Bombay High Court
Ataur Rahman Khan S/O Zulfiquar ... vs The State Of Maha., Through ... on 18 October, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1501 OF 2016
ig with
WRIT PETITION NO.1448 OF 2016
with
WRIT PETITION NO.1395 OF 2016
with
WRIT PETITION NO.5056 OF 2016
1) WRIT PETITION NO.1501 OF 2016 :
1. Ramdas s/o. Marotrao Kathle,
Aged about 78 years, Occ.
Business.
2. Smt.Radhadevi w/o. Kanhaiyalal
Premani, Aged about 55 years,
Occ.Business.
3. Rajesh s/o. Jeevandas Batra,
Aged about 78 years, Occ.
Business.
4. Harish s/o. Ishwardas Somyani,
Aged about 43 years, Occ.
Business.
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5. Ramavatar s/o. Mohanlal Sharma,
Aged about 50 years, Occ.
Business.
6. Vinod s/o. Jeumal Manshani,
Aged about 38 years, Occ.
Business.
7. Murarilal s/o. Mohanlal Sharma,
Aged about 60 years, Occ.
Business.
8. Jagmohan s/o. Monoharlal Khandelwal,
Aged about 58 years, Occ.
Business.
9. Mahesh s/o. Thakurdas Jiwani,
Aged about 50 years, Occ.
Business.
10.Manoj Kishanchand Talreja,
Aged about 45 years, Occ.
Business.
11.Ramesh s/o. Ramchand Arya,
Aged about 54 years, Occ.
Business.
12.Mohanlal s/o. Bhakhatmal Chawla,
Aged about 65 years, Occ.
Business.
13.Sunilkumar s/o. Shyamsundar Choudhary,
Aged about 52 years, Occ. Business.
14.Vinod s/o. Kishanchand Paryani,
Aged about 45 years, Occ.
Business.
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15.Nandlal s/o. Totalds Chelwani,
Aged about 51 years, Occ.
Business.
16.Vitthal s/o. Shankarrao Gawande,
Aged about 63 years, Occ.
Business.
17.Meghraj s/o. Basantram Jham,
Aged about 89 years, Occ.
Business.
18.Lalchand s/o. Hemandas Ruchandani,
Aged about 43 years, Occ.
Business.
19.Manoj s/o. Sayaditamal Batra,
Aged about 48 years, Occ.
Business.
20.Ashok s/o. Govindlal Gugnani,
Aged about 56 years, Occ.
Business.
21.Satish s/o. Chimanlal Popali,
Aged about 62 years, Occ.
Business.
22.Tolaram s/o. Daulatram Balwani,
Aged about 59 years, Occ.
Business.
23.Vijaykumar s/o. Karamchand Kewalramani,
Aged about 54 years, Occ.
Business.
24.Kishore s/o. Gurumukhdas Chawla,
Aged about 58 years, Occ.
Business.
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25.Hanuman Prasad s/o. Dhanalal Sanghi,
Aged about 76 years, Occ.
Business.
26.Nilesh s/o. Prabhakar Dawale,
Aged about 35 years, Occ.
Business.
27.Kailash s/o. Devchand Khedkar,
Aged about 60 years, Occ.
Business.
28.Rajesh s/o. Ramprakash Punyani,
Aged about 52 years, Occ.Business.
29.Kishor s/o. Korimal Bhakhtani,
Aged about 60 years, Occ.
Business.
30.Manoharlal s/o. Arjundas Nanakani,
Aged about 59 years, Occ.
Business.
31.Tikamdas s/o. Gopaldas Khatri,
Aged about 72 years, Occ.
Business.
32.Mahesh s/o. Govardhandas Premani,
Aged about 37 years, Occ.
Business.
33.Gowardhandas s/o. Zamitrai Premani,
Aged about 66 years, Occ.
Business.
34.Hemandas s/o. Gopaldas Khatri,
Aged about 76 years, Occ.
Business.
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35.Tapan s/o. Mulchand Sangani,
Aged about 51 years, Occ.
Business.
36.Gagandas s/o. Pahalumai Paryani,
Aged about 82 years, Occ.
Business.
37.Vijay s/o.Amirchand Arora,
Aged about 36 years, Occ.
Business.
38.Kamalesh s/o. Virumal Balwani,
Aged about 34 years, Occ.
Business.
39.Nilesh s/o. Ashokkumar Ranka,
Aged about 37 years, Occ.Business.
40.Anis s/o. Swatantra Jain,
Aged about 42 years, Occ.
Business.
41.Hiralal s/o. Bherumal Vidhani,
Aged about 70 years, Occ.
Business.
42.Gajanan s/o. Mahadeorao Vaidyh,
Aged about 55 years, Occ.
Business.
43.Ravindra s/o. Yashwantrao Bangre,
Aged about 60 years, Occ.
Business.
44.Roshan s/o. Gyanchand Chawla,
Aged about 40 years, Occ.
Business.
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45.Suryaprakash s/o. Laddharam
Kewalramani, Aged about 53 years,
Occ.Business.
46.Ashok s/o. Vadhyamal Chawla,
Aged about 60 years, Occ.
Business.
47.Ghanshyam s/o. Lekhumal Balwani,
Aged about 65 years, Occ.
Business.
48.Ravindra s/o. Ramchand Khurana,
Aged about 61 years, Occ.
Business.
49.Sunil s/o. Rajendra Hatwar,
Aged about 57 years, Occ.
Business.
50.Maya w/o. Chandarlal Chelwani,
Aged about 50 years, Occ.
Business.
51.Rohit s/o. Dilipral Ambekar,
Aged about 28 years, Occ.
Business.
52.Bansilal s/o. Parilal Batra,
Aged about 68 years, Occ.
Business.
53.Purushottam s/o. Laxmanrao Saroday,
Aged about 82 years, Occ.
Business.
54.Khubchand s/o. Jesaram Bhaktani,
Aged about 76 years, Occ.
Business.
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55.Anilkumar s/o. Harishkumar Panjwani,
Aged about 47 years, Occ.
Business.
56.Rajendra s/o. Baharchand Sahgal,
Aged about 47 years, Occ.
Business.
57.Rajkumar s/o. Lalchand Menghani,
Aged about 50 years, Occ.
Business.
58.Vijay s/o. Pesumal Menghani,
Aged about 42 years, Occ.
Business.
59.Jethanand s/o. Allamchand Paryani,
Aged about 66 years, Occ.
Business.
60.Nanakram s/o Pahumal Balwani,
Aged about 75 years, Occ. Business.
61.Suyash Motilal Choithani,
Aged about 35 years, Occ. Business.
62.Jagdish s/o. Meghraj Jham,
Aged about 58 years, Occ.
Business.
63.Sunil s/o. Babulal Jain,
Aged about 53 years, Occ.
Business.
64.Nitesh s/o. Gopaldas Bhambhani,
Aged about 24 years, Occ.
Business.
65.Shankar s/o. Khiyaldas Chelwani,
Aged about 50 years, Occ.
Business.
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66.Suresh s/o. Ramchandra Khurana,
Aged about 55 years, Occ.
Business.
67.Holaram s/o. Milkimal Chelwani,
Aged about 71 years, Occ.
Business.
68.Anup s/o. Arunrao Alaspurkar,
Aged about 45 years, Occ.
Business.
69.Sunil s/o. Dayaram Chouthani,
Aged about 41 years, Occ.
Business.
70.Suchita w/o. Umeshrao Kurve,
Aged about 43 years, Occ.
Business.
71.Rajkumar s/o. Shamsundar Khurana,
Aged about 42 years, Occ.
Business.
72.Ajay Maganlal Dongaonkar,
Aged about 50 years, Occ.
Business.
Petitioner Nos. 1 to 72 are r/o.
Kelibag Road, Mahal, Nagpur.
73.Ramesh s/o. Bakhatmal Chawla,
Aged about Major, Occ.
Business.
74.Ramesh Chandra s/o. Goverdhandas
Shrimankar, Aged about Major, Occ.
Business.
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75.Vijay s/o. Shankarrao Khobragade,
Aged about Major, Occ.
Business.
76.Chandraprakash s/o. Lakhmichand
Jain, Aged about Major, Occ.
Business.
77.Vijay s/o. Shankarrao Khobragade,
Aged about Major, Occ.
Business.
78.Virsing s/o. Uttamsing Sengar,
Aged about Major, Occ.
Business.
79.Madhav s/o. Prabhakar Upasani,
Aged about Major, Occ.
Business.
80.Ramchand s/o. Govindrao Katle,
Aged about Major, Occ.
Business.
81.Dilip s/o. Uttamsing Sengar,
Aged about Major, Occ.Business.
82.Vasant Kumar s/o. Nathuram Vyas,
Aged about Major, Occ.
Business.
83.Maheshkumar s/o. Manoharlal Kukreja,
Aged about Major, Occ.
Business.
84.Amit Kumar s/o. Gunvantarai Sangani,
Aged about Major, Occ.
Business.
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85.Tharumal s/o. Suganomai Kewalramani,
Aged about Major, Occ.
Business.
86.Bharat s/o. Madhaorao Dharmik,
Aged about Major, Occ.
Business.
87.Arpan s/o. Rajkumar Jain,
Aged about Major, Occ.
Business.
88.Mohnish s/o. Ramkishan Shende,
Aged about Major, Occ.
Business.
89.Jagmohan s/o. Radha Kishan Sarda,
Aged about Major, Occ.
Business.
90.Yogendra s/o. Bansilal Pahawa,
Aged about Major, Occ.
Business.
91.Hemandas s/o. Gopaldas Khatri,
Aged about Major, Occ.
Business.
92.Dipesh s/o. Mahendra Kurani,
Aged about Major, Occ.
Business.
93.Sheikh Shafik s/o. Sheikh Yusuf,
Aged about Major, Occ. Business.
94.Manoj s/o. Atmaram Jejani,
Aged about Major, Occ.
Business.
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95.Anil s/o.Madhukarraoji Waje,
Aged about Major, Occ.
Business.
96.Manish s/o. Chandrakant Savadia,
Aged about Major, Occ.
Business.
97.Dayanand s/o. Bahadurchand Batra,
Aged about Major, Occ.
Business.
98.Vaishali w/o. Vilas Harde,
Aged about Major, Occ.
Business.
99.Sanjay s/o. Gyanchand Pungalia,
Aged about Major, Occ.
Business.
100.Mahendra s/o. Champalal Agrawal,
Aged about Major, Occ.
Business.
101.Vinod s/o. Jagdishlal Batra,
Aged about Major, Occ.
Business.
102.Omprakash s/o. Radheshyam Jopat,
Aged about Major, Occ.
Business.
103.Mohd. Jakaria s/o. Mohd. Hanif,
Aged about Major, Occ.
Business.
Petitioner Nos. 73 to 103 are r/o.
New Itwara Road, Nagpur. .......... PETITIONERS
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// VERSUS //
1. The State of Maharashtra,
through the Secretary, Urban
Development Department,
Mantralaya, Mumbai-440032.
2. The City of Nagpur Municipal
Corporation, through Municipal
Commissioner, Civil Lines,
Nagpur-440001. .......... RESPONDENTS
____________________________________________________________
Mr.M.G.Bhangde, Adv. for the Petitioners.
Mr.Rohit Deo, Acting Advocate General with Mrs.Bharti Dangre, G.P.
for respondent no.1.
Mr.C.S.Kaptan, Sr. Cl. with Mr.J.B.Kasat, Adv. for respondent no.2.
____________________________________________________________
**********
2) WRIT PETITION NO.1448 OF 2016 :
1. Narendra Jagannath Trivedi,
Aged about 65 years, r/o.
House No.151, Kelibagh
Road, Mahal, Nagpur.
2. Madhukar Fagoji Mohadikar,
Aged about 73 years, r/o. House
No.17, Kelibagh Road, Mahal,
Nagpur.
3. Manohar Tulsiram Patil,
Aged about 73 years, r/o. Kelibagh
Road, Mahal, Nagpur.
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4. Moreshwar Vinayak Ramtekkar,
Aged about 38 years, r/o. House
No.11, Kelibag Road, Mahal,
Nagpur.
5. Lekhraj Vinayak Ramtekkar,
Aged about 35 years, r/o. House
No.11, Kelibag Road, Mahal,
Nagpur.
6. Dilip Vinayak Ramtekkar,
Aged about 33 years, r/o. House
No.11, Kelibag Road, Mahal,
Nagpur.
7. Tryambak Vinayak Ramtekkar,
Aged about 30 years, r/o. House
No.11, Kelibag Road, Mahal,
Nagpur.
8. Shridhar Pandurang Shirpurkar,
Aged about 83 years, r/o. House
No.10, Kelibag Road, Mahal,
Nagpur.
9. Sanjay Manohar Shirpurkar,
Aged about 55 years, r/o. House
No.10, Kelibag Road, Mahal,
Nagpur.
10.Hemant Manohar Shirpurkar,
Aged about 55 years, r/o. House
No.10, Kelibag Road, Mahal,
Nagpur.
11.Vasant Manohar Shirpukar,
Aged about 52 years, r/o. House
No.10, Kelibag Road, Mahal,
Nagpur.
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12.Vasundhara Pandhari Falnikar,
Aged about 75 years, r/o. House
No.141, Kelibag Road, Mahal,
Nagpur.
13.Moreshwar Pandhari Falnikar,
Aged about 52 years, r/o. House
No.141, Kelibag Road, Mahal,
Nagpur.
14.Sau. Shikha Arun Chikhaldekar,
Aged about 60 years, r/o. Near
Jamdar House, Waikar Road,
Mahal, Nagpur.
15.Shrikant Naryan Joshi,
Aged about 63 years, r/o.Plot
No.86, Gayatri Mansion, DGNS
5th Layout, Jayprakash Nagar,
Nagpur.
16.Manohar Dhundiraj Joshi,
Aged about 73 years, r/o. Plot No.
168, Vivekanant Nagar, Wardha
Road, Nagpur.
17.Pushpa Vasantrao Shirpurkar,
Aged about 70 years, r/o. House
No.190, Kelibag Road, Mahal,
Nagpur.
18.Krushnanand Vasantrao Shirpurkar,
Aged about 40 years, r/o. House
No.190, Kelibag Road, Mahal,
Nagpur.
19.Gajendra Purshottamdas Gupta,
Aged about 50 years, r/o. House
No.149, Kelibag Road, Mahal,
Nagpur.
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20.Lalit Bhagdikar,
Aged about 75 years, r/o. House
No.652, Tulshibagh Road, Mahal,
Nagpur.
21.Shaikh Mustafa,
Aged about 70 years, r/o. House
No.27, Tulshibagh Road, Mahal,
Nagpur.
22.Gopaldas Badridas Mohta,
Aged about 58 years, r/o. House
No.650, Tulshibagh Road, Mahal,
Nagpur.
23.Parwesh Dilipkumar Gupta,
Aged about 22 years, r/o. House
No.19/A, Tulshibagh Road, Mahal,
Nagpur.
24.Pramod Krishnarao Dixit,
Aged about 65 years, r/o. House
No.28, Tulshibagh Road, Mahal,
Nagpur. .......... PETITIONERS
// VERSUS //
1. State of Maharashtra,
through the Secretary, Urban
Development Department,
Mantralaya, Mumbai-440032.
2. The Corporation of the City of Nagpur,
through Municipal Commissioner,
Civil Lines, Nagpur. .......... RESPONDENTS
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____________________________________________________________
Mr.Anand Parchure, Adv. for the Petitioners.
Mr.Rohit Deo, Acting Advocate General with Mrs.Bharti Dangre, G.P.
for respondent no.1.
Mr.C.S.Kaptan, Sr. Cl. with Mr.J.B.Kasat, Adv. for respondent no.2.
____________________________________________________________
**********
3) WRIT PETITION NO.1395 OF 2016 :
1. Shriram Trimbak Joshi,
Aged about 81 years, Occ.
Retired, House No.194,
Badkas Chowk, Nagpur.
2. Sudhakar Pundalikrao Zade,
Aged about 47 years,
Occ.Business, r/o. Tulsibagh
Road, Mahal, Nagpur.
3. Mohan Bhagdikar,
Aged about 39 years, Occ.Business,
Tulsibagh Road, Mahal, Nagpur.
4. Siraj Ahamed,
Aged about 37 years, Occ.Business
(Eros Tailors).
5. Vivek Kidile,
Aged about 46 years, Occ.Business,
(Sai Enterprises).
6. Rambhau Marotrao Yawale,
Aged about 55 years, Occ.Business,
(Sital Tailors).
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7. Kum.Shalini Rambhau Madewar,
Aged about 40 years, Occ.Business
(Madewar Tailors).
8. Ajit Jain,
Aged about 55 years, Occ.
Business (Jain Pan Mandir).
9. Vinayak Gulabrao Nirashe,
Aged about 55 years, Occ.
Business (Bhagyashri Tailors).
10.Manohar Lonare,
Aged about 58 years, Occ.
Business (Manohar Dry
Cleaners).
11.A. Zade,
Aged about 55 years, Occ.
Business (Modern Art Tailors).
12.Seshrao Wankar,
Aged about 58 years, Occ.
Business (Sarika Tailors).
13.Gulabrao Raut,
Aged about 61 years, Occ.
Business (Pushpa Tailors).
14.Gulabrao Khedikar,
Aged about 60 years, Occ.
Business (Radhika Tailors).
15.Datta K. Khade,
Aged about 54 years, Occ.
Business (Shri Gurunath
Medical Stores)
16.Lalchandra Tejumal Balwani,
Aged about 42 years, Occ.Business.
(Sapna Tailors).
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17.Manohar Narayandas Balwani,
Aged about 48 years, Occ.Business,
(Ashok General Stores).
18.Nisar Khan Anwarulla Khan,
Aged about 40 years, Occ.
Business, House No.24.
19.Madhukar Namdeorao Warghane,
Aged about 58 years, Occ.
Business (Warghane Tailors).
20.Vinit Ramchandra Agrawal,
Aged Major, Occ. Business
(Bombay Medicos).
21.Mahesh Nanore,
Aged Major, Occ. Business,
House No.30.
Petitioner Nos. 4 to 21 are
r/o. Tulsibaugh Road, Mahal,
Nagpur.
22.Harish Rochiram Balwani,
Aged about 35 years, Occ.Business
(Harish Emporium), r/o. Mahal,
Sutika Gruha Chowk, Mahal, Nagpur.
23.Smt.Sandhya Gajanan Gokhale,
Aged 64 years, Occ. Business
(Gokhale Kirana Stores), r/o.
Mahal Chowk, Opp. NMC Building,
Mahal, Nagpur.
24.Suresh Wartak,
Aged about 55 years, Occ.Business,
Gokhale Kirana Stores, Mahal
Chowk, Opp. NMC Building,
Mahal, Nagpur. .......... PETITIONERS
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// VERSUS //
1. State of Maharashtra,
through Secretary, Urban
Development Department,
Mantralaya, Fort, Mumbai-440032.
2. Secretary,
Ministry of Urban Development
Department, State of Maharashtra
Mantralaya, Fort, Mumbai-400032.
3. Director,
Town Planning, Commissionerate
Building, Sadhu Waswani Square,
Maharashtra State, Pune.
4. Assistant Director,
Town Planning,
Administrative Building,
Civil Lines, Nagpur.
5. Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur. .......... RESPONDENTS
____________________________________________________________
Mr.R.R.Deshpande, Adv. for the Petitioners.
Mr.Rohit Deo, Acting Advocate General with Mrs.Bharti Dangre, G.P.
for respondent nos.1 to 4.
Mr.C.S.Kaptan, Sr. Cl. with Mr.J.B.Kasat, Adv. for respondent no.5.
____________________________________________________________
**********
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4) WRIT PETITION NO.5056 OF 2016 :
1. Ataur Rehman Khan s/o. Zulfiquar
Khan, Aged 58 years, Occ.
Retired Teacher, r/o. Behind
Masjid Tahasildar, Bhutiya
Darwaja, Dasra Road, Mahal,
Nagpur-440032.
2. Abdul Quadar Khan s/o. Abdul Rahim
Khan, Aged 50 years, Occ. Retired,
r/o. Plot No.43, Corporation Colony,
North Ambazari Road, Nagpur.
3. Mohd. Mujtaba Ahsan s/o. Zainul
Abdeen, Aged 47 years,
Occ.Civil Engineer, r/o. Nalsaheb
Road, Sk. Bari Chowk, Mominpura,
Nagpur-440018.
4. Mohd. Hifzur Rehman s/o. M. Usman,
Aged 68 years, Occ.Weaver, r/o.
Haidry Road, Mominpura,
Nagpur-440018.
5. Haji Mohd. Ayyub s/o. Haji Sher Mohd.
Aged 53 years, Occ.Business
r/o. Saify Nagar, Nagpur-18.
6. Adv. Khaleeque Anzar s/o. Jalil Saaz,
Aged about 43 years, Occ.Legal
Practitioner, r/o. Afsar Villa,
Kasabpura, Nagpur-440018.
7. Alamgir Ansari s/o. Gulam Rasool,
Ansari, about 53 years, Occ.Weaver,
r/o. Kamgar Nagar, Nagpur-26.
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8. Mohd. Zahid s/o. Qamruzama Ansari,
Aged about 45 years, Occ.Business
r/o. Bunkar Colony, Taka,
Nagpur-440017.
9. Aqeel Afsar s/o. Abdul Hameed Afsar,
Aged 37 years, Occ. Service,
r/o. Kamgarnagar, Nari,
Nagpur-26. .......... PETITIONERS
// VERSUS //
1. The State of Maharashtra,
through Principal Secretary, Urban
Development Department,
Government of Maharashtra,
Mantralaya, Mumbai-440 032.
2. Director of Town Planning,
Maharashtra State,
Central Buildings,
Pune-411 001.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. Executive Engineer,
Public Works Department,
Nagpur Municipal Corporation,
Nagpur.
5. Assistant Director of Town
Planning, Nagpur Municipal
Corporation, Nagpur.
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6. Nagpur Heritage Conservation
Committee, through the Member
Secretary, Nagpur, c/o. Nagpur
Municipal Corporation, Civil
Lines, Nagpur-440 001.
7. Maharashtra Rajya Waqf Board,
Panchakki, Aurangabad.
8. Archaelogical Survey of India,
Through its Director (Epigraphy)
Arabic and Persian Inscriptions,
Epigraphy Branch,
Old High Court Building,
Civil Lines, Nagpur -440 001.
Through the Director (Epigraphy)..... RESPONDENTS
____________________________________________________________
Mr.M.V.Samarth, Adv. for the Petitioners.
Mr.Rohit Deo, Acting Advocate General with Mrs.Bharti Dangre, G.P.
for respondent nos.1 and 2.
Mr.C.S.Kaptan, Sr. Cl. with Mr.J.B.Kasat, Adv. for respondent nos.3
to 6.
Mr.S.A.Chaudhari, Adv. for respondent no.8.
____________________________________________________________
*************
Date of reserving the Judgment : 1.10.2016.
Date of pronouncement of Judgment : 18.10.2016.
*************
CORAM : B.R. GAVAI
AND
V. M. DESHPANDE, JJ.
::: Uploaded on - 18/10/2016 ::: Downloaded on - 20/10/2016 00:47:56 :::
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JUDGMENT (Per B.R. GAVAI, J) :
1. All these four petitions challenge the notification issued
by the State of Maharashtra/respondent no.1 herein dated 12th
November, 2014 under the provisions of sub-section 2 of Section 37
of the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as "the said Act") thereby sanctioning
modifications with certain conditions in the Development Plan for
the City of Nagpur and for that purpose, amending notification dated
4th November, 2008.
2. The facts and the grounds raised in all these petitions are
almost identical with one additional factual challenge insofar as Writ
Petition No.5056 of 2016 is concerned. As such, all these four
petitions are heard together and decided by this common Judgment
and Order.
3. The facts, in brief, giving rise to the present petitions are
as under :
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In the year 2000-2001, the Planning Authority for the
City of Nagpur had proposed to increase width of one road known as
"Kelibag Road" from 15 meters to 24 meters. In the Development
Plan, which was notified by the State Government on 7th January,
2000, the width of road was retained at 15 meters. However, in the
Development Plan, the words "24 meters" were not scored out. Some
of the present petitioners and others, therefore, approached this
Court by filing Writ Petition Nos. 6255 of 2005, 5931 of 2005 and
6467 of 2005. The said petitions were decided by this Court vide
Common Judgment and Order dt.17.1.2007. In the said petitions, a
statement made on behalf of respondent no.1 that, in the
Development Plan, the width of road was shown as '24 meters' came
to be recorded in the said Judgment. As such, the petitioners and
other aggrieved persons filed Misc. Civil Application Nos. 203 of
2007, 451 of 2007 and 1344 of 2007. This Court vide order dated
16th November, 2005 allowed the Misc. Civil Applications and
reviewed the order dated 17th January, 2007 recording therein that,
as per the Development Plan, the width of said road was 15 meters
and not 24 meters.
25 wp1501.16.odt
4. It appears that the General Body of respondent
no.2/Nagpur Municipal Corporation in its meeting dt.29.3.2008 vide
resolution dt.179 resolved that the width of said road should be
increased to 24 meters from 15 meters and for that, further resolved
to take action for minor modification of Development Plan as
provided under Section 37 of the said Act. Accordingly, a notice was
published by respondent no.2 in the local Newspapers on 2nd
November, 2008 inviting objections to the proposed minor
modification of the Development Plan. The petitioners and other
citizens raised their objection to the proposal for effecting minor
modification of Development Plan. After hearing the objections, a
report was submitted by the Municipal Commissioner on 17.2.2010
to the State Government. It appears that there were certain internal
communications between the different organs of the State
Government. After considering the material placed on record, the
impugned notification came to be issued on 12th November, 2014. It
appears that, thereafter the petitioners made certain representations
to the Authorities. However, since the petitioners could not get
redressal of their grievance before the respondents/Authorities, the
petitioners have approached this Court by way of present petitions.
26 wp1501.16.odt
5. This Court vide Order dt.1.3.2016 observing that it was
prima facie of the view, that the Subordinate Officers of the State
Government have overlooked the endorsement made by the Hon'ble
Chief Minister and put up a contrary note to the one put up by the
Hon'ble Chief Minister, while issuing notice, directed the parties to
maintain status-quo. After pleadings were complete, learned Counsel
for the parties requested this Court for deciding the petitions finally
at this stage. Accordingly, we have heard the learned Counsel for the
parties extensively on 30th September, 2016 and 1st October, 2016.
6. The arguments on behalf of the petitioners were led by
Mr.M.G,Bhangde, learned Senior Counsel appearing in Writ Petition
Nos. 1501 of 2016. Mr.M.G.Bhangde, Learned Senior Counsel mainly
raised the following grounds in support of the petitions :
a) That, when the Hon'ble Chief Minister had directed a
report to be called from the Nagpur Municipal Corporation as to
whether it was possible to increase width of the said road to 24
meters without disturbing the heritage structures namely Murlidhar
temple, Kelibag temple and Gujar gateway, the subordinate
authorities, without considering the note of the Hon'ble Chief
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Minister, with the change in the Government, have put up a totally
contrary note, which has been subsequently approved by the Hon'ble
Chief Minister. Learned Senior Counsel in this respect relies on the
Judgment of Apex Court in the case of State of Tamil Nadu and
another .vs. P. Krishnamurthy and Others reported in 2006 (4)
SSC 517.
b) The resolution passed by the Corporation in the meeting
dt.29.3.2008 is passed without the subject being on agenda. It is
submitted that, in view of sub-section 4 of Section 25 of the City of
Nagpur Corporation Act, 1948, the said resolution could not have
been passed. The learned Senior Counsel in this respect relied on the
Judgment of the Division Bench of this Court in the case of Smt.
Seema Salve .vs. The State of Maharashtra and Others reported in
2013 (1) ALL MR 26.
c) That the objections were heard by the Additional Deputy
Municipal Commissioner and the Assistant Director of Town
Planning, whereas the report was submitted by the Commissioner
and no minutes of said hearing were recorded. It is, therefore,
submitted that the same is not permissible in view of the Judgment
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of Division Bench of this Court in the case of Nandkishore s/o.
Mohanlal Lahoti .vs. State of Maharashtra and Others reported in
2006 (6) Mh.L.J. 552. The Learned Senior Counsel further submits
that though the hearing was given, no reasons are recorded as to
why the contentions, as raised by the petitioners, were not found to
be acceptable. In this respect, reliance is placed on the Judgment of
the Apex Court in the case of Union of India and Others .vs. Shiv
Raj and Others reported in (2014) 6 SCC 564.
d) That the report of hearing ought to have been first
placed before the General Body before forwarding the same to the
State Government.
e) That the Authorities have failed to take into
consideration that there was no material in support of the report of
Corporation and that the Corporation has failed to evaluate the facts.
Reliance in this respect is placed on the Judgments of the Apex Court
in the cases of Bhikhubhai Vithlabhai Patel and others .vs. State of
Gujarat and another reported in (2008) 4 SCC 144U and State of
Uttar Pradesh and another .vs. Johri Mal reported in (2004) 4 SCC
714.
29 wp1501.16.odt
f) That there has been no effective consultation with the
Director of Town Planning as required under sub-section 2 of Section
37 of the said Act. The report of Director ought to have been taken
into consideration by the State Government which has not been
taken into consideration. That the letter of Commissioner of Nagpur
Municipal Corporation sent in response of query of Government
ought to have been placed before the Director for soliciting his views
thereon. It is submitted that failure to do so makes consultation
empty formality, which is not permissible under the Scheme of the
said Act.
(g) Lastly, it is submitted that the Authorities ought to have
taken into consideration, that between the proposal to have width of
the said road to 15 meters and 24 meters, the proposal to have width
of 15 meters causes lesser hardship to the citizens and as such, while
exercising discretion, the proposal which causes lesser hardship to
the citizens ought to have been accepted. Reliance in this respect is
placed on the Judgment of the Apex Court in the case of Indian
Railway Construction Co. Ltd. vs. Ajay Kumar reported in (2003) 4
SCC 579.
30 wp1501.16.odt
7. Mr.R.R.Deshpande, learned Counsel for the petitioners in
Writ Petition No. 1395 of 2016 has adopted the submissions
advanced by Mr.M.G.Bhangde, learned Senior Counsel.
Mr.Deshpande, learned Counsel has placed before the Court the
comparative maps to show that if width of the road is maintained at
15 meters, it will cause lesser injury than if the width is maintained
at 24 meters.
8.
Mr.M.V.Samarth, learned Counsel appearing on behalf of
the petitioners in Writ Petition No.5056 of 2016 submitted that, if
the road is widened to 24 meters, it will adversely affect Alifuddin
Masjid and Gujar gateway which are built in the year 1972 and
which are notified as 'heritage structures'. It is submitted that, in
view of the regulations notified by State Government called
'Regulations for Conservation of buildings, artefacts, structures, areas
and precincts of historic and/or aesthetic and/or cultural significance
(heritage buildings and heritage precincts) and/or natural features of
environmental significance for the city of Nagpur.' (hereinafter referred
to as "the heritage regulations"), the development which will
adversely affect the said heritage structure would not be permissible.
31 wp1501.16.odt
9. Mr.M.V.Samarth, learned Counsel relying on various
documents placed on record submits that the mosque has historic
relevance as could be found in various books with regard to history
of Nagpur and as such, the development adversely affecting the
structure having historical significance could not be permitted.
10. Mr.Rohit Deo, learned Acting Advocate General
appearing on behalf of the State Government made the following
submissions :
I) That the notings recorded in the Official files by the
Officers of the Government at different levels and even the Ministers
do not become decisions of the Government unless the same is
sanctified and acted upon by issuing an order in the name of the
President or Governor, as the case may be, authenticated in the
manner as provided in Articles 77(2) and 166(2) and is
communicated to the affected person, the learned Acting Advocate
General relied on the Judgments of the Apex Court in the cases of
Shanti Sports Club .vs. Union of India reported in 2009 (15) SCC
705 and State of Uttaranchal .vs. Sunil Kumar Vaish reported in
2011 (8) SCC 670.
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II) Insofar as the contention regarding hearing by the
Subordinate Officer and the report by the Commissioner is
concerned, the learned Acting Advocate General submits that the
issue is put to rest by the Judgment of the Division Bench of this
Court in the case of Mihir Yadunath Thatte .vs. State of
Maharashtra reported in 2007 (1) ALL MR 537.
III) Learned Acting Advocate General submits that the
powers exercised by the State Government under Section 37(2) of
the said Act are legislative in nature and therefore, the present case
will have to be examined on the touchstone of parameters that are
available to this Court, while exercising powers of judicial review of
legislative functions of a delegatee of the legislature. It is submitted
that, if the case is examined on those parameters, it would be seen
that the challenge as raised in the petitions is without substance.
11. Mr.C.S.Kaptan, learned Senior Counsel for the
respondent/Corporation, in addition to supporting the arguments
advanced by the Acting Advocate General, submits that the
provisions of consultation, as contemplated under sub-section 2 of
Section 37 of the said Act cannot be stretched to such an extent that
33 wp1501.16.odt
the opinion, as expressed by the Consultee, is binding on the
Consultor. He submits that the limited inquiry that would be
permissible to this Court, is to examine whether the opinion of the
Consultee has been taken into consideration by the Consultor or not.
The learned Senior Counsel relies in this respect on the Judgment of
the Apex Court in the case of Indian Administrative Service
(S.C.S.) Association, U.P. and Others .vs. Union of India and
Others reported in 1993 Supp (1) SC 730.
12. Insofar as Writ Petition No.5056 of 2016 is concerned,
Mr.C.S.Kaptan, learned Senior Counsel submits that, perusal of the
heritage regulations would reveal that what is protected monument
is 'the gate' and 'the tomb'. The learned Senior Counsel further
submits that the report of Heritage Committee would further reveal
that the Heritage Committee itself, after considering the entire
material, in its meeting dt.8.4.2011, has accorded it's approval to the
Nagpur Municipal Council for widening of Kelibagh road to 24
meters subject to the condition that Grade I structure of Murlidhar
temple, Kelibag temple and Gujar gateway shall be retained. Learned
Senior Counsel further submits that the structure which will be
affected by widening is not the heritage structure which is
34 wp1501.16.odt
constructed in the ancient times. But, at the most, the shops and the
buildings which were reconstructed in the year 1982 and that too,
not as per the original design, will be affected. The learned Senior
Counsel for the Corporation makes a categorical statement that the
grave and Gujar gateway would not be affected by expansion.
13. Mr.M.G.Bhangde, learned Senior Counsel, in reply,
submits, that the Authorities have failed to take into consideration
various things which are required to be taken into consideration like
consultation with the public, consultation with the Director, Town
Planning and as such, the impugned notification will not be
sustainable in law.
14. Learned Senior Counsel submits that though various
objections have been taken by the petitioners and others as to why
the said road should not be widened to 24 meters, reasons are not
recorded as to why the grounds raised by the petitioners are not
acceptable and as such, in view of the Judgment of Apex Court in the
case of Cellular Operators Association of India and Others .vs.
Telecom Regulatory Authority of India and Others reported in
(2016) 7 SCC 703, the impugned notification would not be
35 wp1501.16.odt
sustainable in law. The learned Senior Counsel further submits that
the Judgment of the Division Bench of this Court in the case of Mihir
Yadunath Thatte (cited supra) would be distinguishable on the
following grounds.
That, in the said case, a direction was issued by the State
Government; whereas in the present case, the Corporation has suo-
motu initiated the proposal. And that, in the said case, a resolution
was already passed authorising the Commissioner to do everything.
However, in the present case, the report of hearing was required to
be placed before the General Body, which has not been done.
15. With the assistance of the learned Counsel for the
parties, we have scrutinized the entire material on record and also
gone through various authorities cited at the bar.
16. For appreciating the rival submissions, it will be
necessary to consider the provisions of sub-sections (1) and (2) of
Section 37 of the said Act, which read thus :
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37. [Modification] of final Development plan.-
(1) Where a modification of any part of or any
proposal made in a final Development plan is of such a
nature that it will not change the character of such
Development plan, the Planning Authority may, or
when so directed by the State Government [shall,
within ninety days from the date of such direction,
publish a notice] in the Official Gazette 3[and in such
other manner as may be determined by it] inviting
objections and suggestions from any person with
respect to the proposed modification not later than one
month from the date of such notice; and shall also
serve notice on all persons affected by the proposed
modification and after giving a hearing to any such
persons, submit the proposed modification (with
amendments, if any), to the State Government for
sanction.
[(1A) ...........
(1AA) ..........
(b) ..........
(c) ..........
37 wp1501.16.odt
(2) The State Government may, [make such enquiry as
it may consider necessary] and after consulting the
Director of Town Planning by notification in the
Official Gazette, sanction the modification with or
without such changes, and subject to such conditions as
it may deem fit, or refuse to accord sanction. If a
modification is sanctioned, the final Development plans
shall be deemed to have been modified accordingly."
17.
We will first deal with the contention of
Mr.M.G.Bhangde, learned Senior Counsel, with regard to the noting
of the Hon'ble Chief Minister on the file and the contrary proposal
being put before the Hon'ble Chief Minister by the Sub-ordinate
Officers. In this respect, it will be appropriate to refer to the
Judgment of Their Lordships of Apex Court in the case of Shanti
Sports Club and another (cited supra). Their Lordships of the Apex
Court in the case of Shanti Sports Club and another, after
considering its earlier Judgments in the cases of State of Punjab vs.
Sodhi Sukhdev Singh reported in AIR 1961 SC 493; Bachhittar Singh
.vs. State of Punjab reported in AIR 1963 SC 395; State of Bihar vs.
Kripalu Shankar reported in (1987) 3 SCC 34; Rajasthan Housing
Board .vs. Shri Kishan reported in (1993) 2 SCC 84; Sethi Auto
38 wp1501.16.odt
Service Station .vs. DDA reported in (2009) 1 SCC 180 and the
Judgment of the Full Bench of Delhi High Court in the case of
Roshanara Begum .vs. Union of India reported in AIR 1996 Del 206,
have held as under :
" As a result of the above discussion, we hold that the
notings recorded in the official files by the officers of the
Government at different levels and even the Ministers do
not become decisions of the Government unless the same
is sanctified and acted upon by issuing an order in the
name of the President or Governor, as the case may be,
authenticated in the manner provided in Articles 77(2)
and 166 (2) and is communicated to the affected
persons. The notings and/or decisions recorded in the
file do not confer any rights or adversely affect the right
of any person and the same can neither be challenged in
a court nor made basis for seeking relief. Even if the
competent authority records a noting in the file, which
indicates that some decision has been taken by the
authority concerned, the same can always be reviewed
by the same authority or reversed or overturned or
overruled by higher functionary/ authority in the
Government." (emphasis supplied).
18. It could thus clearly be seen that Their Lordships have in
unequivocal terms held that the notings recorded in the Official files
by the Officers of the Government at different levels and even the
Ministers do not become decisions of the Government unless the
same is sanctified and acted upon by issuing an order in the name of
President or Governor, as the case may be, authenticated in the
39 wp1501.16.odt
manner provided in Articles 77(2) and 166(2) and is communicated
to the affected persons. It has further been held by Their Lordships
that such notings can neither be challenged in a court nor made a
basis for seeking relief. It has further been held that even if the
Competent Authority records a noting in the file, which indicates that
some decision has been taken by the Authority concerned, the same
can always be reviewed by the same Authority or reversed or
overturned or overruled by higher functionary/Authority in the
Government.
19. Learned Senior Counsel for the petitioners heavily relied
on the following observations of Their Lordships in the case of State
of T.N. And another .vs. P. Krishnamurthy and Others reported in
(2006) 4 SCC 517.
35.Thus, it is clear from the above, that unless it is
found that act done by the authority earlier in existence
is either contrary to statutory provisions, is
unreasonable, or is against public interest, the State
should not challenge its stand merely because the other
political party has come into power. Political agenda of
an individual or a political party should not be
subversive of the rule of law. "
40 wp1501.16.odt
20. To a pertinent query as to whether the petitioners were
resting their case on the grounds of mala fides, learned Senior
Counsel fairly conceded that the petitioners have not pressed into
service any such allegations. It was, however, submitted that, only on
account of change in the Office of Chief Minister, earlier note by the
Hon'ble Chief Minister, should not be thrown to wind.
21. We are aware about the limitation of this Court while
examining correctness or otherwise of exercise of legislative
functions of the delegatee. We are equally aware that we cannot sit
in an appeal over the legislative functions of the delegatee. However,
in order to test correctness of submissions made by the learned
Counsel for the petitioners and only with a view to find out as to
whether any arbitrariness or unreasonableness has crept in, in the
decision making process of the State, we have perused the notings in
the file, a copy of which has been placed on record by the petitioners
themselves.
It appears that the Hon'ble Chief Minister somewhere
between 12.8.2014 to 1.10.2014 has put up an endorsement on the
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file, which can be seen at page no.107 of Writ Petition No.1501 of
2016. True translation of the same reads thus :
"CMC 5246/2014, UDD
Subject :- Revised Development Plan-Nagpur.
Widening of road up to 24 Mtr. from Central
Avenue Road to Badkas Chowk to Kotwali Police Station
Chowk up to C. P. & Berar College.
In the present case, Nagpur Heritage Conservation
Committee has prescribed the condition of keeping
unaffected the ancient buildings i.e. 'Murlidhar Mandir',
'Kelibag Mandir' and 'Gujar Gate'. Hence, re-submit the
proposal with the remarks of the Commissioner, Nagpur
Municipal Corporation as to whether it is feasible to
widen the road up to 24 Mtr. at a stretch by keeping the
said buildings unaffected.
Chief Minister
Principal Secretary (Urban Development-1)"
42 wp1501.16.odt
It could be seen from the said noting that the Hon'ble
Chief Minister had directed to get the report from the Municipal
Commissioner, Nagpur Municipal Corporation as to whether it is
possible to maintain width of the road to 24 meters without
disturbing heritage structure of Murlidhar temple, Kelibagh temple
and Gujar gateway. It appears that the Officers in the Urban
Development Department, noticing that such an information was
already sought from the Commissioner, Nagpur Municipal
Corporation at earlier point of time and that the Commissioner had
given his opinion, that it was possible to maintain width of the road
with slight modification at Murlidhar temple and Kelibag temple and
that, after receipt of the report dt.3.10.2013, the file was processed
further, resubmitted the file with the fresh noting. A true translated
version reads thus :
"The proposal under Section 37 of the Maharashtra
Regional and Town Planning Act, 1966 to widen the
road up to 24 Mtr. from Central Avenue Road to
Badkas Chowk to Kotwali Police Station Chowk up to
C. P. & Berar College in Nagpur city, is under
consideration on the present file. The present case was
submitted at Page No. 11-13/TV. In the said case,
Nagpur Heritage Conservation Committee has
43 wp1501.16.odt
prescribed the condition of keeping unaffected the
ancient buildings i.e. 'Murlidhar Mandir', 'Kelibag
Mandir' and 'Gujar Gate'. Hence, the then Hon'ble Chief
Minister has issued directions to re-submit the proposal
along with the remarks of the Commissioner, Nagpur
Municipal Corporation as to whether it is feasible to
widen the road up to 24 Mtr. by keeping the said
buildings unaffected.
02. In the present case, it is submitted that the
Department has submitted the present case at Page No.
11-13/TV. Accordingly, as made clear in the letter,
dated 3rd October, 2013 by the Commissioner, Nagpur
Municipal Corporation, the aforesaid road should be
widened up to 24-00 Mtr. The Heritage Conservation
Committee in its meeting, dated 8th April, 2011 has
also expressed its consent to widen the said road up to
24-00 Mtr. and laid down the condition of keeping
unaffected the ancient buildings i.e. 'Murlidhar
Mandir', 'Kelibag Mandir' and 'Gujar Gate'. It will be
compulsory to take in to consideration the said
condition while developing the aforesaid road by
widening it up to 24-00 Mtr. Similarly, as mentioned
by the Commissioner, Nagpur Municipal Corporation,
it is possible to widen the said road up to 24 Mtr. from
both the sides without causing any damage to the
heritage buildings, but by making minor changes in the
44 wp1501.16.odt
road between 'Murlidhar Mandir' and 'Kelibag Mandir'.
Similarly, as per the plan of the road mentioned in the
letter, dated- 3rd October, 2013 by the Commissioner,
Nagpur Municipal Corporation, it is hereby proposed to
grant approval under Section 37 (2) of the
Maharashtra Regional and Town Planning Act, 1966
for widening the road up to 24-00 Mtr. from Central
Avenue Road to Badkas Chowk to Kotwali Police
Station Chowk up to C. P. & Berar College in Nagpur
city, subject to the decision in Misc. Civil Application
No. 203/2007 and 451/2007.
Section Officer
Joint Secretary (Town Planning)
Principal Secretary-1 (UD)
The Hon'ble Chief Minister 'A' approved."
22. The said proposal was approved at various stages by the
Joint Secretary, the Principal Secretary and finally by the Hon'ble
Chief Minister. It could thus be seen that the information which was
sought as per noting of the Hon'ble Chief Minister from the
Commissioner, was very much available on record and as such, the
file which was subsequently re-submitted with a fresh noting brought
45 wp1501.16.odt
this factual position to the notice of the authorities including the
Hon'ble Chief Minister. In that view of the matter, we do not find
that there would be any substance in the arguments advanced by the
learned Counsel for the petitioners, in that regard.
23. The next ground is that the resolution of Corporation
dt.29.3.2008 is passed when the said subject was not on the agenda.
In this respect, a reliance is sought to be placed on the Judgment of
Division Bench of this Court in the case of Smt. Seema Salve (cited
supra). In the said case, though in the agenda of meeting, the subject
to be considered was regarding alignment of 18 meters road passing
through Survey Nos. 344, 345 and 346 and shifting of garden,
cultural centre and library in the concerned DP Plan, the General
Body in the meeting passed a resolution not limited to that topic, but
transcended beyond that subject including the policy matters
regarding further modification of the D.C. Rules (No.2.5) under
Section 37(1) and for reduction of premium to be charged for
development proposals for use of TDR under BRTS Corridor. It could
thus be seen that, in the said case, resolution which was passed by
General Body was with regard to the subject which was totally
foreign to the subject on agenda. However, perusal of the resolution
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passed in the present case would reveal that the same was pertaining
to the proposal of administration, with regard to keeping width of
road to 15 meters instead of 24 meters. However, the General Body
passed the resolution resolving to maintain width of the road to 24
meters. It could thus be seen that the resolution passed by the
General Body was with respect to the same road. It is not as if that
the subject on the agenda was with regard to 'A' road; whereas the
resolution passed was with regard to 'B' road. A General Body has
passed resolution with regard to the same road albeit not approving
the width of 15 meters as suggested by administration, but
reiterating to have the width of 24 meters.
24. It will be appropriate to refer to sub-section 4 of Section
25 of the City of Nagpur Corporation Act, 1948, which reads thus :
"25. Convening of meetings.
(1) A meeting of the Corporation shall be either
ordinary or special.
(2) The date of every meeting, except the meeting
referred to in section 24, shall be fixed by the Mayor,
or in the event of his being incapable of acting then
by the Deputy Mayor, and in the like event in his case
then by the Commissioner.
47 wp1501.16.odt
(3) Notice of every meeting specifying the time and
place thereof and the business to be transacted
thereat shall be despatched to every Councillor and
exhibited at the municipal office seven clear days
before an ordinary meeting and three clear days
before a special meeting :
Provided that if the notice is exhibited at the
municipal office, failure to serve it on any Councillor
shall not affect the validity of a meeting.
(4) No business other than that specified in the notice
relating thereto shall be transacted at a meeting.
It could clearly be seen that the provisions of sub-section
4 of Section 25 of the City of Nagpur Corporation Act, 1948 requires
that no business other than specified in the notice relating thereto
shall be transacted automatically. A perusal of the agenda so also the
minutes of the meeting which are reproduced hereinbelow would
clearly show that the agenda of the meeting was with regard to
Kelibag road and the topic discussed is also with regard to the same
road. Merely because the proposal of administration was for
increasing the width of road of 15 meters and the resolution of the
General Body is of 24 meters cannot be said to be a ground to come
to a conclusion that the subject discussed in the meeting was not the
one which was specified in the agenda.
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25. Insofar as the contention of the learned Counsel for the
petitioners that the Judgment of the Division Bench of this Court in
the case of Mihir Tatthe (cited supra) would not be applicable to the
present case, since, in the case of Mihir Tatthe, the General Body
itself had passed a resolution authorising the Municipal
Commissioner to take all further steps in the matter; whereas no
such resolution was passed in the present case is concerned, in our
view, in view of the following discussion, the said contention is also
without any substance.
26. It will be appropriate to refer to the following part of the
resolution of the General Body of Nagpur Municipal Corporation in
its meeting dated 29th March, 2008. A true translated version reads
thus :
Under City Road Development Programme, there
is proposal of making road from Central Avenue to
Kelibag up to C. P. & Berar College 15.00 mt.wide. The
width of Kelibag road in sanctioned Development Plan
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was shown to be 24.00 mt. But marking of widening of
24.00 mt.has been cancelled by blue colour under section
29 and the demarcation of road is shown by blue colour
less than the width shown by red line. It means
widening of road up to 24.00 mt. has been cancelled.
But word '24.00 mt.' has not been cancelled. Thus, it is
necessary to rectify the mistake in Development Plan.
The House has taken into consideration the
question of conferring powers upon Municipal
Commissioner for taking action u/sec. 37 of
Maharashtra Regional and Town Planning Act, 1966,
for effecting said modifications in Development Plan,
publication of Notification of said modifications, taking
necessary decision on the objections received thereon and
submission of proposal to the Government for approval."
In this way, under City Road Development
Programme, there is proposal of making road from
Central Avenue to Kelibag up to C. P. & Berar College
15.00 mt. Wide. The width of Kelibag road in
sanctioned Development Plan was shown to be 24.00
mt. But marking of widening of 24.00 mt. has been
cancelled by blue colour under section 29 and the
demarcation of road is shown by blue colour less than
the width shown by red line. It means widening of road
up to 24.00 mt. has been cancelled. But word '24.00
mt.' has not been cancelled. Thus, it is necessary to
rectify the mistake in Development Plan.
50 wp1501.16.odt
The House after taking into consideration the
question of conferring powers upon Municipal
Commissioner for taking action u/sec. 37 of
Maharashtra Regional and Town Planning Act, 1966,
for effecting said modifications in Development Plan,
publication of Notification of said modifications, taking
necessary decision on the objections received thereon
and submission of proposal to the Government for
approval, rejected the said subject and the House
unanimously approved the suggestion of widening the
proposed road up to 24.00 mt. made by Leader of
Ruling Party Shri Anilji Sole and members Shri Pravin
Datke and Bandu Raut, by raising voice as 'Pass Pass'.
27. It could thus be seen that the subject which was for
consideration before the General Body was with regard to taking
necessary steps for minor modification u/s.37 of the said Act for
publication of notice with regard to proposed modification,
inviting objections and for authorising the Municipal
Commissioner to take appropriate decision on the said objection
and submit proposal to the State Government. It could thus be
seen that the subject before the Committee was for authorising
the Commissioner to take necessary steps in respect of said road
51 wp1501.16.odt
with regard to keeping width of road to 15 meters. However, the
House rejected the said proposal and passed the resolution to
keep width of the road to 24 meters. It is pertinent to note that
the said resolution is passed unanimously. We, therefore, find
that the contention of the petitioners that the Judgment of the
Division Bench in the case of Mihir Yadunath Tatthe (cited
supra) will not be applicable to the facts of the present case,
would not be sustainable in law. At the cost of repetition, it is to
be noted that, the entire subject was before the House. However,
the only change in the resolution is with regard to width of the
road from 15 to 24 meters.
28. The next ground pressed into service is with regard to
objection being heard by the Additional Deputy Municipal
Commissioner and the Assistant Director of Town Planning and not
the Commissioner. A reliance in this respect is sought to be placed on
the Judgment of the Division Bench of this Court in the case of
S.Nandkishore Lahoti (cited supra). However, we find that, in view
of the direct Judgment by Division Bench of this Court, considering
the very same provision which falls for consideration before us, it is
not necessary to refer to the Judgment of the Division Bench in the
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case of S.Nandkishore Lahoti (supra) which deals with the question
of sub-delegation under the provisions of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1966.
29. The Division Bench of this Court in the case of Mihir
Yadunath Tatthe (cited supra) has considered the very issue which
falls for consideration before us, wherein a challenge was raised that
hearing was not given by the Municipal Commissioner but by the
City Engineer and as such, the report submitted by the Corporation
was not in accordance with law. It will be relevant to refer to
paragraph nos. 65 and 68 of the said Judgment. They are as under :
"65. Applying the tests laid down by the Supreme Court in
the case of Jaswant Sugar Mill, the fact that the Planning
Authority, pursuant to the direction given by the State
Government under Section 37(1), is required to publish a
notice inviting objections/suggestions within 60 days from
the said direction and to prepare a report after hearing the
objections of the person affected by the proposed
modification and forward the same to the State
Government for action under Section 37(2), it cannot be
said that the acts done by the Planning Authority are
judicial/quasi judicial act. Rather, such acts of the
Planning Authority are administrative. Once the sanction
has been accorded by the General Body of the PMC, after
the receipt of the direction from the State Government for
including the said land in residential zone deleting it from
HTHS Zone and make changes as per Section 37 (1), to
issue public notice calling objections/suggestions from the
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public and to prepare a report under Section 37(1) of the
Town Planning Act and send the proposal to the State
Government for final approval, such decision has to be
carried out by the executive functionary i.e., the Municipal
Commissioner either by himself or through his subordinate
officials. In the matter such as this with which we are
concerned, the act of the Municipal Commissioner in
issuing public notice calling objections/suggestions from the
public, the authorisation to the City Engineer to collect
objections and hear objectors and prepare the report and
the act of forwarding the report to the State Government
alongwith complete record are not the act of agency or
delegation but implicit in the discharge of executive
functions and all these acts shall be deemed to have been
done by the Planning Authority."
"68.We are afraid, the judgment in the case of C.V. Shah
has no application in the facts of the present case. As
already noticed, in the present case, the Pune Municipal
Corporation in its meeting held on 26th December, 2000
accorded sanction for including the subject land in the
residential zone deleting it from HTHS Zone and make
changes as per Section 37(1), to issue public notice calling
for objections/suggestions from the public and to prepare
a report and send the proposal to the State Government
for final approval. The resolution having been passed
by the General Body, obviously, its implementation
has to be done by the Municipal Commissioner and
his subordinate officials and that is what has been
done in the present case. It is not necessary that the
resolution passed by the general body has to be
implemented by the Municipal Commissioner himself
who is the Chief Executive Officer. In the very
functioning of the Corporation in executive matters,
the Municipal Commissioner can always take
assistance of his subordinates and, accordingly, he
cannot be said to have committed any illegality in
directing that persons affected due to the
modification shall be heard by the City Engineer and
consequently, the City Engineer heard the objectors
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who were present for the hearing." (emphasis
supplied).
30. It could thus be seen that the contention as raised by the
learned Counsel for the petitioners, that since the hearing was given
by the Additional Deputy Municipal Commissioner and the Assistant
Director of Town Planning and not by the Commissioner, there was
non-compliance of the Statutory provision, stands specifically
rejected in view of the Judgment of the Division Bench in the case of
Mihir Yadunath Tatthe (cited supra).
31. Learned Counsel for the petitioners has further
submitted that the material placed before the Authorities by the
petitioners, ought to have been taken into consideration by the
Authorities, same ought to have been evaluated and thereafter
decision ought to have been taken after considering the same. In this
respect, the learned Counsel for the petitioners has relied on the
three judgments of the Hon'ble Supreme Court (cited supra).
However, we are of the considered view that none of the Judgments
would be applicable to the facts of the present case.
55 wp1501.16.odt
32. In the case of Union of India and Others .vs. Shiv Raj
and Others (cited supra), Their Lordships were considering the
provisions of Section 5-A of the Land Acquisition Act, wherein a
specific right was given to the persons, whose land is sought to be
acquired, to satisfy the Authority that the land is not required for
public purpose or that there are valid reasons for not acquiring the
same. It could thus be seen that the powers exercised by the
Authorities under the provisions of Section 5-A of the said Act are
not legislative in nature, whereas the impugned notification is issued
by the State Government in exercise of its quasi-legislative powers.
33. Similarly, in the case of Bhikubhai Vithlabhai Patel and
Others (cited supra), Their Lordships, while interpreting the words
"is of opinion" and "are necessary" as could be found in Section 17(1)
(a)(ii) of the Gujarat Town Planning and Urban Development Act,
1976, observed that the Court was entitled to examine whether there
has been any material available with the State Government and the
reasons recorded, if any, in the formation of opinion and whether
they have any rational connection with or relevant bearing on the
formation of the opinion or not. It could be seen that no such
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expressions are found in the provisions of Section 37 of the said Act.
As has been held, powers are found to be legislative in nature. As
such, the said Judgment would also not be applicable in the facts of
the present case.
34. Again in the case of State of U.P. and another .vs. Johri
Mal (supra), Their Lordships were considering the case with regard
to appointment of Public Prosecutor. As such, it could be seen that
Their Lordships were considering the exercise of powers by the State
of an administrative action and not a legislative action and as such,
the said Judgment would also not be applicable to the facts of the
present case.
35. Insofar as the contention raised by the learned Counsel
for the petitioners that, if the width of the road is kept at 15 meters
than 24 meters, it will cause a lesser hardship to the citizens is
concerned, in our considered opinion, a scrutiny in that regard
would amount to exceeding our jurisdiction while examining the
legislative function of a delegatee. As such, it will not be possible for
57 wp1501.16.odt
us to consider the submission made by the learned Counsel for the
parties in that regard.
36. That leaves us with the next ground as raised on behalf
of the petitioners, with regard to consultation. Again, in the case of
Ram Tawakya Singh .vs. State of Bihar reported in (2013) 16 SCC
206, Their Lordships of the Apex Court were considering the powers
of the Chancellor to make appointment of Vice Chancellor. It could
thus be seen that the observations made by Their Lordships of the
Apex Court in the said case, were, while considering the requirement
of consultation, while exercising the executive powers of an
Authority and not while exercising legislative powers. It will be
relevant to refer to the observations made by Their Lordships of the
Apex Court in the case of Indian Administrative Service (S.C.S.)
Association, U.P. and Others .vs. Union of India and Others
reported in 1993 Supp (1) SCC 730 while considering the scope of
consultation, when the Central Government exercises the rule
making powers to amend the rules, regulating the service conditions
of Officers of All India Services. They are as under :
58 wp1501.16.odt
"26. The result of the above discussion leads to the
following conclusions:
(1) Consultation is a process which requires meeting of
minds between the parties involved in the process of
consultation on the material facts and points involved
to evolve a correct or at least satisfactory solution.
There should be meeting of minds between the proposer
and the persons to be consulted on the subject of
consultation. There must be definite facts which
constitute the foundation and source for final decision.
The object of the consultation is to render consultation
meaningful to serve the intended purpose. Prior
consultation in that behalf is mandatory.
(2) When the offending action affects fundamental
rights or to effectuate built-in insulation, as fair
procedure, consultation is mandatory and non-
consultation renders the action ultra vires or invalid or
void.
(3) When the opinion or advice binds the proposer,
consultation is mandatory and its infraction renders the
action or order illegal.
(4) When the opinion or advice or view does not bind
the person or authority, any action or decision taken
contrary to the advice is not illegal, nor becomes void.
(5) When the object of the consultation is only to
apprise of the proposed action and when the opinion or
advice is not binding on the authorities or person and is
not bound to be accepted, the prior consultation is only
directory. The authority proposing to take action
should make known the general scheme or outlines of
the actions proposed to be taken be put to notice of the
authority or the persons to be consulted; have the views
59 wp1501.16.odt
or objections, taken them into consideration, and
thereafter, the authority or person would be entitled or
has/have authority to pass appropriate orders or take
decision thereon. In such circumstance it amounts to an
action "after consultation".
(6) No hard and fast rules could be laid, no useful
purpose would be served by formulating words or
definitions nor would it be appropriate to lay down the
manner in which consultation must take place. It is for
the Court to determine in each case in the light of its
facts and circumstances whether the action is "after
consultation"; "was in fact consulted" or was it a
"sufficient consultation".
(7) Where any action is legislative in character, the
consultation envisages like one under Sec. 3(1) of the
Act, that the Central Government is to intimate to the
State Governments concerned of the proposed action
in general outlines and on receiving the objections or
suggestions, the Central Government or Legislature is
free to evolve its policy decision, make appropriate
legislation with necessary additions or modification or
omit the proposed one in draft bill or rules. The
revised draft bill or rules, amendments or additions in
the altered or modified form need not again be
communicated to all the concerned State Governments
nor have prior fresh consultation Rules or Regulations
being legislative in character, would tacitly receive the
approval of the State Government through the people's
representative when laid on the floor of each House of
Parliament. The Act or the Rule made at the final
shape is not rendered void or ultra vires or invalid for
non-consultation.
37. It could thus be seen that Their Lordships have in sub-
paragraph 7 held that where any action is legislative in character, the
60 wp1501.16.odt
consultation envisaged is that the consultor should intimate to the
consultee of the proposed action in general outline and on receiving
the objections or suggestions, the Central Government or Legislature
is free to evolve its policy decision by making appropriate legislation
with necessary additions or modification or omit the proposed one in
draft bill or rules. It has clearly been held that the revised draft bill or
rules, amendments or additions in the altered or modified form need
not again be communicated to all the concerned State Governments
nor have prior fresh consultation.
38. In the present case, perusal of the file, a copy of which is
placed on record of the petition itself, would reveal that the opinion
as expressed by the Director of Town Planning was very much
available on record. It will also reveal that the file has moved at
various stages on number of occasions. Information was sought from
the Commissioner of Nagpur Municipal Corporation as to whether
width of road could be maintained at 24 meters without the heritage
structures being adversely affected. Not only that, but minutes of the
meeting of Heritage Committee dt.8.4.2011 approving widening of
the road to 24 meters were also taken into consideration by the State
Government. Perusal of the file further reveals that though the
61 wp1501.16.odt
initial proposal as submitted by the Subordinate Officer of the State
Government was for sanction of width of road to 18 meters, the Joint
Secretary of the State Government did not agree with it and put up
an endorsement that opinion of the Director does not appear to be
correct taking into consideration the traffic issue. He has, therefore,
recommended to accept the proposal of the Corporation to increase it
to 24 meters, in order to have smooth traffic flow. Same was also
approved by the Principal Secretary. Thereafter, the Chief Minister
had put a note to obtain report of Commissioner, Nagpur Municipal
Corporation as to whether, width of road could be maintained to 24
meters, without affecting the Heritage Structure of Murlidhar temple,
Kelibag temple and Gujar gateway. Since the said report was already
available, the file was resubmitted on 5.11.2014. The same was
approved by the Joint Secretary, the Principal Secretary and
thereafter, by the Hon'ble Chief Minister. It could thus be seen that
the opinion of the Director of Town Planning was very much taken
into consideration by the State Government while arriving at a final
decision. However, it cannot be said that the State Government was
bound to accept the opinion as expressed by the consultee i.e. the
Director of Town Planning.
62 wp1501.16.odt
39. Having considered other contentions as raised on behalf
of the petitioners, we propose to consider the submissions of the
petitioners that the State Government has failed to take into
consideration the objections raised by the petitioners and that the
inquiry contemplated under the provisions of Section 37 of the said
Act, required, that the State Government ought to have taken into
consideration each and every objection raised by the petitioners
objecting to the modifications as proposed by the Corporation and no
proper opportunity of hearing was given to the petitioners by the
State Government.
40. To appreciate the submissions made by the petitioners in
this behalf, it will be necessary to refer to the Judgment of Their
Lordships of Apex Court in the case of Pune Municipal Corporation
and another .vs. Promoters and Builders Association and another
reported in (2004) 10 SCC 796, wherein the very same provision,
which falls for consideration before us, has been considered by Their
Lordships. In the said case, it was contended that the sanction
granted by the State Government under sub-section 2 of Section 37
of the said Act was beyond the powers of the State Government u/s.
37(2). This Court had held that the language of Section 37(2) did
63 wp1501.16.odt
not allow the State Government to add conditions on its own or to
amend on its own in the modifications submitted by the Planning
Authority. Reversing the Judgment of this Court, Their Lordships of
the Apex Court observed thus :
"4..................Deliberation with the public before making
the amendment is over at this stage. The Government,
thereafter, under clause (2) is given absolute liberty to
make or not to make necessary inquiry before granting
sanction. Again, while according sanction, the
Government may do so with or without modifications.
The Government could impose such conditions as it deems
fit. It is also permissible for the Government to refuse the
sanction. This is the true meaning of the clause (2). It is
difficult to uphold the contrary interpretation given by
the High Court. The main limitation for the Government
is made under clause (1) that no authority can propose
an amendment so as to change the basic character of the
development plan. The proposed amendment could only
be minor within the limits of the development plan. And
for such minor changes it is only normal for the
Government to exercise a wide discretion, by keeping
various relevant factors in mind. Again, if it is arbitrary
or unreasonable the same could be challenged. It is not
the case of the respondents herein that the proposed
change is arbitrary or unreasonable. They challenged the
same citing the reason that the Government is not
empowered under the Act to make such changes to the
modification."
"5.....................As we have already pointed out, the true
interpretation of section 37(2) permits the State
government to make necessary modifications or put
conditions while granting sanction. In section 37(2), the
legislature has not intended to provide for a public
hearing before according sanction. The procedure for
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making such amendment is provided in section 37.
Delegated legislation cannot be questioned for violating
the principles of natural justice in its making except when
the statute itself provides for that requirement. Where the
legislature has not chosen to provide for any notice or
hearing, no one can insist upon it and it is not permissible
to read natural justice into such legislative activity.
Moreover, a provision for 'such inquiry as it may consider
necessary' by a subordinate legislating body is generally
an enabling provision to facilitate the subordinate
legislating body to obtain relevant information from any
source and it is not intended to vest any right in anybody.
(Union of India and Anr. v. Cynamide India Ltd and Anr.
(1987) 2 SCC 720 paragraphs 5 and 27. See generally
H.S.S.K. Niyami and Anr. v. Union of India and Anr.
(1990) 4 SCC 516 and Canara Bank v. Debasis Das
(2003) 4 SCC 557). While exercising legislative functions,
unless unreasonableness or arbitrariness is pointed out, it
is not open for the Court to interfere. (See generally
ONGC v. Assn. of Natural Gas Consuming Industries of
Gujarat 1990 (Supp) SCC 397) Therefore, the view
adopted by the High Court does not appear to be correct."
41. It could thus be seen that Their Lordships have held that
deliberation with the public, before making the amendment is over at
the stage the Planning Authority submits proposal with modification
to the Government. The Government thereafter, is given absolute
liberty to make or not to make necessary inquiry before granting
sanction. It has further been held that while according sanction,
Government may do so with or without modifications. It has further
been held that the Government could impose such conditions as it
65 wp1501.16.odt
deem fit. Their Lordships have further held that the only limitation of
the Government is that no authority can propose an amendment so
as to change the basic character of the development plan. The
proposed amendment could only be minor within the limits of the
Development Plan. Nodoubt that Their Lordships have held that the
same can be challenged on the ground that it is arbitrary or
unreasonable. It can further be seen that Their Lordships have held
that making of Development Control Rules or amendment thereof
are legislative functions. It is further held that the State Government
may, make such inquiry as it may consider necessary and after
consulting the Director of Town Planning by notification in the
Official Gazette, sanction the modification with or without such
changes and subject to such conditions as it may deem fit, or refuse
to accord sanction. If a modification is sanctioned, the final
Development Plans shall be deemed to have been modified
accordingly. It has further been held that delegated legislation
cannot be questioned for violating principles of natural justice in its
making, except when the Statute itself provides for that requirement.
It has further been held that a provision for 'such inquiry as it may
consider necessary' by a subordinate legislating body is generally an
enabling provision, to facilitate the subordinate legislating body to
66 wp1501.16.odt
obtain relevant information, from any source and it is not intended
to vest any right in anybody.
42. It is further pertinent to note that the Constitution Bench
of Their Lordships of Supreme Court in the case of K.T.Plantation
Pvt. Ltd. and another .vs. State of Karnataka reported in AIR 2011
SC 3430 has approved the view taken in the case of Pune Municipal
Corporation (cited supra). It will be appropriate to refer to the
following observations of Their Lordships in the case of K.T.
Plantation Pvt. Ltd. (cited supra) :
" We also find no force in the contention that
opportunity of hearing is a pre-condition for
exercising powers under Section 110 of the Act. No
such requirement has been provided under Section
107 or Section 110. When the exemption was
granted to Roerichs' no hearing was afforded so also
when the exemption was withdrawn by the delegate.
It is trite law that exemption cannot be claimed as a
matter of right so also its withdrawal, especially
when the same is done through a legislative action.
Delegated legislation which is a legislation in
character, cannot be questioned on the ground
of violation of the principles of natural justice,
especially in the absence of any statutory
requirement. Legislature or its delegate is also
not legally obliged to give any reasons for its
action while discharging its legislative function.
See - State of Punjab v. Tehal Singh and Ors.
67 wp1501.16.odt
(2002) 2 SCC 7 : (AIR 2002 SC 533 : 2002 AIR
SCW 105); West Bengal Electricity Regulatory
Commission v. CESC Ltd. etc. (2002) 8 SCC 715"
(AIR 2002 SC 3588 : 2002 AIR SCW 4212); Pune
Municipal Corporation and Anr. v. Promoters
and Builders Association and Anr. (2004) 10
SCC 796 : (AIR 2004 SC 3502 : 2004 AIR SCW
3352); Bihar State Electricity Board v. Pulak
Enterprises and Ors. (2009) 5 SCC 641 : (AIR 2009
SC (Supp) 1462 : 2009 AIR SCW 3505)."
(emphasis supplied).
43.
The Constitution Bench of Hon'ble Supreme Court
consisting of Hon'ble Seven Judges, in the case of M/s. Prag Ice and
Oil Mills and another .vs. Union of India reported in (1978) 3 SCC
459 was considering a challenge to the Mustard Oil (Price Control)
Order, 1977 - a subordinate legislation enacted by the Central
Government in exercise of powers vested in it under Section 3 of the
Essential Commodities Act. It will be appropriate to refer to the
following observations of Their Lordships :
"71. To sum up, it seems to us impossible to accept the
contention of the petitioners that the impugned Price
Control Order is an act of hostile discrimination against
them or that it violates their right to property or their
right to do trade or business. The petitioners have taken
us into the minutest details of the mechanism of their
trade operations and they have attempted to
demonstrate in relation thereto that a factor here or a
68 wp1501.16.odt
factor there which ought to have been taken into
account while fixing the price of mustard oil has been
ignored. Dealing with a similar argument it was
observed in Metropolis Theater Company v. City of
Chicago(1) that to be able to find fault with a law is
not to demonstrate its invalidity.
"It may seem unjust and oppressive, yet be free
from judicial interference. The problems of government
are practical ones and may justify, if they do not
require, rough accommodations, illogical, it may be,
and unscientific. But even such criticism should not be
hastily expressed. What is best is not always discernible;
the wisdom of any choice may be disputed or
condemned. Mere errors of government are not subject
to our judicial review. It is only its palpably arbitrary
exercises which can be declared void....
" The Parliament having entrusted the fixation of
prices to the expert judgment of the Government, it
would be wrong for this Court, as was done by common
consent in Premier Automobiles to examine each and
every minute detail pertaining to the Governmental
decision. The Government, as was said in Permien
Basin Area Rate Cases, is entitled to make pragmatic
adjustments which may be called for by particular
circumstances and the price control can be declared
unconstitutional only if it is patently arbitrary,
discriminatory or demonstrably irrelevant to the policy
which the legislature is free to adopt. The interest of the
producer and the investor is only one of the variables in
the "constitutional calculus of reasonableness' and
Courts ought not to interfere so long as the exercise of
Governmental power to fix fair prices is broadly within
a "zone of reasonableness'. If we were to embark upon
an examination of the desperate contentions raised
before us on behalf of the contending parties we have
no doubt that we shall have exceeded our narrow and
circumscribed authority."
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44. It could thus be seen that, before Their Lordships, an
argument was sought to be advanced that various factors which
ought to have been taken into consideration while fixing the price of
mustard oil were ignored. It could further be seen that Their
Lordships have held that legislative action can be declared
unconstitutional only if it is patently arbitrary, discriminatory or
demonstrably irrelevant to the policy which the legislature is free to
adopt. It has further been held that, in such matters, Court ought
not to interfere so long as the exercise of Governmental power is
broadly within a "zone of reasonableness". It has further been held
that if the Courts were to embark upon an examination of the
minute details as raised before Their Lordships on behalf of
contending parties, the Court will be exceeding its powers.
45. It will also be appropriate to refer to the observations of
Their Lordships of the Apex Court in the case of Union of India and
another .vs. Cynamide India Ltd. and another reported in (1987)
2 SCC 720.
70 wp1501.16.odt
"6. Occasionally the legislature directs the
subordinate legislating body to make 'such enquiry
as it think fit' before making the subordinate
legislation. In such a situation, while such
enquiry by the subordinate legislating body as it
deems fit is a condition precedent to the
subordinate legislation, the nature and the extent
of the enquiry is in the discretion of the
subordinate legislating body and the subordinate
legislation is not open to question on the
ground that the enquiry was not as full as it
might have been. The provision for 'such enquiry
as it thinks fit' is generally an enabling provision,
intended to facilitate the subordinate legislating
body to obtain relevant information from all and
whatever source and not intended to vest any
right in anyone other than the subordinate
legislating body. It is the sort of enquiry which the
legislature itself may cause to be made before
legislating, an enquiry which will not confer any
right an anyone." (emphasis supplied).
46. It could be seen that the words which fall for
consideration before us i.e. "such inquiry as it may consider
necessary" are almost similar to the words which had fallen for
consideration before Their Lordships "such inquiry as it thinks fit".
While interpreting the said words, Their Lordships held that while
such enquiry by the subordinate legislating body as it deems fit is a
condition precedent to the subordinate legislation, the nature and
the extent of the enquiry is in the discretion of the subordinate
legislating body and the subordinate legislation is not open to
71 wp1501.16.odt
question on the ground that the enquiry was not as full as it might
have been. It has further been held that such provision for 'such
enquiry as it thinks fit' is generally an enabling provision, intended
to facilitate the subordinate legislating body to obtain relevant
information from all and whatever source considered necessary. It
is the sort of enquiry which the legislature itself may cause to be
made before legislating, an enquiry which will not confer any right
on anyone other than the enquiring body.
47. It could thus be seen that it will not be open for this
Court to question the inquiry conducted by the Authority, while
exercising its legislative powers to find out as to whether the enquiry
was not as full as it might have been. The only permissible inquiry
would be, as to whether the inquiry as contemplated under the
provisions was in fact conducted by it or not. In view of paragraph 4
in the said Judgment, the only inquiry that would be permissible for
this Court, would be as to whether the policy and factors are present
in the mind of the authorities exercising powers or not, as to whether
relevant considerations have gone in and irrelevant considerations
are kept out of determination while exercising powers or not.
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48. In our considered view it will, therefore, not be possible
to accept the contention of the petitioners, that the State
Government ought to have taken into consideration, the detailed
objections as raised by the petitioners and recorded reasons for not
accepting the said objections prior to issuing the impugned
notification. As already discussed by us hereinabove, perusal of the
file would reveal that the State Government has taken into
consideration, all the relevant factors. Perusal of the file would reveal
that the objection raised by the parties and comments thereto by the
Planning Authority were very much available, in the nature of report
submitted by the Commissioner. The views of various Authorities
including the Director of Town Planning were also very much
available before the State Government. The minutes of meeting of
Heritage Committee were taken into consideration by the State
Government. Not only that, but specific query was made to the
Commissioner of Nagpur Municipal Corporation, as to whether it was
feasible to maintain width of road to 24 meters, without affecting the
Heritage structure of Murlidhar temple, Kelibag temple and Gujar
gateway. The Commissioner of Nagpur Municipal Corporation has
accordingly replied vide his communication dt.3.10.2013 stating
therein that it was possible to maintain width of said road to 24
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meters after making certain changes. The said have also been
considered by the State Government while taking final decision. Not
only that, but the impugned notification itself imposes a condition
that the heritage structure of Murlidhar temple, Kelibag temple and
Gujar gateway shall be kept intact, while widening the said road as
per the plan width.
49. It will be appropriate to refer to the following
observations of Their Lordships in the case of State of T.N. and
another vs. P. Krishnamurthy and Others (cited supra). They are as
under :
"15. There is a presumption in favour of constitutionality or
validity of a subordinate legislation and the burden is upon
him who attacks it to show that it is invalid. It is also well
recognized that a subordinate legislation can be challenged
under any of the following grounds :
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed under the
Constitution of India.
(c) Violation of any provision of the Constitution of
India.
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(d) Failure to conform to the statute under which it is
made or exceeding the limits of authority conferred by the
enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent
where the court might well say that the legislature never
intended to give authority to make such rules)."
"16. The court considering the validity of a subordinate
legislation, will have to consider the nature, object and
scheme of the enabling Act, and also the area over which
power has been delegated under the Act and then decide
whether the subordinate legislation conforms to the parent
statute. Where a rule is directly inconsistent with a
mandatory provision of the statute, then, of course, the task
of the court is simple and easy. But where the contention is
that the inconsistency or non-conformity of the rule is not
with reference to any specific provision of the enabling Act,
but with the object and scheme of the parent Act, the court
should proceed with caution before declaring invalidity. "
50. It could thus be seen that Their Lordships have held that
there is a presumption in favour of constitutionality or validity of a
subordinate legislation and the burden is upon him who attacks it to
show that it is invalid. Applying parameters laid down by the Apex
Court, it cannot be held and it is not even the case of the petitioners,
that the State Government is lacking legislative competence to issue
impugned notification. It is also not the case of violation of any of
the fundamental rights guaranteed under the Constitution of India.
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No case is made out of violation of any provisions of the Constitution
of India. As already discussed by us hereinabove, perusal of the
material would reveal that the power is exercised in conformity of
the provisions u/s.37 (1) and (2) of the said Act and within limits as
provided under the said provision and as such, the case would not
fall under clause (d). It is also not the case of the petitioners that the
impugned notification is repugnant to any of the laws. Insofar as
clause (f) is concerned, though the petitioners have sought to bring
their case under the ambit of arbitrariness or unreasonableness;
however, for bringing the case under the said clause, in view of the
Judgment of the case of Supreme Court Employees' Welfare
Association .vs. Union of India reported in (1989) 4 SCC 187, the
petitioners will have to establish that the impugned notification is
patently arbitrary or unreasonable.
As has been discussed hereinabove, upon perusal of the
copy of noting in the file, we find that it cannot be said that the
petitioners have been in a position to make out a case of palpable
arbitrariness or unreasonableness.
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51. That leaves us with one additional ground in Writ
Petition No.5056 of 2016. Perusal of the material placed on record
by the petitioners themselves would reveal that status of Heritage
structure is granted to Gujar gateway and tomb (Samadhi).
52. Perusal of the accompaniment to the Heritage Building
Notification dt.15.10.2003 would reveal that Column No.11 of the
said Schedule shows Serial No.73 to be a gateway. Not only that, but
clause (B) itself shows that the mosque has been altered. Perusal of
various items in the said Schedule would reveal that as to what
structure is to be recognized as 'Heritage Structure' has been shown
in Column No.11. That Column No.3 of Serial No.73 shows Gujar
Gateway and Mosque. Column No.11 shows only gateway. Similarly,
at Sr. No.78 and 79, Column No.11 shows gateway. Whereas at
Serial No.82 in Column No.3, the structure shown is Fattepur Masjid
and Column No.11 shows mosque. Similarly, Serial No.91 shows
Column No.3 to be group of temples and Chattris. Column No.11
shows temple and Chattris. Similarly, at Serial Nos. 94 and 97,
Column No.3 shows St. Francis De sales. Catherdral and 1840's
Church respectively. Column No.11 also shows Church. It could thus
be seen that the Structures which are to be recognized as Heritage
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Structures are shown in Column No.11. In any case, it is even
admission of the petitioners that the mosque and shops are
reconstructed in the year 1982 and that too, not as per original
design. It will be relevant to refer to the following part of the
minutes of meeting of the Heritage Conservation Committee
dt.8.4.2011. A true translated version reads thus :
"2) Point No.2 on the agenda was taken up for
discussion. The site inspection report of the Kelibag Road
was read out before the committee. At the end of the
inspection, it had been decided that it was not very clear as
to which heritage structure would be affected by the
proposed widening of the Kelibag Road to 24 mtrs. The
N.M.C. had been requested to prepare a map showing which
heritage structures would be affected and also to present
photographs of these structures. After this information was
submitted to the committee, further decision would be
taken. The N.M.C. has now prepared a map showing in
detail as to which heritage structure would be affected by
the road widening. This map was considered by the
committee. Relevant photographs were also shown to the
committee by Shri A.B.Mogarkar, Dy. Engineer, N.M.C.,
Nagpur.
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A list of the heritage structure affected by proposed road
widening is as follows :
1.Kalyaneshwar quadrangle Grade I Open Space.
2.Kelibag Temple Complex Grade I Temple.
3.Gujar Gateway & Mosque Grade I Gateway.
4.Municipal Corporation Grade II Institution.
5.Murlidhar Temple Grade II Temple.
It was noted that going from South to North, The Grade I
Structures are the Kalyaneshwar Quadrangle, the rear
portion of the Murlidhar Temple and east part of the
Kelibag Temple Mosque Structure (Altered). It is noted that
this road is a major artery of the city and connects Central
Avenue to The Great Nag Road which leads upto Umred
Road. Considering the great increase in the volume of traffic
on this road the widening of the road has become a
necessity. The committee therefore decided to accord its
approval to the proposal of the Nagpur Municipal
Corporation for widening of the Kelibag Road to 24 mtrs.,
subject to the condition that the Grade I structures of
Murlidhar Temple, Kelibag Temple and Gujar Gateway shall
be retained. "
53. It could thus be seen that the Heritage Committee itself
has granted its approval to the proposal of Nagpur Municipal
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Corporation for widening of Kelibag road to 24 meters subject to
condition that the structures are retained. In the said list, Gujar
gateway is also included. It is further to be noted that the impugned
notification itself provides that the minor modification is granted
subject to the condition that the Heritage structures of Murlidhar
temple, Kelibag temple and Gujar gateway shall be kept intact while
widening the said road as per the plan width. Mr.C.S.Kaptan, learned
Senior Counsel appearing on behalf of the Corporation has made a
categorical statement on instructions of the Officers present in the
Court that the grave (Samadhi) and Gujar gateway which are
Heritage structures, would not be affected in the expansion of the
road as proposed. In that view of the matter, we find that the
contention of the petitioners that the Heritage structure is being
affected by expansion is without substance.
54. Mr.M.G.Bhangde, learned Senior Counsel appearing on
behalf of the petitioners has strongly relied on the following
observations of Their Lordships of Apex Court in the case of Cellular
Operators Association of India and Others .vs. Telecom
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Regulatory Authority of India and Others reported in (2016) 7
SCC 703.
"No doubt in the facts of the present case, the Authority
did hold due consultations with all stakeholders and did
allow all stakeholders to make their submissions to the
Authority. However, we find no discussion or reasoning
dealing with the arguments put forward by the service
providers, that call drops take place for a variety of
reasons, some of which are beyond the control of the
service provider and are because of the consumer
himself. Consequently, we find that the conclusion that
service providers are alone to blame and are
consequently deficient in service when it comes to call
drops is not a conclusion which a reasonable person can
reasonably arrive at."
55. Nodoubt, that Mr.Bhangde, learned Senior Counsel is
justified in contending that, since in the said case Their Lordships
observed that they do not find any discussion or reasoning dealing
with arguments put forward by service providers that call drop takes
place for valid reasons and some of them beyond the control of
service providers and as such, the subordinate legislation was not
found to be sustainable in the said case; by applying same analogy,
since no reasons are available for rejecting the valuable objections of
the petitioners, the impugned notification should also be quashed
and set aside.
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56. However, it is to be noted that the aforesaid
observations are made by Their Lordships while considering Sub-
section (4) of Section 11 of the Telecom Regulatory Authority of
India Act, 1997 :
"4. The Authority shall ensure transparency while
exercising its powers and discharging its functions. "
57. Their Lordships finding that there was no definition of
word 'transparency' in the Telecom Regulatory Authority of India Act,
1997, considering the definition of word 'transparency' as provided
under the Airports Economic Regulatory Authority of India Act,
2008, have made the aforesaid observations. Apart from that, in the
said case, Their Lordships further found that the regulations
impugned in the said case did not carry out the purpose of the Act
and therefore, were liable to be held to be ultra vires the parent Act.
It was further found by Their Lordships that the service provider was
made to pay for call dropping for the reasons that may not be
attributed to its fault and as such, that made regulation impugned
therein framed without intelligent care and deliberation. Their
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Lordships further found that the regulation impugned in the said
case and quality of service regulations were required to be read
together as part of single Scheme in order to test reasonableness
thereof. It was further held that, ignoring quality of Service
Regulations, 2009, while framing regulation impugned in the said
case would render the impugned regulation arbitrary or
unreasonable.
58.
In our considered view, the aforesaid observations relied
on by Mr.M.G.Bhangde, learned Senior Counsel cannot be made
universally applicable. The said observations were in view of the
word "transparency" as found in Section 11 (4) of the Telecom
Regulatory Authority of India Act, 1997 r/w. definition of word
'transparency' in the Airports Economic Regulatory Authority of India
Act, 2008. However, it is to be noted that, alive to the ground
situation, that such provisions are not to be found in most of the
legislations, Their Lordships have observed thus :
"92.We find that, subject to certain well defined
exceptions, it would be a healthy functioning of our
democracy if all subordinate legislation were to be
"transparent" in the manner pointed out above.
Since it is beyond the scope of this judgment to
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deal with subordinate legislation generally, and
in particular with statutes which provide for
rule making and regulation making without any
added requirement of transparency, we would
exhort Parliament to take up this issue and
frame a legislation along the lines of the US
Administrative Procedure Act (with certain well-
defined exceptions) by which all subordinate
legislation is subject to a transparent process by
which due consultations with all stakeholders
are held, and the rule or regulation -making
power is exercised after due consideration of all
stakeholders' submissions, together with an
explanatory memorandum which broadly takes
into account what they have said and the
reasons for agreeing or disagreeing with them.
Not only would such legislation reduce arbitrariness
in subordinate legislation-making, but it would also
conduce to openness in governance. It would also
ensure the redressal, partial or otherwise, of
grievances of the stakeholders concerned prior to the
making of subordinate legislation. This would
obviate, in many cases, the need for persons to
approach courts to strike down subordinate
legislation on the ground of such legislation being
manifestly arbitrary or unreasonable." (emphasis
supplied).
59. It could thus be seen that Their Lordships have strongly
advised the Parliament to take up the issue and frame a legislation
along the lines of US Administrative Procedure Act, by which all
subordinate legislations are made subject to transparent process by
which due consultations with all stakeholders are held, and the rule
or regulation-making power is exercised after due consideration of
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all stakeholders' submissions, together with an explanatory
memorandum which broadly takes into account what they have said
and the reasons for agreeing or disagreeing with them.
60. However, in the facts of the present case, in absence of a
provision which is analogous to provisions of Section 11 (4) of the
Telecom Regulatory Authority of India Act, 1997 and until the
Parliament enacts a legislation as advised by Their Lordships of the
Apex Court, we will have to examine the present case as per the law
laid down by the Constitution Bench of Apex Court consisting of
seven Hon'ble Judges in the case of M/s. Prag Ice and Oil Mills and
another (cited supra), in the cases of State of Tamil Nadu vs.
P.Krishnamurthy and Others cited supra), Union of India and
another .vs. Cynamide India Ltd. and another (cited supra) and
Pune Municipal Corporation and another (cited supra) as approved
by the Constitution Bench of the Apex Court in the case of K. T.
Plantation Pvt. Ltd. (cited supra). Hereinabove, we have in extenso
considered the aforesaid Judgments of the Hon'ble Apex Court. We
are of the considered view that the petitioners have failed to bring
the case within any of the parameters on which the challenge to
legislative functions of the delegatee would be permissible.
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61. In the result, the petitions fail and are dismissed.
However, in the facts and circumstances, no order as to costs.
JUDGE JUDGE
62.
At this stage, the learned Counsel for the petitioners pray
for extension of interim protection, which was granted by this Court,
for a further period of six weeks. Mr.C.S.Kaptan, learned Senior
Counsel appearing on behalf of the Nagpur Municipal Corporation
makes a statement that the Corporation would not take any steps for
demolition of the structures which would be affected by the proposed
road for a period of six weeks from today. In that view of the matter,
no orders are necessary.
JUDGE JUDGE
[jaiswal]
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