,
clearly expressed in the open Court that we are going to examine
the rights of the review petitioners independently, and if we find
that the interest of the review petitioners is required to be
protected in any manner, then nothing can prevent us from taking
a view - even contrary to one which we have already taken in the
said writ petition, but if we do not find the merit in the contentions
raised, then the decision rendered by us in the said writ petition
shall obviously bind the review petitioners also. We also made it
clear to Shri Khapre that we shall not restrict his arguments to the
principles of review or recall of the judgment, but shall consider
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the contentions raised on their own merits. We also asked
Shri Khapre to formulate the written propositions on facts and law
both in advance so that all the points on merits can be dealt with
independently. Accordingly, such written propositions are given to
us in the pursis dated 8-12-2016, which is marked as "X" for
identification.
10.
Shri Khapre took us through the provisions of
Sections 39, 44, 45, 46, 58 and 59 of the NIT Act, and the
provisions of Section 37(2) and 65 of the MRTP Act. He also
invited our attention to the Government Resolution
dated 7-10-1997, the award passed for acquisition of 1,14,079.36
square feet of land on 16-12-1997 as against the area of
2,71,552.60 square feet of land covered by the notification under
Section 45 of the NIT Act issued on 23-9-1964, and the event of
taking possession of the land by the NIT on 31-12-1997. He also
invited our attention to the notification published under sub-
section (2) of Section 37 of the MRTP Act on 22-6-2007.
11. The basic point urged by Shri Khapre for the review
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petitioners is that the attention of this Court was not invited to the
aforesaid provisions of the NIT Act, the MRTP Act and the effect of
passing the Government Resolution dated 7-10-1997, and the
notification issued under Section 37(2) of the MRTP Act. He
submits that several factual and legal aspects were not brought to
the notice of this Court while deciding the said writ petition, and if
all these provisions and the facts having material bearing on the
issues involved before this Court had been brought to the notice of
this Court, the judgment in the said writ petition would have been
different.
12. What we gather from the arguments of Shri Khapre is that
the review petitioners wanted to oppose the said writ petition
rather than asserting their own independent legal rights, if any.
In fact, what we have done in the said writ petition is to see that
the NIT discharges its statutory obligations to execute the Scheme
as it is in the light of the compromise effected before the Apex
Court on 8-4-2002. The NIT, owners and developers, under the
pretext of following the terms of the Government Resolution
dated 7-10-1997 and the compromise dated 8-4-2002, tried to alter
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the Scheme in colourable exercise of power, which, according to
us, was impermissible in law. This has resulted in granting the
reliefs to the petitioners in the said writ petition. In our view, the
review petitioners have no right to oppose the reliefs claimed in the
original writ petition.
13. Shri Khapre is right in urging that the tenants, who are the
shopkeepers, including the petitioners in earlier writ petition as
well as the review petitioners, ceased to have the tenancy rights in
respect of the land in question, which stood extinguished upon
statutory vesting of the property in the NIT - free from all
encumbrances. The rights of all the tenants flow from the terms of
compromise dated 8-4-2002 accepted by the Apex Court. At the
most, if there is violation of such terms, then the tenants can be
said to have some right which accrued to them. The review
petitioners are not coming before this Court with such a case. On
the contrary, what they are saying is that the terms of compromise
no longer bind them. This hostile attitude towards the terms of
settlement disentitles them to any relief from this Court in this
review petition.
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14. In spite of the aforesaid position, we proceed to deal with
the contentions raised before us on merits. Shri Khapre invited our
attention to Section 46 of the NIT Act to urge that the Scheme
published under Section 45 of the NIT Act can be altered before it
has been completed and, according to him, the acquisition was
complete only upon passing of award in respect of 1,14,079.36
square feet of land on 16-12-1977 and taking possession of it on
31-12-1977. He has pointed out to us that the area of land
acquisition was reduced to 1,14,079.36 square feet in the award, as
against the area of 2,71,552.60 square feet shown in the
notification under Section 45 of the NIT Act. He submits that by
the Government Resolution dated 7-10-1997, there was
reconstitution of plots in the Scheme, which was approved by the
State Government under Section 65 of the MRTP Act and it can
operate as an order under Section 46-A of the NIT Act. He,
therefore, submits that the entire Scheme stood modified by virtue
of the Government Resolution dated 7-10-1997 and issuance of the
notification under sub-section (2) of Section 37 of the MRTP Act
was the another step. He submits that there was hardly any scope
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for this Court to interfere in the notices impugned in the said writ
petition.
15. In order to consider the basic argument of
Shri Khapre, we have to see the provision of Section 27 of the NIT
Act, which deals with the types of improvement schemes, and it is
reproduced below :
"27. Types of improvement schemes.
An improvement scheme shall be of one of the
following types or may combine any two or more of such
types, or of any special features thereof, that is to say,-
(a) a general improvement scheme;
(b) a re-building scheme;
(c) a re-housing scheme;
(d) a street scheme;
(e) a deferred street scheme;
(f) a development scheme;
(g) a housing accommodation scheme;
(h) a future expansion or improvement scheme;
(i) a drainage or drainage including sewage disposal
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scheme."
We are concerned with a street scheme under clause (d) of
Section 27 above. A street scheme is governed by Section 31 of
the NIT Act, which is also reproduced below :
"31. Street Scheme.
(1) Whenever the Trust is of opinion that, for the
purpose of-
(a) Providing building sites, or
(b) remedying defective ventilations, or
(c) creating new or improving existing means
of communications and facilities for
traffic, or
(d) affording better facilities for conservancy
and drainage,
it is expedient to lay out new streets or alter
existing streets (including bridges, causeways and
culverts), the Trust may pass a resolution to that
effect, and shall then proceed to frame a street
scheme for such area as it may think fit.
(2) A street scheme may, within the limits of the
area comprised in the scheme provide for-
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(a) the acquisition of any land which will, in the
opinion of the Trust, be necessary for its execution;
(b) the re-laying out of all or any of the lands so
acquired, including the construction and
re-construction of buildings by the Trust or by any
other person and the laying-out, construction and
alteration of streets and thoroughfares;
(c) the draining water-supply, and lighting of
streets and thoroughfares so laid out, constructed
or altered;
(d) the raising, lowering, or reclamation of any
land vested in, or to be acquired by the Trust for
the purposes of the scheme;
(e) the formation of open spaces for the better
ventilation of the area comprised in the scheme;
(f) the acquisition of any land adjoining any
street, thoroughfare, or open space to be formed
under the scheme."
The objects of formulating a street scheme, as specified in
clauses (a) to (d) of sub-section (1) of Section 31, are to provide
building sites, or remedying defective ventilations, or creating new
or improving existing means of communications and facilities for
traffic, or affording better facilities for conservancy and drainage.
Such scheme may provide for acquisition of land necessary for its
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execution, construction, re-construction of buildings by the Trust or
by any other person and the laying-out, construction and alteration
of streets and thoroughfares, formation of open spaces for better
ventilation of the area comprised in the scheme, acquisition of any
land adjoining any street, thoroughfare, or open space to be
formed under the scheme, etc., as contained in sub-section (2) of
Section 31 of the NIT Act.
16. This case is concerned with the sanction of a street scheme
by the State Government under Section 44 of the NIT Act. Section
45 of the NIT Act deals with the notification of sanction of
improvement scheme and other regarding vesting of property in
Trust, and it is, therefore, reproduced below :
"45. Notification of sanction of improvement
scheme and other regarding vesting of property in
Trust.
(1) Whenever the State Government sanctions an
improvement scheme, it-
(a) shall announce the fact by notification and,
except in the case of a deferred street scheme,
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development scheme, or future expansion or
improvement scheme, the Trust shall forthwith
proceed to execute the same;
(b) may order that any street, square, park, open
space or other land, or any part thereof, which is
the property of the Government and managed by
the Central Government or the State Government,
shall, subject to such conditions as it may impose,
vest in the trust for the purpose of the scheme.
(2) The publication of a notification under
sub-section (1) in respect of any scheme shall be
conclusive evidence that the scheme has been duly
framed and sanctioned."
In this case, we are not concerned with deferred street scheme,
development scheme or future expansion scheme or improvement
scheme, referred to in sub-section (1)(a) of Section 45 above. We
are concerned with the street scheme only. The effect of granting
sanction to the street scheme under Section 44 is provided under
Section 45 of the NIT Act, reproduced above. Clause (a) of
sub-section (1) of Section 45 creates a statutory obligation upon
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the NIT to forthwith proceed to execute such street scheme. The
publication of notification under sub-section (1) of Section 45 is
the conclusive evidence that the Scheme has been duly framed and
sanctioned, as stipulated in sub-section (2) therein. Any alteration
in the Scheme can be done only under Section 46 of the NIT Act by
following the procedure prescribed under Sections 39, 41 and 43
therein.
17. In paragraphs 51, 52 and 53 of the judgment in the said
writ petition, we have held as under :
" Provisions
of the Scheme and the effect of its
publication under Section 45 of the NIT Act :
51. After taking survey of the relevant provisions of
the NIT Act as well as the MRTP Act, we would like to
crystallize the position for the purposes of deciding the
controversy involved in the present case. The Nagpur
Improvement Trust Act, 1936 was brought into force
with effect from 1-1-1937, and the NIT is the local
authority entrusted with the duty of carrying out the
provisions of the NIT Act and it continues to operate as
such till this date. On 29-10-1960, the Board of
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Trustees of NIT passed a resolution to frame a Scheme,
i.e. "Abhyankar Road Widening & Buty Mahal Street
Scheme" under Section 31 of the NIT Act, invoking
acquisition of lands Khasra Nos.320 and 315 (Part) of
Mouza Sitabuldi, Nagpur ("land in question") as per
the list and the map enclosed therewith. The existing
use of land in question on the date of such Scheme was
essentially for residential purposes with Internal road,
one cinema theatre and the peripheral area being used
for shops-cum-office purposes.
52. The objects of the Scheme published under
Section 45 of the NIT Act to be achieved in terms of
clauses (a) to (d) of sub-section (1) and the matters to
be provided in the Scheme in terms of clauses (a) to (f)
under sub-section (2) of Section 31 of the NIT Act, are
reflected in the Scheme. The Scheme provided for the
building sites, viz. the shops-cum-office complex
covering the internal area of the Scheme, removing
existing ugly and ill-ventilated premises on Mahatma
Gandhi Road and Abhyankar Road, parking space open
to sky, etc. It provides for creating new or improving
existing means of communications and facilities for
traffic by way of Internal road of 50 feet (15 meters)
wide to join Mahatma Gandhi Road on the north and
Abhyankar Road on the west to circulate the traffic
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from Variety Island at the junction of 50 feet road with
Mahatma Gandhi Road and Abhyankar Road to avoid
the congestion, apart from other roads.
53. The said Scheme was sanctioned under
Section 44 and published under Section 45 of the NIT
Act on 23-9-1964, creating a statutory obligation upon
the NIT to execute the Scheme as it is, unless it is altered
and modified under Section 46 of the said Act.
Shri Sunil Manohar, who led the arguments for the
respondents, also stated in response to our query that
the provision of Internal road could not be dispensed
with, in the absence of exercise under Section 46 of the
NIT Act. It is thus clear that in the absence of the
development plan under Section 31 of the MRTP Act,
the Scheme published under Section 45 of the NIT Act
was required to be executed by the NIT as it is, with the
provision of Internal road without any change,
alteration or modification."
18. The argument of Shri Khapre is that the attention of this
Court was not invited to Section 46 of the NIT Act dealing with
alteration of improvement scheme after sanction, which is
reproduced below :
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"46. Alteration of improvement scheme after
sanction.
At any time after an improvement scheme has
been sanctioned by the State Government and before it
has been completed, the Trust may alter it:
Provided as follows:-
(a) If any alteration is likely to increase the
estimated net cost of executing a scheme by more
than Rs.50,000 or 5 per cent. of such cost, such
alteration shall not be made without the previous
sanction of the State Government;
(b) If any alteration involves the acquisition,
otherwise than by agreement of any land the
acquisition of which has not been sanctioned by
the State Government the procedure prescribed in
the foregoing sections of this Chapter shall, so far
as applicable, be followed as if the alteration
were a separate scheme.
(c) if owing to changes made in the course of
a scheme, any land not previously liable under
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the scheme to the payment of a betterment
contribution subsequently becomes liable to such
payment, the provisions of sections 39, 41 and
43 shall, as far as they are applicable, be
followed in any such case."
Shri Khapre submits that after sanction of the Scheme under
Section 45 of the NIT Act, the State Government decided to alter
the Scheme in exercise of power under Section 46 above, by
issuing the Government Resolution dated 7-10-1997 before
completion of the Scheme and it is thereafter that the award was
passed on 16-12-1977 in respect of acquisition of the reduced area
of 1,14,079.36 square feet as against the total area of 2,71,552.60
square feet, shown in the notification under Section 45 of the NIT
Act. He further submits that the Government Resolution
dated 7-10-1997 was for reconstitution of plots under Section 65 of
the MRTP Act, which has the effect of alteration of the Scheme, as
contemplated by Section 46-A of the NIT Act.
19. Before we deal with the aforesaid arguments, we would
like to note that the Government Resolution dated 7-10-1997 and
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the notices of demolition issued to the review petitioners at that
point of time, were challenged before this Court in Writ Petition
No.798 of 2002. The said writ petition was dismissed by the
Division Bench of this Court on 22-2-2002. The review petitioners
preferred Special Leave Petition No.4846 of 2002, in which a
compromise was entered into between the parties on 8-4-2002,
and accepting it, the Apex Court disposed of the SLP on the very
same date by observing that the compromise is voluntarily and
lawfully arrived at between the parties, and the parties agree to
abide by the terms of the compromise and the tenants and the
landlords agree to vacate the area out of the property in their
possession for the purposes of road widening of Sitabuldi Main
Road-60 feet, Abhyankar Road-80 feet, internal road-50 feet, and
the parking. The review petitioners, who are bound by it, cannot
now urge that the provision of internal road-50 feet (15 meters),
as was agreed to be maintained under the compromise, which is
also binding upon the NIT, should not have been maintained by
this Court in the decision rendered in the said writ petition.
20. Be that as it may, it was not the case even of the NIT
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before us in the said writ petition that there was any proposal for
alteration of the Scheme in terms of Section 46 of the NIT Act
submitted to the State Government. The mandate of internal road
and the effect of changes over a period are dealt with by us in
paragraphs 70 and 71 of the judgment in the said writ petition,
which are reproduced below :
" "Internal road", a soul or basic structure of the
Scheme - cannot be altered :
70. In fact, as we see from the features of the Scheme
provided to us by the NIT and the proposals in the
development plan, two roads, viz. - (i) Mahatma Gandhi
Road, and (ii) Abhyankar Road, which existed earlier, are
shown in the development plan. Both the aforesaid roads
are beyond the boundaries of the Scheme. The Internal road
is inside the boundaries of the Scheme area, provided as
thoroughfare to improve the existing means of
communications and facilities for traffic and it does not find
place in the development plan. Thus, the execution of the
Scheme involves four major functions, viz. - (i) providing
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huge commercial complex inside the Scheme area to
accommodate the tenants apart from others, (ii) widening of
Mahatma Gandhi Road and Abhyankar Road outside the
Scheme area, (iii) providing 50 feet (15 meters) wide
Internal road along with other two roads inside the Scheme
area to ease out the traffic and removing congestion, and
(iv) to provide space open to sky for parking. We agree with
Shri Subodh Dharmadhikari for the petitioners that the
Internal road constitutes the soul or basic structure of the
Scheme, which cannot be altered or dispensed with. It has,
therefore, to be held that the Scheme containing Internal
road has to be executed as it is, unless it is altered or
modified under Section 46 of the NIT Act.
Whether entire Scheme became non-existent by passage
of time and the changes? :
71. After the final development plan was brought into
force, the NIT had passed a resolution on 31-12-1981
on page 685 of the paper-book to implement the said Scheme
by immediately acquiring the lands in question. Such
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decision has been reiterated on 17-8-1984 in the meeting of
the NIT, the minutes of which, are at page 679. In the
affidavit filed by the NIT on 14-2-2002 in response to Writ
Petition No.688 of 2002 filed by the tenants on Abhyankar
Road, a specific stand is taken in para 9, which is reproduced
below :
"9.
ig ... Thus, in these circumstances, the petitioner
cannot claim that the construction of the Abhyankar
Road should be done as per the Development Plan. It
is submitted that this respondent is executing the
Abhyankar Road Widening and Buty Mahal Street
Scheme, in which, the width of Abhyankar Road is
shown as 24 meters. It is further submitted that this
road is in the hub of main commercial activity. It is
further submitted that due to traffic congestion, this
road is utilized as one way road. That, by widening
of this road, it will become two way road in addition
to the considerable amount of parking space will also
become available. Thus, in these circumstances, in the
larger interest of the public at large, this respondent is
implementing the scheme, to which, the consent of the
land-owner is already accorded. Moreover, the
land-owners themselves have submitted a proposal for
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rehabilitation of all their tenants, who are in
occupation of the premises, which is submitted to this
respondent with their signatures. Thus, in these
circumstances, all the occupants will not be thrown out
of the business, as the land-owners have started
constructing alternative accommodation
to accommodate their tenants temporarily. It is
further submitted that even many of the occupants
have shown their willingness and started vacating the
shops. ..."
Apart from above, there is ample material available on
record to hold that the NIT continued to execute the Scheme
and it is thus obvious that the NIT was very clear in its mind
to implement the Scheme, even after revision to the
development plan on 7-1-2000. In spite of widening of
Abhyankar Road from 12 meters to 24 meters to
accommodate two-way traffic, the stand of the NIT is clear to
implement the Scheme in larger public interest. It is not the
stand of the NIT that the Scheme no longer subsists or
survives after coming into force of the development plan.
The argument of Shri Sunil Manohar that there is evolution
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of the Scheme over a period from 1960 to 2015, is neither
supported by the NIT nor can be accepted for the reason that
the evolution cannot be de hors the provisions of law. We,
therefore, reject the contention of Shri Sunil Manohar for the
respondents that after coming into force of the development
plan, the said Scheme became non-existent or was completely
eclipsed."
21. The only stand taken by the NIT was that the road and the
parking area shown in the Scheme are not shown in the
development plan, and as per the Government Resolution dated 7-
10-1997, the development has to be as per the development plan.
In paragraphs 75 and 76 of the judgment in the said writ petition,
we have held as under :
"75. It is surprising that without there being any
proposal, discussion and decision of the NIT on the vital
aspect of existence and continuation of Internal road in
the Scheme published under Section 45 of the NIT Act,
there is a sanction of the layout plan and building permit
without the provision of Internal road. We also put a
mca1118.16.odt
specific question to Smt. Bharti Dangre for the NIT, and
she fairly conceded that there was neither any such
proposal nor any decision of the NIT thereon. Perusal of
the Government Resolution shows that its object is only to
grant relaxation under Rule 5(2) of the Nagpur
Improvement Trust (Land Disposal) Rules, 1993 from
auctioning the property and to allot reconstituted plots to
the land-owners upon certain terms and conditions
stipulated therein, and one of which being to
accommodate all the tenants in the Scheme, which was
not there in the earlier Scheme framed by the NIT. The
land was allotted to the owners on 50% premium of the
market rate so as to enable the land owners to make the
Scheme viable or feasible and to accommodate all the
tenants in it."
"76. In our view, the said Government Resolution
cannot be construed to mean that the Scheme published
under Section 45 of the NIT Act containing Internal road
no longer survives. The provision of Internal road can be
dispensed with only by having recourse to the provision of
Section 46 of the NIT Act and that has not been done in
the present case. As pointed out earlier, the NIT is
playing dual role - one that of the local authority under
the NIT Act, and the other that of the planning authority
under the MRTP Act. The reference in the said
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Government Resolution is to the Scheme framed under the
NIT Act and not to the development plan under the MRTP
Act. In our view, the direction in the Government
Resolution is for development as per the Scheme. At any
rate, looking to the purpose of the Government
Resolution, even if the reference is construed as to the
development plan, it does not make any difference in view
of an interpretation of various provisions."
22.
The Government Resolution dated 7-10-1997 refers to
Rule 5(2) of the Nagpur Improvement Trust Land Disposal Rules,
1983. We reproduce below Rule 5 of the said Rules :
" Part III
Manner of Disposal of Land
5. General.
(1) No piece of Government land vested in or managed
by the Trust shall be transferred except with the general
or special sanction of the Government given in that
behalf.
(2) Except as otherwise provided in sub-rule(1) in
Part VI of these rules, all other lands vested in and
mca1118.16.odt
acquired by the Trust shall be disposed of by the Trust
by--
(i) holding public auction; or
(ii) inviting tenders by public advertisement; or
(iii) making offers to or accepting offers from any
Government, Local Authority, Public Sector
Undertaking or a body corporate which is owned or
controlled by Government;
(iv) inviting applications from persons or bodies of
persons who are eligible for allotment of plots under
rule 4, by public advertisement to be published at least
in one leading local newspaper each in Marathi, Hindi
and English on the basis of predetermined premium or
other considerations or both and deciding these
applications by drawing lots, if necessary, as it may
determine, from time to time, in accordance with the
rules hereinafter appearing.
(v) Land for public amenities such as for primary
school, vehicle stand, public latrine or urinal, public
library, reading room, hospital, dispensary or such
other purpose may be transferred to the Corporation of
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the City of Nagpur either free of premium and ground
rent or at nominal premium and ground rent as the
Trust may determine in each case.
(3) Except as otherwise provided in sub-rule (1) and
in Part VI of these rules, the buildings vested in and
acquired by the Trust shall be disposed of by the Trust
by--
(i) inviting applications; or
(ii) calling for public tenders; or
(iii) auction;
along with such land and on such terms as may be
agreed to by the Trust and the transferee having
regard to the use for which the building is intended, by
public advertisement to be published at least in one
leading newspaper each in Marathi, Hindi and English
on the basis of predetermined premium or other
considerations or both by deciding these applications
by drawing of lots, if necessary."
Upon perusing the aforesaid Rule, we do not find that it empowers
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the State Government to alter the Scheme published under
Section 45 of the NIT Act. We are also unable to accept the
contention that issuance of this Government Resolution is an
exercise of the power by the State Government for the purposes of
alteration of Scheme under Section 46 of the NIT Act.
23. It is significant to note that the aforesaid rule operates
only upon the vesting of the land in the NIT. Hence, before issuing
the Government Resolution on 7-10-1997, the lands were treated
as vested in the NIT and it cannot be said that the acquisition was
not complete, as contemplated under Section 46 of the NIT Act.
We have held that the object of issuing this Government Resolution
dated 7-10-1997 is to make all the tenants as partners in the
Scheme published under Section 45 of the NIT Act, and the
approval of the State Government was for disposal of land in
relaxation of Rule 5 of the Nagpur Improvement Trust Land
Disposal Rules, 1983 by the NIT in favour of the land-owners, viz.
Buty Family, by executing a registered lease-deed on 10-2-2010 in
favour of the owners with an understanding that all the
tenants/shopkeepers shall be accommodated in the Scheme to be
mca1118.16.odt
executed under the supervision of the NIT. In the absence of the
Government Resolution dated 7-10-1997, the lease-deed
dated 10-2-2010 and the compromise dated 8-4-2002, all the
tenants could have been legally evicted in exercise of statutory
power by the NIT.
24. So far as the reduction in the area of land acquisition from
2,71,552.60 square feet to 1,14,079.36 square feet in the award
dated 16-12-1997 is concerned, Section 68 of the NIT Act
regarding abandonment of acquisition in consideration of special
payment is relevant and, therefore, it is reproduced below :
"68. Abandonment of acquisition in consideration
of special payment.
(1) Wherever in any area comprised in any
improvement scheme under this Act the State
Government has sanctioned the acquisition of land
which is subsequently discovered to be unnecessary
for the execution of the scheme, the owner of the
land, or any person having an interest therein may
make an application to the Trust, requesting that the
mca1118.16.odt
acquisition of the land not required for the purposes
of the scheme should be abandoned on his executing
an agreement to observe conditions specified by the
Trust in respect of the development of the property
and to pay a charge to be calculated in accordance
with sub-section (2) of section 69 of the Act.
(2) The Trust shall admit every such application if it-
(a) reaches it before the time fixed by the Deputy
Commissioner under section 9 of the Land
Acquisition Act, 1894, for making claims in
reference to the land, and
(b) is made by any person who has an interest in
the land or holds a lease thereof, with an
unexpired period of seven years.
(3) On the admission by the Trust of any such
application, it shall forthwith inform the Deputy
Commissioner; and the Deputy Commissioner shall
thereupon stay for a period of three months all
further proceedings for the acquisition of the land,
and the Trust shall proceed to fix the conditions on
which the acquisition of the land may be
abandoned.
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(4) When an agreement has been executed in
pursuance of sub-section (1) in respect of any land
the proceedings for the acquisition of the land shall be
deemed to be abandoned.
(5) The provisions contained in sections 70, 71, 72,
73 and 74 relating to the assessment, interest,
recovery and payment of betterment charge and civil
suits shall apply mutatis mutandis to the assessment,
interest, recovery and payment of abandonment
charge and civil suits in respect thereof."
25. The reduction in the area or abandonment of the part of
the land acquired can be done at the time of passing of an award
also, which is apparent from the scheme of the provisions
preceding Section 68 of the NIT Act above. The award in the
present case was passed on 16-12-1997, i.e. after the decision
contained in the Government Resolution dated 7-10-1997. In
terms of Section 68 of the NIT Act, the NIT appears to have
released the portion of the land under acquisition to the land
owners upon certain terms and conditions included in the
mca1118.16.odt
agreement of lease dated 10-2-2010. Be that as it may, what is the
bearing of this event on the question of alteration or modification
of the Scheme published under Section 45 of the NIT Act, has not
been demonstrated. It is after the award was passed on
16-12-1997 and the possession of the land was taken by the NIT,
the compromise before the Apex Court was entered into between
the parties on 8-4-2002, and what we have done in the said writ
petition is to see that the Scheme, as has been settled between the
parties by executing a compromise-deed accepted by the Apex
Court, has to be implemented as it is.
26. The contention so far based upon Section 65 of the MRTP
Act is concerned, the provision thereof need to be seen, and hence
it is reproduced below :
"65. Reconstituted plot
(1) In the draft scheme, the size and shape of every
reconstituted plot shall be determined, so far as may be,
to render it suitable for building purposes, and where a
plot is already built upon, to ensure that the buildings as
far as possible comply with the provisions of the scheme
mca1118.16.odt
as regards open spaces.
(2) For the purpose of sub-section (1), a draft
scheme may contain proposals--
(a) to form a final plot by reconstitution of an
original plot by alteration of the boundaries of the
original plot, if necessary;
(b) to form a final plot from an original plot by the
transfer wholly or partly of the adjoining lands;
(c) to provide, with the consent of the owners, that
two or more original plots each of which is held in
ownership in severally or in joint ownership shall
hereafter, with or without alteration of boundaries be
held in ownership in common as a final plot;
(d) to allot a final plot to any owner dispossessed of
land in furtherance of the scheme; and
(e) to transfer the ownership of an original plot from
one person to another."
The provision applies only where the scheme is framed under the
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MRTP Act by the Planning Authority, which is at the stage of
approval to the draft scheme. In the present case, it is not the
scheme framed under the MRTP Act which is to be implemented,
but the scheme published under Section 45 of the NIT Act which is
required to be implemented. The Scheme was published on
23-9-1964 and at that time even the MRTP Act was not brought
into force. Be that as it may, assuming that by the Government
Resolution dated 7-10-1997 the plot was reconstituted in terms of
Section 65, reproduced above, there is no explanation as to why
the compromise dated 8-4-2002 subsequently entered into
between the parties before the Apex Court should not be given
effect to. It is not the case that the internal road was not shown to
exist in the compromise accepted by the Apex Court. The provision
of Section 65 of the MRTP Act is of no help to the review
petitioners to urge that the Scheme stood modified by virtue of it.
27. So far as the question of change in the development plan
is concerned, a notification under sub-section (2) of Section 37 of
MRTP Act was issued on 22-6-2007 and this aspect is dealt with in
paragraphs 56 and 57 of the judgment in the said writ petition,
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which are reproduced below :
" Whether there is actual inconsistency - to what extent :
56. Inconsistency and variation in the Scheme under
Section 45 of the NIT Act and the development plan under
Section 31 of the MRTP Act became apparent. The Scheme
for shop-cum-office complex was to be executed in the area
meant for residential use and though it was possible prior to
coming into force of the development, it was not possible to
execute such Scheme contrary to the provisions contained in
the development plan. The construction of complex for
commercial purposes was not possible in residential zone.
The option was either to alter the Scheme for residential
purpose or to carry out suitable modification to provide user
for commercial purpose under Section 37 of the MRTP Act in
the development plan."
" Removal of inconsistency :
57. Accordingly, a notification under sub-section (2) of
Section 37 of the MRTP Act was issued on 22-6-2007, and
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the relevant portion of it, is reproduced below :
" "Now therefore, in exercise of the powers
conferred under subsection 2 of the section 37 of the
said Act, Govt. hereby sanctions the said modification
of the said lands and for that purpose amends the
above referred notification dated 7th January, 2000 by
inserting the following new entry in its appended
schedule of modification.
ig "Abhyankar road passing through the land
Kh.No.320, 315 (part) Mouza Sitabardi is widened
from 12 mt. To 24 mt. and the area admeasuring
15028.29 sq.mt. of Kh. No.320, 315 (part) Mouza
Sitabardi is deleted from Residential Zone and lands so
released included in Commercial Zone and said lands
are deleted from Congested boundary as shown on
plan". ''
In fact, the aforesaid notification brings out major changes,
viz. - (i) widening of Abhyankar Road from 12 meters to
24 meters (40 feet x 80 feet), (ii) the internal area of the
Scheme is deleted from residential zone and included in the
commercial area, and (iii) the Scheme area is deleted from
congested boundary and released in non-congested area.
Thus, the inconsistency was removed. The proposals in the
development were brought in tune with those in the Scheme
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so that the Scheme is effectively implemented."
28. It is not necessary for us to deal with other aspects of the
matter, which are highlighted in the points of arguments, for the
reason that we have left the issue to be decided by the NIT as to
how and in what manner the sanctioned layout plan and building
permit should be brought in conformity with the Scheme published
under Section 45 of the NIT Act. The significance of the Scheme
and internal road is also highlighted in the report of the Chairman
of NIT, which we have noted in the said judgment. The notices
issued to the original petitioners clearly indicate that to implement
the terms of compromise, the notices of demolition were issued.
Perusal of the compromise shows that the same takes care of all
the situations, and it is for the NIT to see as to how and in what
manner the sanction should be moulded by keeping the provision
of internal road intact while sanctioning the layout plan and
issuing the building permit.
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29. For the reasons stated above, the review petition is
dismissed.
(R.K. Deshpande, J.)
(S.B. Shukre, J.)
Lanjewar,
PS
