Bombay High Court
Citizen Forum For Equality ... vs The State Of Maha. Through Chief ... on 7 September, 2016
Bench: B.P. Dharmadhikari
pil47.13 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
PUBLIC INTEREST LITIGATION NO. 47 OF 2013
Citizen Forum For Equality,
a registered NGO, vide registration
No. MH/645/11 through its President
Mr. Madhukar Ganpat Kukde
r/o 207, Behind Indian Coffee House,
Second Lane, Gokulpeth, Nagpur - 10.
Mobile No. 09423104432. ... PETITIONER
Versus
1. The State of Maharashtra
through its Chief Secretary,
Mantralaya, Madam Kama Road,
Mumbai.
2. The Hon'ble Chief Minister,
State of Maharashtra and
Minister of Urban Development
State of Maharashtra, Mantralaya,
Madam Kama Road, Mumbai.
3. The Secretary, Urban Development
Department, State Government of
Maharashtra, Mantralaya, Madam
Kama Road, Mumbai.
4. The Director, Town Planning,
State Government of Maharashtra,
Central Buildings, Pune 411 001.
5. The Deputy Director,
Town Planning, Civil Lines,
Nagpur.
6. Shri Sushil Kumar Shinde,
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Ex-Chief Minister of Maharashtra
and Present Union Minister of Home,
North Block, New Delhi.
7. The Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
8. The Chairman,
Nagpur Improvement Trust,
Sadar, Nagpur.
9. The Maharashtra Rashtra Bhasha
Sabha, Rashtrabhasha Bhavan,
Narayan Peth, Pune.
10.Shri Mohan Dhariya,
President of Maharashtra Rashtra
Bhasha Sabha, Narayan Peth, Pune.
11.Shri Girish Gandhi,
Vice President of Maharashtra
Rashtra Bhasha Sabha,
Narayan Peth, Pune.
12.M/s. Prajakta Developer,
185, Shivaji Nagar, Nagpur
through its Authorized Partner
Shri Deepak Saptarshi.
13.SMG Hospitals Private Limited,
135, Pande Lay Out, Khamla,
Nagpur, through its Director.
14.Shri Datta Meghe, Chairman,
SMG Hospitals Private Limited,
135, Pande Lay Out, Khamla,
Nagpur.
15.Shri Sagar Meghe, Director,
SMG Hospitals Private Limited,
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135, Pande Lay Out, Khamla,
Nagpur.
16.M/s. Wockhardt Hospitals Pvt.
Ltd., Mumbai, Wockhardt Complex,
Bandra Kurla Complex,
Mumbai 400 051.
17.The Director, Central Bureau of
Investigations, New Delhi. ... RESPONDENTS
Shri Tushar Mandlekar, learned counsel for the petitioner.
Shri N.R. Patil, learned AGP for respondent Nos. 1, 3 & 4.
Shri S.M. Puranik, learned counsel for respondent Nos. 5 & 7.
Shri S.K. Mishra, learned Senior Advocate with Shri K.
Deogade, learned counsel for respondent No. 8.
Shri M.G. Bhangde, learned Senior Advocate with Shri A.P.
Kalmegh, learned counsel for respondent No. 9.
Shri C.S. Dharmadhikari, learned counsel for respondent No.
12.
Shri S.P. Dharmadhikari, learned Senior Advocate with Shri
P.D. Meghe, learned counsel for respondent No. 13.
Shri S.V. Manohar, learned Senior Advocate with Shri D.V.
Chauhan, learned counsel for respondent No. 16.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVE : JULY 29, 2016.
DATE OF PRONOUNCEMENT : SEPT. 07, 2016.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
In this Public Interest Litigation basically
modification in user of a plot in Development Plan, its
allotment to Respondent No. 9, illegal building construction
upon it and failure of land owner - Nagpur Improvement Trust
(N.I.T.) or Planning Authority - Nagpur Municipal Corporation
to exercise rights or to discharge obligations, are the challenges
which arise for consideration. The development plan was
finalized under S. 31 of the Maharashtra Regional and Town
Planning Act, 1966 (hereafter MRTP Act) and NIT constituted
under the Nagpur Improvement Trust,1936 (NIT Act hereafter)
was the planning authority in respect of said plot till
27.02.2002. Thereafter, it is the NMC functioning under the
City of Nagpur Corporation Act, 1948. The Development
Control Rules of 1983 & 2000 (hereinafter DCR) also need to
be looked into.
2. Subject matter is a plot having House No. 1155
CTS No. 1143 at Ward No. 74, ad measuring little over 1.14
Acre. The said plot is for commercial use now. However, at
the time of its initial lease on 23.09.1961, granted by the
owner - NIT to Respondent No. 9 Public Trust ( Sabha
hereafter), it was meant for public utility.
3. The reliefs claimed in the petition are to direct
Respondent No. 8 - NIT to immediately cancel allotment of
said land to Respondent No. 9 on account of violation of lease
deeds, allotment letter and all Land Disposal Rules, to call
upon said respondents to re-enter and take possession of plot
and to conduct fresh public auction thereof. A direction is
sought against Respondent No. 7 - Nagpur Municipal
Corporation and Respondent No. 8 to demolish unauthorized
structure constructed by Respondent No. 9 over it. There is
also a prayer for holding of CBI Inquiry and for prosecution of
those who have duped State Exchequer. Consequential
Resolution No. 29/988 passed by Respondent No. 8 on
30.03.2002, its Resolution No. 7/1034 dated 11.08.2005,
Government Notification dated 21.02.2004 under Section 37 of
the Maharashtra Regional and Town Planning Act, 1966, are
also questioned and sought to be set aside. The Management
Agreement signed by Respondent Nos. 9 to 16 (all Private
hospitals) on 05.10.2005 as also lease deed by Respondent No.
8 in favour of Respondent No. 9 dated 21.12.2006 are also
sought to be set aside. There is also a prayer to direct
Respondent Nos. 9 to 16 to stop unauthorized and illegal use
of demised property and to proceed departmentally against all
officers. The last prayer is to recover property tax on said
property at commercial rate with effect from 21.12.2006.
4. On 11.06.2013, this Court has issued notice only to
Respondent Nos. 1, 3, 4, 5, 7, 8, 9, 12, 13 and 16. With the
result, no notice has been issued to Respondent Nos. 2, 6, 10,
11, 14 & 17.
5. Considering the nature of controversy, we have
heard the matter finally by issuing Rule and making it
returnable forthwith with the consent of the parties i.e.
Respondent Nos. 1, 3, 4, 5, 7, 8, 9, 12, 13 and 16 only.
6. We have heard Shri Tushar Mandlekar, learned
counsel for the petitioner, Shri N.R. Patil, learned AGP for
respondent Nos. 1, 3 & 4, Shri S.M. Puranik, learned counsel
for respondent Nos. 5 & 7, Shri S.K. Mishra, learned Senior
Advocate with Shri K. Deogade, learned counsel for respondent
No. 8, Shri M.G. Bhangde, learned Senior Advocate with Shri
A.P. Kalmegh, learned counsel for respondent No. 9, Shri C.S.
Dharmadhikari, learned counsel for respondent No. 12, Shri
S.P. Dharmadhikari, learned Senior Advocate with Shri P.D.
Meghe, learned counsel for respondent No. 13 and Shri S.V.
Manohar, learned Senior Advocate with Shri D.V. Chauhan,
learned counsel for respondent No. 16.
7. Shri Mandlekar, learned counsel has submitted that
Respondent No. 9 - Maharashtra Rashtra Bhasha Sabha
(Vidarbha Region) (hereinafter referred to as Sabha), applied
to Respondent No. 8 on 24.12.1960 for allotment of a plot of
land on North Ambazari Road to act in furtherance of and to
advance its objects. Respondent No. 8 - Nagpur Improvement
Trust (NIT) on 29.12.1960 offered the plot on North Ambazari
road (hereinafter referred to as suit plot) ad measuring 1.14
Acres. On 23.02.1961, the terms and conditions of allotment
were also informed. As per terms and conditions, the plot
could have been used for construction of a building for Sabha
for carrying out its aims,objects, for purposes ancillary thereto
and for no other purpose. It can not be transferred or
otherwise disposed of. Sabha vide its communication dated
28.03.1961 accepted the allotment and terms & conditions. It
also deposited necessary amount. A lease deed was then
entered into between Respondent No. 8 - Trust and
Respondent No. 9 - Sabha, on 05.11.1962. In Schedule to this
lease deed, area of land is mentioned 44211 square feet. As
the construction was not commenced by Sabha within the
stipulated time of one year and building was not completed
within two years, Respondent No. 8 on 10.09.1963 served a
show cause notice on Sabha. On 16.09.1963, Sabha pointed
out its difficulties. Thereafter no action was taken by
Respondent No. 8 in the matter till 27.02.2002 i.e. the date up
to which Respondent No. 8 - NIT continued to be Planning
Authority for suit plot. On 13.09.1996, lease deed was
renewed for the period from 01.04.1991 up to 31.03.2021.
This is in the face of a communication dated 07.08.1968 by
Respondent No. 8 - Trust to Respondent No. 9 - Sabha, that
building constructed was being used for office purposes, which
form non confirming use.
8. Shri Mandlekar, learned counsel, submits that
Respondent No. 12 - Developer, on 19.12.1994 submitted a
Development proposal to Respondent No. 9 - Sabha, for
construction of Wing 'A' and Wing 'B' was envisaged. Wing B
was to cost Rs.3,87,00,000/- while Wing - A to be used
exclusively for Sabha was to cost Rs.76,00,000/-. On
08.08.1996, Respondent No. 9 - Sabha executed in favour of
Respondent No. 8 - NIT, an indemnity bond agreeing to pay
enhanced premium and ground rent or both in consideration of
lease deed beyond 30 years. It also agreed to demolish
construction done after renewal of lease, if so directed by the
State Government. Thus, the renewal on 13.09.1996 was
obtained in this background. Ultimately, through minor
Notification under Section 37(2), on 29.02.2004, user of this
suit plot was altered to commercial purpose on the condition
that Respondent No. 8 would charge additional premium for
extra Floor Space Index (FSI) becoming available as also
additional ground rent. FSI was increased from 1 to 2.5. Shri
Mandlekar, learned counsel submits that after giving indemnity
bond and some understanding with Respondent No. 12 -
Developer, the first application for change of user was moved
on 05.06.2000 and the Hon'ble State Minister immediately
called for necessary report with direction that it should be
submitted within 10 days.
9. A multistory complex with various amenities such
as Auditorium, Office hall, Library, Conference Room, Guest
Room and other independent units was to be developed for
Respondent No. 9. This was to be identified as Wing 'A' while
the shops and other commercial premises was to form part of
Wing 'B'. After the Hon'ble Minister called for Report within 10
days, Law Officer of Respondent No. 8 on 09.06.2000 pointed
out that a policy decision needed to be taken. He also pointed
out that Development Control Rules were to be finalized and
hence the question whether to permit transfers and sub-lease
be addressed to after finalizing and approving the same. NIT
on 17.08.2000 wrote to the Principal Secretary, Urban
Development Department of the State Government and
pointed out that no sub-division of demised plot was
permitted.
10. On 10.04.2001, Respondent No. 9 - Sabha directly
sent a communication to the Hon'ble Chief Minister, seeking
his intervention, pointing out lack of funds and financial
support to achieve its aims and objects. It also pointed out that
similar permission for commercial use was given in the case of
Vidarbha Sahitya Sangh, Nagpur, and Tilak Patrakar Bhawan,
Nagpur, in whose cases minor modifications were allowed.
This communication was sent by the President of Nagpur
Division of Respondent No. 9. Through another
communication of same date sent to the Hon'ble Chief
Minister, permission to sub-lease was also sought, pointing out
that NIT can charge necessary premium and give permission to
sub-lease. Shri Mandlekar, learned counsel, points out that this
request was already rejected by the NIT on 17.08.2000.
11. Our attention is also drawn to the fact that this plot
was shown as public utility plot in final development plan and
the effort was to obtain change of user to commercial
purposes. All this was being done when Respondent No. 12 -
Developer was already there. Agreement of development
between Sabha and Respondent No. 12 dated 21.02.1999
provided for construction of Wing 'A' with super built up area
of 15000 sq. ft. and Wing 'B' (Commercial complex) ad-
measuring 29211 square feet. The Wings were to remain
property of owner i.e. of Respondent No. 9 - Sabha and cost of
construction was to be collected in the form of non-refundable
deposit from prospective tenants by the Developer on behalf of
Sabha. Sabha agreed to execute and register lease in favour of
such persons nominated by the Developer. Clause 6 of this
agreement also contemplated that if FSI in excess of 1.25
became available, Sabha and Developer would mutually revise
the terms and conditions of this agreement to proportionately
share the additional benefits. Shri Mandlekar submits that the
Hon'ble Chief Minister was approached directly at the instance
of Respondent No. 12 and pressure was brought on him and
the local machinery to change the user in Development Plan
from public utility to commercial one.
12. As permission under Section 36 of the Bombay
Public Trust was required by Respondent No. 9, it had moved
the application for that purpose and on 11.08.1999, in-charge
Joint Charity Commissioner, Pune Region, Pune, while
allowing that application, granted permission to sub-lease the
property to Developer for the period up to 31.03.2021, subject
to getting permission from the NIT. The said authority also
directed completion of transaction within one year and filing of
necessary change report. The order was made subject to all
existing laws governing such transactions. The Income-tax
Authorities granted permission under Section 269(U1) of the
Income-Tax Act, 1961, for use of FSI but subject to approval of
the Charity Commissioner. The challenge to the order of Joint
Charity Commissioner was decided by High Court in Writ
Petition No. 2661 of 2001 on 18.10.2001 and the said order
was upheld. The Hon'ble Apex Court disposed Civil Appeal No.
4930 of 2004 on 03.08.2004. The Hon'ble Apex Court
modified the order slightly after taking note of the fact that the
construction of building was almost complete and Respondent
No. 9 made a statement that rent of rupee 1/- per square feet
per month was enhanced to Rs.2/- per square feet per month,
thereby augmenting yearly income by Rs.3,60,000/-. Shri
Mandlekar, learned counsel, submits that thus sub-lease was
permissible subject to clearance from NIT and that was already
rejected on 17.08.2000. It was never sought thereafter.
13. The communication dated 31.07.2001 sent by the
Town Planning Department of the State Government to the
Secretary, Urban Development Department, is pressed into
service to point out that only in certain exigencies an
additional FSI can be sanctioned to a public trust like
Respondent No. 9. FSI "one" or built up area of 2880 sq.
mtrs. was found sufficient. The proposed extent of commercial
area is also considered in this communication. The Town
Planning Department has noted that it constituted 80% of total
proposed built up area and hence most of the additional FSI,
was not to be used by Respondent No. 9 - Sabha - a public
trust. It, therefore, recommended not to sanction additional
FSI to Respondent No. 9 - Trust. It also opined that as per its
earlier recommendation given after inviting objection, North
Ambazari road was to be included in the list of roads on which
commercial activities were not allowed. The authority,
therefore, submitted that commercial user of said plot should
not have been allowed.
14. The communication dated 29.08.2002 sent by the
said department to the Principal Secretary, Urban Development
Department on same lines, letter dated 30.09.2002 sent by the
Executive Engineer to the Urban Development Department,
opposing change of user, letter dated 10.10.2002 sent by the
Nagpur Municipal Corporation to Urban Development
Department opposing change of user, are all pressed into
service to urge that for valid reasons, these authorities have
been opposing commercial user of said plot.
15. Suddenly on 16.07.2003, Nagpur Municipal
Corporation wrote to the Urban Development Department,
pointing out its Resolution No. 84 dated 27.12.2002 and
requested reconsideration of issue of change of user. On
25.08.2003, Town Planning Department objected to constant
efforts being made for change of user though said request was
already turned down. The Director of Town Planning
recommended appropriate disciplinary action against the
officers of Nagpur Improvement Trust and Nagpur Municipal
Corporation, who should have supervised erection of building
on suit plot. Shri Mandlekar, learned counsel, submits that on
28.04.2003, the State Government communicated to
Respondent No. 9 that such change of user was not
permissible.
16. Thereafter on 03.10.2003, the Chief Minister was
again approached for said work and requested to pay personal
attention. This communication was sent by the President of
Nagpur Unit. The National President also sent a personal letter
to the Hon'ble Chief Minister in his name on 08.10.2003 and
sought intervention. The then Chief Minister wrote back to the
National President intimating that necessary steps were being
taken. On 21.10.2003, Special Executive Officer in Town
Planning Department wrote to the Nagpur Municipal
Corporation and Nagpur Improvement Trust on the request of
Respondent No. 9 for change of user and sought immediate
information. On 19.12.2003, the President of Nagpur unit
again wrote to the Hon'ble Chief Minister on the subject of
sanctioning additional FSI and pointed out visits paid by the
Principal Secretary Shri Tiwari to said plot. Petitioner
highlights this background in which Notification dated
21.02.2004 came to be issued deleting "Public/ Semi Public
use" and including CTS No. 1643 in commercial use. On
condition that NIT would charge appropriate premium from
Respondent No. 9 for change of user as also for additional FSI.
Shri Mandlekar, learned counsel submits that all this has been
done mechanically and resolution of the Planning Authority i.e.
Nagpur Municipal Corporation dated 26.12.2002 proceeded
under the impression that suit plot belong to Respondent No.
9. Even the earlier two refusals were also ignored.
17.
He submits that one Shri S.R. Patil, had raised valid
objection to the entire process on 09.05.2003. On 07.05.2003,
Nagpur Municipal Corporation was approached by Respondent
No. 9 pointing out personal grievance of said Patil in the
matter and grudge entertained by him.
18. Shri Mandlekar, learned counsel submits that in
this process, deletion from reservation as ordered on
21.02.2004 under Section 37(2) is without jurisdiction and
shows non application of mind. The owner NIT never sought
said change of user and did not pass any resolution to support
it. The State Government did not consult NIT before issuing
the impugned notification dated 21.02.2004. The deletion of
reservation is dealt with under Section 50 of M.R.T.P. Act.
Similarly, change to commercial use is a major change. All this
necessitated adherence to procedure prescribed in Section 29
read with Section 31 of the M.R.T.P. Act. He has invited our
attention to Section 22-A thereof to explain what is substantial
change. By way of abundant precautions, he adds that as FSI
was increased by 150%, it was a case of major modification not
amenable to Section 37. Section 31 of the M.R.T.P. Act is
pressed into service by him to show that Section 31(6) is
binding on the Planning Authority, to urge that procedure
envisaged under Section 29 of the M.R.T.P. Act, ought to have
been followed for such changing of user to commercial
purposes. He seeks to rely upon the judgment in the case of
Housilal Balchand Shah vs. State of Maharashtra & Ors.,
reported at 2006 (3) Mh.L.J. 763.
19. North Ambazari road was supposed to be no
shopping frontage street. In this situation, as change of user
was already rejected on three occasions, review of that order
is/was not permissible in law. Section 37 of the M.R.T.P. Act
contemplates a satisfaction that change is necessary and that it
is of minor nature. Here, no such satisfaction was reached by
any of the Planning Authority or by the owner. No notice of
change was served upon the owner - NIT or neighbours of the
property and proper inquiry under Section 37(2) was never
held. The Town Planning Authorities were not effectively
consulted and no opportunity of hearing was extended. Thus,
with oblique motive, order of rejection of permission passed on
28.04.2003 was suddenly changed to approval on 21.02.2004
without any change in situation. This change of user,
according to the petitioner, is only to benefit few as mentioned
in Ground No. 20 of writ petition.
20. It is urged that valid assertions in ground 20 are
opposed by the respondents only to confer personal benefit on
Respondent No. 9 and other respondents like Developer. The
State Government did not look into original allotment letter
and terms and conditions thereof. Similarly, Land Disposal
Rules of NIT were ignored. Rules 6 and 7 provide for auction
of commercial land. Once the land is allotted under the
Development Control Rules, after change of user as in present
case, there has to be a fresh auction after suit plot was allowed
to be used commercially. Support is being taken from Rule
5(i), 5(2)(i) and Rule 6 for said purpose. The Resolution of
NIT dated 11.08.2005 allotting the land by charging additional
premium of Rs. 30 lakh is also questioned by him. It is
arbitrary, without following procedure and NIT or public has
suffered pecuniary loss in the process. Ground rent at 3% is,
therefore, also inadequate. All this has resulted in violation of
Rule 7(3) of Land Disposal Rules by NIT framed in 1983. The
exercise of calculations undertaken by NIT on 16.11.2005 is
also explained with contention that there value has been
determined as if land is being allotted in the year 1961. 1961
value of subject plot was Rs.20,266/- and it has been used as
base and compared to arrive at figure of the additional
amount charged i.e. of Rs.29,67,297/-. 2005 Ready reckoner
rate is Rs.23,000/- per square meter and hence value of suit
plot then was not less than Rs.23,60,85,672/-.
21. To demonstrate loss caused to public exchequer,
our attention is invited to lease deed dated 28.03.2007
executed by Respondent No. 9 in favour of M/s. SMG Hospitals
Private Limited (as lessee) with Respondent No. 12 -
Developer as confirming party. It is submitted that it is for
Rs.6.50 crores. Thus, by paying amount of Rs.30 lakh in public
exchequer, Respondent No. 9 could pocket Rs.6.20 crores
immediately. He further submits that 9 shops constructed on
suit plot were sold on 07.05.2002 for Rs.1,61,04,000/- each.
By pointing out dates of payment shown in this lease
document, it is contended that these payments were made
even before Respondent No. 8 gave land to respondent No. 9.
Respondent No. 12 sold its rights to M/s. SMG Hospitals
Private Limited (Respondent No. 13) and thereafter on
21.12.2006, lease deed has been executed by Respondent No.
8 - NIT in favour of Respondent No. 9 - Sabha. Shri
Mandlekar, learned counsel, submits that huge amounts which
changed hands even before these formalities were completed,
show nothing but influence of various persons in the matter.
22. None of the parties had any "No Objection
Certificate" from NIT at the time of registration of lease deed
by Respondent No. 9 in favour of other persons. Our attention
is also drawn to Resolution No. 29/988 dated 30.03.2002
whereby NIT permitted only 15% of plot area to be used for
commercial purposes after obtaining indemnity bond from
Respondent No. 9. The provisions of Rule 25 of Land Disposal
Rules are relied upon heavily to urge that these Rules prevail
over lease agreements. Our attention is also drawn to
provisions contained in N-7. In the face of express stipulation
in lease deed, prohibiting commercial user, all this was done
only because the Hon'ble Chief Minister was directly
approached. The use of the 1961 allotment date for
calculating additional premium is also assailed urging it to be
perverse by pointing out that when sale of 9 shops was
regularized on 31.03.2001, 1983 DCR was already in force.
When 1983 DCR was used, the fall back on 1961 allotment
date for calculating additional premium is malafide.
23. Our attention is also invited to the fact that when
Respondent No. 13 entered into an arrangement with
Respondent No. 16 on 05.10.2005, Respondent No. 13 itself
had no authority or title in the matter. It derived that
authority on 28.03.2007 when Respondent No. 12 leased out
the premises to it. Our attention is also invited to various
clauses in said lease deed and also to amended Management
Agreement dated 20.07.2007. It is contended that all this
shows abuse of power and authority to the detriment of public
by various respondents. NIT was not joined as party to any of
these documents.
24. On 26.03.2012, Nagpur Municipal Corporation
issued a notice for demolition and to discontinue changed user.
On 17.07.2013, Nagpur Municipal Corporation pointed out
that it had not issued any building completion certificate or
building occupancy certificate in respect of building
constructed on suit plot. On 19.06.2013, it rejected revised
building plan submitted by Respondent No. 9. On 24.06.2013,
Respondent No. 9 undertook to remove unauthorized
construction and declared that it had already commenced the
process. Thus, in the absence of Occupancy Certificate under
Section 280 of City of Nagpur Corporation Act, read with Rule
7.4 of Development Control Rules, building could not have
been put to use. The construction commencement certificate
was never renewed as per Rule 6.7. No previous sanction of
NIT was obtained as per Rule 7-A of the Land Disposal Rules
and 6.22 of Development Control Rules. The unauthorized
structure has not been removed till date. On 26.03.2007,
Respondent No. 9 withdrew its application dated 22.12.2006
for grant of NOC submitted to NIT and, therefore, on
14.08.2008, NIT sought information about subsequent
transactions relating to commercial complex entered into by
Respondent No. 9. Petitioner submits that hence, till
14.08.2008, directions contained in the order of Joint Charity
Commissioner were not complied with.
25. Reliance is placed upon the judgment of the
Hon'ble Apex Court in the case of State of Rajasthan & Ors.
vs. Basant Nahata, reported at AIR 2005 SC 3401, whereby
the Hon'ble Apex Court quashed Section like S. 22-A of the
Registration Act to show the approach to be adopted while
understanding the Land Disposal Rules & provisions
prescribing additional conditions. To substantiate his
submissions, Shri Mandlekar, learned counsel, has relied upon
number of cases and we find it appropriate to refer thereto
little later in the course of this judgment.
26. Shri Mishra, learned counsel, while opening the
arguments on behalf of the respondents, submitted that
Respondent No. 8 - NIT is owner of property but it has not
remained a Planning Authority after 27.02.2002. He has
invited attention to various prayer clauses to demonstrate that
there is no prayer to declare that on 11.08.2005, NIT has fixed
premium erroneously. He further submits that Development
Control Rules and Development Plan is binding on Respondent
No. 8. Clause M-7 of DCR permits 15% commercial user on
subject plot and accordingly the said development was allowed
and it is legal. He further states that user as Hospital is also as
per said Rule. The petitioner has not alleged violation of said
rule anywhere.
27. The land was allotted way back in the year 1961 as
per Land Disposal Rules, 1955. Clause 5 of said Rules
permitted concessional rate while Rule 7 permitted lease for 30
years or 90 years. There was a provision prescribing providing
additional lease money/ premium. These Rules were quashed
in 1982 and thereafter Development Control Rules,1983 have
came into force. These Rules deal with land held by NIT or
acquired by it. Renewal in 2006 is as per agreement between
the parties. Though 1955 Rules were quashed, lease granted
thereunder and right of renewal continued. As such, there
could not have been any fresh auction, therefore, 1983 Rules
could not have been attracted in this matter. He has taken us
through allotment on 29.12.1960 and lease deed, to show how
it permits sub-division only with permission of NIT and how it
also allows change in nature of user with previous permission.
He makes a statement that Respondent No. 9 has till date not
sub-divided the land. Hence, no NOC of the NIT was called for
and withdrawal of its request therefor by the Sabha has no
relevance. Renewal of lease in 1996 is as envisaged in original
lease deed after coming into force of 1983 Development
Control Rules.
28. Finality given to Development Plan under Section
31(6) of the M.R.T.P. Act, can be legally altered only when
earmarked user is changed via Section 37. NIT states that
concept of minor modification or modification of major/
substantial nature existed till 1994. Thereafter word "minor"
has been deleted from Section 37. The petitioner never
objected in the year 2000 when Development Plan for City of
Nagpur was under preparation. At that juncture, Rule M-7 was
in force. The Resolution of NIT dated 30.03.2002 is as per
DCR and MRTP Act. 1983 DCR applied to acquire lands or
lands vesting in NIT and deal with disposal of those lands.
Hence, it cannot be applied to earlier allotments. Therefore,
challenge to Resolution dated 30.03.2002 is bad. He seeks
dismissal of writ petition with heavy costs.
29.
Shri Mishra, learned counsel points out that
petition has been filed belatedly and there is no explanation for
it. He further submits that Respondent No. 8 - NIT was not
Planning Authority when modification under Section 37 was
done. There is no deletion of any reservation under Section 50
of the M.R.T.P. Act. He explains the exercise of calculation of
additional premium and ground rent undertaken on
11.08.2005 and submits that it has been rightly worked out
with reference to year 1961 as it remains base year or first
year of allotment.
30. As on 21.12.2006, new premium was worked out
and user of plot underwent change, new lease became
necessary. However, new lease deed does not extend the
period of lease as renewed in September 1996. There are no
allegations of any malice and no prayer to recover any loss or
damages from any individual. The land was allotted to Public
Trust i.e. Respondent No. 9 - Sabha as per law and changed
user is only ancillary in nature. Prayer clause 'A' in writ
petition is too vague to be appreciated or for being granted.
He concludes with submission that the petition is not filed in
public interest at all and be dismissed with exemplary costs.
31. Shri Puranik, learned counsel, on behalf of
Respondent No. 7 - NMC adopts the arguments of Shri S.K.
Mishra, learned counsel. He submits that Section 53 notice
dated 26.03.2012 was served upon Respondent No. 10 for
excess construction of 487.7 square meters. Thereafter notices
dated 19.06.2013 & 27.06.2016 have also been served for
removing balance unauthorized structure. Respondent No. 16
has recently filed a Civil Suit wherein status quo has been
ordered. Therefore, no action can be taken against excess
construction. He further harps on facts to urge that present PIL
has been filed belatedly and, therefore, should be dismissed
with heavy cost.
32. Shri Patil, learned AGP, relies upon the arguments
of Shri Mishra, learned Senior Advocate and Shri Puranik,
learned counsel. He submits that notification of change dated
21.02.2004 is issued after completing necessary formalities
and as per law. As powers under Section 37(2) of MRTP Act
are exercised, challenge to it in present PIL is unsustainable.
33.
Shri Dharmadhikari, learned Senior Advocate,
representing Respondent No. 13 submits that said respondent
is a lessee of super structure. The agreement for development
was entered into between Respondent No. 9 and Respondent
No. 12 on 21.02.1999 and before that there was public
advertisement inviting offers for development from various
contractors by Respondent No. 9. Permission under Section 36
of the Bombay Public Trust Act, 1950, was also granted after
completing necessary formalities. He heavily relies upon
observations of the Hon'ble Apex Court in its order dated
03.08.2004 to urge that construction was complete in 2004
itself. According to him, building constructed is a six storied
huge building and it houses a hospital. The petitioner who
resides in the vicinity could have very well seen the building
coming up and the hospital running therein since year 2007.
Thus, in 2004 itself, the petitioner could have approached the
Court.
34. The change of user on 21.02.2004 is also preceded
by proper public notice inviting objections issued by
Respondent No. 7. This notice was published on 06.02.2003
and 20.02.2003. He further submits that Respondent No. 16
has invested amount in excess of Rs.25 crores. The premium
was fixed on 11.08.2005 and there was Management
Agreement between Respondent No. 13 and Respondent No.
16 on 05.10.2005. As such, PIL filed on 06.05.2013 is more
than 14 years after the agreement for development or six years
after Respondent No. 16 commenced activities of its hospital.
The learned Senior Advocate reiterates that since 2007, full
fledged hospital is being run in the building.
35. Inviting attention to PIL, it is argued that it is
confined to Section 53 of the M.R.T.P. Act only. The petitioner
claimed that he learnt about illegalities on 26.03.2012 and
those illegalities are continuous in nature. These assertions
and explanation are apparently false and a petitioner claiming
to act in public interest, with due vigilance and diligence could
have taken steps immediately when he saw a huge building
being constructed. There is no explanation for delay and the
language employed is more apologetic than explanation for
delay. He seeks to rely upon the judgments in the case of
Delhi Development Authority vs. Rajendra Singh & Ors.,
reported at (2009) 8 SCC 582, paragraphs 49 to 54; R & M
Trust vs. Koramangala Residents Vigilance Group & Ors.,
reported at (2005) 3 SCC 91, paragraphs 34 & 35; State of
M.P. & Ors. vs. Nandlal Jaiswal & Ors., reported at (1986) 4
SCC 566, paragraph 24 and the judgment in Public Interest
Litigation No. 23 of 2013, particularly paragraph No. 17, to
demonstrate that delay in present matter is fatal.
36. He further points out that though the petitioner
had knowledge of similar treatment extended to Vidarbha
Sahitya Sangh or Tilak Patrakar Bhawan, he has not made
grievance about these buildings, the building of Respondent
No. 9, therefore, has been singled out. Thus Public Interest
Litigation is malafidely filed.
37. To show that development is in accordance with
law and proper and there is no benefit to any individual, he
strongly relies upon the proceedings under Section 36 of the
Bombay Public Trust Act, and orders passed thereunder in the
case of Sailesh Developers & Anr. vs. Joint Charity
Commissioner, Maharashtra & Ors., reported at 2007 (3)
Mh.L.J. 717. The status of Respondent No. 9 or its position
and work done by it for all these years is not in dispute. In this
situation, when the Hon'ble Apex Court has accepted the need
and development is found in the interest of Respondent No. 9,
Public Interest Litigation must fail. The learned Senior
Advocate submits that the deal with the developers is found
not unfair by the Hon'ble Apex Court.
38. The learned Counsel has invited our attention to
the arrangement arrived at between the parties in order to
demonstrate how it benefits Respondent No. 9 - Sabha. The
property continues to be property of Respondent No. 9 and
building structure is raised through deposits from tenants.
Agreement is fair and even after receipt of additional FSI, same
distribution ratio has been followed. Developer - Respondent
No. 12 gets about 6762 sq. mtrs of constructed area while
Sabha gets 2254 sq. mtrs. The Developer - builder got
approximately amount of Rs.6,50,00,000/- from this project
and roughly the rate works out to Rs. 1,000/- per sq. ft. The
rate is, therefore, also just and Respondent No. 9 - Sabha, as
per law undertook and completed the exercise to secure
financial independence.
39. Judgment in the case of Mihir Yadunath Thatte
vs. State of Maharashtra & Ors., reported at 2007 Supp. BCR
392, paragraphs 23 & 24, is pressed into service to urge that
power under Section 37 of the M.R.T.P. Act is legislative in
nature and, therefore, it can be resorted to as and when
deemed necessary. There is no question of review involved.
40. On 10.04.2001, letters were sent to the then
Hon'ble Chief Minister for change of user and intervention of
his office was sought only to invoke legislative powers under
Section 37. The State Government called for report on
24.05.2001. The Director of Town Planning opposed the
change on 31.07.2001. Even Town Planning Department
opposed it on 29.08.2002 and NIT also did not agree on
30.09.2002. On 10.10.2002, Nagpur Municipal Corporation
also opposed, pointing out that North Ambazari Road was
supposed to be no shopping frontage street and there was a
College as also a Deaf and Dumb School in the vicinity. On
28.04.2003, the State Government rejected the request of
Respondent No. 9. As such, there is no question of any
influence by any politician in the matter. In the meanwhile, on
26.12.2002, General Body of Nagpur Municipal Corporation
resolved in favour of change and hence the process as
envisaged under Section 37 started. Public advertisement
inviting objections were published in Marathi Newspaper
"Lokmat" and English daily "The Hitavada" on 06.02.2003.
Notification was published on 20.02.2003 and only one
Shantaram Patil objected and he was also heard on
09.05.2003. After fully complying with the procedure, on
16.07.2003 Nagpur Municipal Corporation forwarded the
proposal to the State. The Director of Town Planning opposed
the change on 25.08.2003 while on 24.09.2003, after
consulting Nagpur Improvement Trust, the proposal was
recommended. Respondent No. 9 thereafter sent another
letter to the Hon'ble Chief Minister through its local President
at Nagpur on 03.10.2003 and its National President wrote to
the Hon'ble Chief Minister on 08.10.2003. On 30.10.2003, the
Chief Minister sent suitable reply to the National President. On
21.10.2003, Government had called for "say" of NMC and NIT.
NMC submitted its reply on 01.11.2003 while NIT gave its no
objection on 07.10.2003. On 10.10.2003, the Deputy Director
of Town Planning also expressed his opinion. Thereafter, State
Government permitted change of user. Proper procedure is
followed and after looking into the entire material, the
decision has been reached. The change is not for individual
benefit but for enabling an institution with National repute to
survive more efficiently. It permits effective utilization of
property and in the absence of change of user, Respondent No.
9 could not have functioned properly. There is no misuse or
abuse of power. Letters sent by the Hon'ble Chief Minister do
not, in this situation, show any influence even of that office.
41. Shri Dharmadhikari argues that section 22-A of the
M.R.T.P. Act, as in force then, applied to only Draft
Development Plans and was/ is not relevant under Section 37
of the M.R.T.P. Act. Section 37 does not envisage only minor
modification and test therein is whether character of the
Development Plan undergoes change. There is no deletion as
contemplated under Section 50 of the M.R.T.P. Act, in present
matter and ingredients thereof are not satisfied. "Appropriate
Authority" there would have been NIT as defined in Section
2(3) of the M.R.T.P. Act. To show that there is no change in
character of plan because of permission of commercial
development granted only to one plot, he seeks to rely upon
the judgment in the case of Sangharsh Kruti Samiti, Nagpur
vs. State of Maharashtra & Ors., reported at 2007 (2)
Mh.L.J. 681, paragraphs 21 and 22. The judgment in the case
of Mihir Yadunath Thatte vs. State of Maharashtra & Ors.,
(supra) also reported at (2006) SCC On Line 1152, paragraphs
35, 36 & 38 is also relied upon for this purpose.
42. He further submits that an exercise of fixation of
premium performed on 11.08.2005 is in accordance with law
and the year 1961, has rightly been treated as relevant year.
The change of user does not put an end to lease but lessee only
gets additional FSI subject to its fulfilling additional
obligations. The additional FSI in relation to land already
leased out to it practically results in grant of more TDR and
additional FSI. Calculation, therefore, is rightly restricted to
this additional FSI. For that additional FSI, rate of Rs.48 to 50
per square feet has been used in the year 2005. It cannot be
said to be low or unfair. Plot has not been sub-divided and
there is no loss of revenue to any public body. Inviting
attention to terms and conditions of lease, he submits that
there is no sub-division, nature of demise does not undergo
any change. As such, there never was any bar on sub-lease or
transfer. The previous permission is required only in case of
sub-division of the plot. NIT had given No Objection
Certificate for executing sale deeds on 30.04.2002. Lease deed
has been executed in favour of Respondent No. 9 on
28.03.2007 and it is only about super structure. NMC has on
26.10.2007 also given occupancy certificate. He contends that
thus, there is no merit in the Public Interest Litigation and it
deserves to be dismissed.
43. Shri M.G. Bhangde, learned Senior Advocate on
behalf of Respondent No. 9 - Sabha has, in addition to
arguments advanced by other respondents, submitted that
third lease dated 21.12.2006 was and is uncalled for. The
period of second renewed lease deed was/is till 31.03.2021
and hence before expiry thereof, third lease as executed is
superfluous. According to him, at the most, execution of a
corrigenda or correction deed to second renewed lease could
have been insisted upon.
44. The modification in the Development Plan on
21.02.2004 is not a review and Planning Authority (NMC)
passed the resolution as envisaged under Section 37 of the
M.R.T.P. Act for the first time in December 2002. This
resolution dated 26.12.2002 was not before the State
Government when it rejected the request of NIT on
28.03.2003. On that date, NIT was not even the Planning
Authority. The resolution of NMC dated 26.12.2002 is about
several plots or lands and this resolution or consequential
procedure was never questioned by the petitioner. He,
therefore, does not have any locus to file this PIL. Support is
being taken from the judgment in the case of Delhi
Administration vs. Gurdip Singh Uban & Ors., reported at
(1999) 7 SCC 44, paragraph 8.
45. Unexplained delay and laches are also strongly
pressed into service. The judgment in the case of Printers
(Mysore) Ltd. vs. M.A. Rasheed & Ors., reported at (2004) 4
SCC 460 (paragraphs 1, 3 & 25) are relied upon for this
purpose. To explain what is reasonable period in exercise of
this jurisdiction, paragraphs 14 & 15 from the judgment of the
Hon'ble Apex Court in the case of Leelawanti & Ors. vs. State
of Maharashtra & Ors., reported at (2012) 1 SCC 66 are
relied upon.
46. Shri Patil, learned Assistant Government Pleader,
on behalf of Respondent Nos. 1, 3 & 4, with the leave of Court,
adopts the above arguments. He states that when State
Government initially rejected permission to change user,
exercise under Section 37 of the M.R.T.P. Act was not even
initiated.
47. Shri C.S. Dharmadhikari, learned counsel for
respondent No. 12 - Developer adopts the arguments of all
Advocates mentioned supra.
48. Shri S.V. Manohar, learned Senior Advocate on
behalf of Respondent No. 16, points out that Hospital of
Respondent No. 16 started functioning in the multistory
structure on said plot in 2007 itself openly and this was never
questioned by anybody. Respondent No. 9 - Sabha pointed
out such change of user permitted in relation to other sites on
North Ambazari Road itself. He contends that in this
background only prayer which can be looked into is
implementation of notice issued by NMC on 26.03.2012 and
for declaration that the Management Agreement dated
05.10.2005 is illegal. The affidavit of NMC is relied upon by
him to show that most of the alleged unauthorized
construction is already removed and only small part of about
486.770 sq. mtrs. is now remaining. In view of receipt of
notice from NMC on 27.06.2016, Respondent No. 6 has filed
Regular Civil Suit No. 762 of 2016 as advised. The documents
of present PIL are enclosed with it and Civil Court has granted
order of status quo on 22.07.2016. Thus, the disputed
questions pertaining to alleged unauthorized structure is now
pending before competent Civil Court. As instructed, he also
makes a statement that as FSI is in balance, the request has
been made to regularize this construction. Respondent No. 16
has spent almost an amount of Rs.29 crores on its hospital on
subject plot. He, therefore, states that in this situation, any
intervention in PIL would defeat public interest. The judgment
in the case of Bombay Environmental Action Group & Anr.
vs. State of Maharashtra & Ors., reported at 2001 (4) Mh.L.J.
260, paragraph 39, is relied upon by him to point out laches
and its effect in PIL. The judgment in the case of R & M Trust
vs. Koramangala Residents Vigilance Group & Ors., reported
at (2005) 3 SCC 93, paragraph 24 is relied upon by him.
49. In reply arguments, Shri Mandlekar, learned
counsel, states that PIL No. 8 of 2013 was filed earlier on
03.12.2012. Appreciating the need of extensive amendment
therein, this Court on 17.04.2013 granted liberty to file fresh
PIL. The petitioner had filed applications under Right to
Information Act (RTI) on 05.05.2011 and up to 31.08.2012 he
received the knowledge that Building Plan was rejected on
01.11.2012 and that NMC had issued demolition notice on
26.03.2012. The petitioner sent representations on
17.04.2011 and 14.07.2011. He also sent a representation to
the Hon'ble Chief Minister on 23.12.2011. PIL has been filed
within one year thereof.
50. On 17.07.2013, the petitioner got knowledge of
extent of illegal construction and removal of part of it is
admitted by the respondents. The absence of completion
certificate is also not in dispute. All these facts and even
knowledge of loss caused to public revenue surfaced only in
response to queries under RTI. He submits that challenge is to
change of user under Section 37 of the M.R.T.P. Act and also to
charging of very meager premium for additional FSI. These
challenges are interlinked.
51. He relies upon paragraph 13 in the case of M/s.
Dehri Rohtas Light Railway Company Limited vs. District Board,
Bhojpur & Ors., reported at (1992) 2 SCC 598, to urge that test
in such matter is whether illegality should be allowed to be
suffered. Paragraphs 17, 18 & 20 in Royal Orchid Hotels
Limited & Anr. vs. G. Jayaram Reddy & Ors., reported at (2011)
10 SCC 608,, are also relied upon for this purpose.
52. To point out collusion between Nagpur Municipal
Corporation and Respondent No. 16, he states that notice
dated 27.06.2016 has been issued almost after three years and
only to help Respondent No. 16. Its copy has not been
produced before this Court. He further submits that breaches
of lease deed are already pointed out and the same were not
cured on 20.03.2007 when lease deed was executed. No
sanction from the Chairman of Nagpur Improvement Trust was
obtained as contemplated by Rule 24(a)(b) of DCR Rules. He
invites attention to Land Disposal Rules, 1983, to urge that the
same do not apply.
53. Shri Mandlekar, learned counsel submits that
calculations performed while working out additional premium
are incorrect and stand that Land Disposal Rules of 1983 do
not apply, runs counter to the stand of NIT in other PIL or
Court Cases. Our attention is invited to an order in earlier writ
petition (page 483 of record) to show that there Rule 7(3) of
1983 Rules, has been applied. He further submits that
Respondent No. 9 - Sabha has surrendered old lease in lieu of
new lease on 16.12.2006. As new lease has come into force, it
is disposal of land and, therefore, public auction or then
premium determined as per market rate should have been the
guiding factor.
54.
He further states that if 1983 Rules cannot apply,
Appendix M-7 with 2000 DCR also cannot apply. Again
attention is invited to the stand of NIT in public interest
litigation filed by Dr. Bhalchandra Subhedar and a judgment
in the matter of Shriram Dharamshala. He contends that
thus, in this matter, due to obvious pressure, NIT is deviating
from its earlier stand. As this Court has already held in above
two Public Interest Litigations that Appendix M-7 did not
apply, respondents cannot expect a contrary view in present
matter. He further states that after 1972, neither NIT nor NMC
exercised their rights or took action for violations and tolerated
unlawful activities, though land was not allotted for
commercial purposes.
55. Inviting attention to the scheme of Section 37 of
the M.R.T.P. Act, he submits that there is no direction by the
State Government either to NIT or to NMC to effect any
modification. He attempts to distinguish the judgments relied
upon by Shri Dharmadhikari, learned counsel. He further
submits that apparent non-application of mind in resolution of
NMC dated 26.12.2013, has not been commented upon by any
of the respondents. He has relied upon the judgment of
Division Bench of this Court at Bombay in Writ Petition No.
369 of 2011 to submit that in such matters of change of user,
positive recommendation of the Director of Town Planning, is
must and in present case, the Director of Town Planning had
rejected the proposal on more than one occasion. Inviting
attention to the communication dated 21.10.2003 and previous
similar letter dated 13.08.2003 sent by the State and a reply
thereto dated 07.10.2003, he contends that though the State
called information regarding any of the lacunae, that
information was not supplied. Relying upon the judgment in
the case of Maria Margarida Sequeria Fernandes & Ors. vs.
Erasmo Jack De Sequeria, in Civil Appeal No. 2968 of 2012,
decided on 21.03.2012, he urges that truth has to prevail. He
adds that Respondent No. 9 is not at all propagating Hindi
language or any Charitable public purpose and land has been
used only for commercial exploitation. Such commercial
potential could have been used more effectively by NIT or by
State. He, therefore, states that in this matter, a direction to
hold inquiry through Central Bureau of Investigation (CBI) is
must. He further adds that inquiry must be against all the
respondents i.e. including those to whom this Court has not
issued notices.
56. We find that the first event of which entire
public could have gained knowledge is the proceedings
under Section 36 of the Bombay Public Trust Act, instituted by
respondent No. 9. This permission was granted by the Joint
Charity Commissioner on 11.08.1999. It was objected to by
one Shantaram Ramchandra Patil only. This person also filed
Writ Petition No.2661 of 2001 at the principal seat of this
Court. His writ petition was dismissed by the learned Single
Judge on 18.10.2001. The High Court in paragraph No.3
found that the proceedings under Section 36 were after
giving wide publicity in Newspapers in English and
Marathi language at Nagpur and also at Pune. The subject
property is situated at Nagpur, while respondent No. 9 has its
head office at Pune. Shantaram Ramchandra Patil appears to
be a resident of Pune. Through Newspapers advertisement
tenders were invited. Larsen and Company Private Limited;
Salpekar Developers Private Ltd., and Prajakta Constructions,
Nagpur submitted their offers. The offer of Prajakta
Constructions was found best. This Court has noted that
respondent No. 9 - Sabha was getting a structure worth Rs. 1.8
Crores and would also earn annually rent of Rs. 3.6 lakh.
Thus, respondent No. 9 - Sabha was getting an asset without
spending anything. This Court has also taken note of the fact
that the developer Prajakta Developers could have entered into
subject lease only after permission of the Nagpur Improvement
Trust.
57. This adjudication by the learned Single Judge
forms subject matter of Civil Appeal No. 4930 of 2004, which
was filed by Shantaram Ramchandra Patil before the Hon'ble
Apex Court. The Hon'ble Apex Court has noted that much
could have been said about the manner in which the Joint
Charity Commissioner disposed of the application under
Section 36 of the Bombay Public Trust Act, just before his
retirement, but then it was not sufficient to set at naught
sanction accorded by him, particularly when construction of
building was almost complete. The Hon'ble Apex Court
observed that it could not be demonstrated that respondent
No. 9 - Sabha, was not being benefited or the deal was patently
unfair. The developer before the Hon'ble Apex Court stated
that the rent of rupee 1/- per square feet agreed to be paid to
Sabha would be enhanced to Rs.2/- per square feet per month.
Thus, income of respondent No. 9 was augmented by about
3.60 lakh per year more, hence, only to that extent the Hon'ble
Apex Court on 03.08.2004 modified the order of the Joint
Charity Commissioner and disposed of the appeal. This order
has attained finality.
58. Scrutiny of the application for change of user or its
consideration by the State Government was also after due
public advertisement. This was the second opportunity to any
diligent citizen to learn about everything. For the purpose of
present discussion one can take note of the fact that
respondent No. 7 - Nagpur Municipal Corporation became
Planning Authority on 27.02.2002. Its General Body passed a
resolution on 26.12.2002 for converting the user. This
resolution No. 84 is cleared in the Special meeting and it is
expressly under Section 37 of the Maharashtra Regional and
Town Planning Act. The Commissioner of the Nagpur
Municipal Corporation was authorized to submit necessary
proposal and in it lands at Gandhibagh, Dharampeth, land of
I.G.M.C. as also subject land were put up to consider proposed
change of user. Though subject land i.e. city survey No. 1643
on North Ambazari Road is mentioned as belonging to
respondent No. 9, that by itself is not sufficient to vitiate the
unanimous resolution of the Nagpur Municipal Corporation.
The user change is permitted on 21.02.2004 by the State
Government after complying with the procedure under Section
37 of the M.R.T.P. Act. In this permission and notification
about it, fact that the subject land is given to respondent No. 9
- Sabha on lease by the Nagpur Improvement Trust is expressly
mentioned. It also records that necessary inquiries were made
and the Director of Town Planning was consulted. It is not in
dispute before us that the process is preceded by a public
advertisement inviting objections and only above mentioned
Shantaram Patil objected to the proposed conversion. He also
participated in the hearing. There was no other objection
about this change. Petitioner has not said anything about this
advertisement.
59. In the case of Mihir Yadunath Thatte vs. State of
Maharashtra & Ors., (supra), Division Bench of this Court has
looked into the scope and nature of powers exercised under
Section 37 of the M.R.T.P. Act. The change of user sought for
was for inclusion of part of Survey No. 86 in residential zone.
The land was located at Parvati in Pune and adjacent Survey
No. 87 was already converted into residential zone. Thus,
modification was to exclude that part of Survey No. 86 from
H.T.H.S. Zone. The Division Bench took note of the judgment
of the Hon'ble Apex Court in the case of Pune Municipal
Corporation vs. Promoters and Builders Association, reported at
(2004) 10 SCC 796, and noted that making of D.C.R. or
amendments thereof are legislative functions and hence
Section 37 needed to be viewed as repository of legislative
power. The legislature has not intended to provide for a public
hearing before according sanction. Delegated legislation
cannot be questioned for violating the principles of natural
justice except when the statute itself provided for compliance
therewith. The provision worded like "such inquiry as it may
consider necessary", by a subordinate legislating body is
generally an enabling provision to facilitate subordinate
legislating body to obtain relevant information from any source
and it is not intended to vest any right in anybody. In
paragraph 24, Division Bench finds that legislative nature of
that power and all functions of State Government under
Section 37 seemed irrefutable. Such change, however, cannot
lead to change in the character of the plan. On the basis of this
exposition by the Supreme Court, the Division Bench concludes
that delegated legislative power cannot be questioned for
violating the principles of natural justice and unless
unreasonableness or arbitrariness is pointed out, it is not open
for the Court to interfere in exercise of that power.
60. The Division Bench in this matter has in paragraph
35 of the judgment considered the designation of area as Hill
Top Hill Slope Zone (H.T.H.S. Zone) and then conversion of
part of Survey No. 86 i.e. area ad measuring 1.75 Hectares
from H.T.H.S. Zone to residential zone. It finds that long
before impugned change, 0.98 Hectares of land out of another
Survey Number of Parvati situated adjacent to Survey No. 86
was converted from H.T.H.S. Zone to residential zone in 1992.
Smaller area ad measuring 1.28 Hectares out of different
survey numbers from H.T.H.S. Zone was also converted in
residential zone, public and semi public zone during this
period. Total converted area worked out to hardly 0.03% out
of total area of 1273 Hectares. Though H.T.H.S. Zone by itself
is found to be distinguishing feature of Development Plan of
City of Pune, this minuscule change is found not to have
changed the character of the entire development plan. This
change did not emasculate and deface the basic characteristics
of that plan. It has, therefore, concluded that there was no
change of character of Development plan of City of Pune.
61. In paragraph 38, it has then looked into the case of
malafides as pleaded by the petitioner. It has noted that there
was rejection first and thereafter on second occasion, State
Government directed Pune Municipal Corporation to complete
the procedure for including that part of Survey No. 86 into
residential zone under Section 37(1) of the M.R.T.P. Act. Pune
Municipal Corporation complied with the procedure and on
26.04.2001 requested the State Government to issue necessary
sanction for such change. Thereafter, State Government on
04.04.2002 issued necessary orders and notified conversion
subject to the condition that H.T.H.S. portion of land should
not be cut. This notification was published in official gazette
on 25.04.2002. Ultimately, this Court has found that there was
nothing wrong in the procedure followed and upheld the
change. This precedent therefore shows that a change of user
can be brought about under S. 37 if it does not affect the
character of the development plan. A modification affecting
very small area of land out of total provision for a particular
purpose is found not affecting the said character.
62. The contentions about breach of lease conditions or
raising of unauthorized construction or not obtaining
occupancy certificate or completion certificate or not securing
NOC from NIT for subleasing and violation of S. 36 permission
thereby, may all pale into insignificance, if everything else is
found in order and no fraud on public revenue is detected.
The most serious concern in the matter is about change of
earmarked user from pubic utility to commercial one. To
succeed in challenge under S. 37 MRTP, at least a change in
character of the development plan ought to have been
demonstrated with necessary facts and figures. None of the
parties bothered to touch this aspect. We may here note what
is meant by this concept of character of a development plan.
The Division Bench of this Court considers the phrase
"character of the development plan" in S. 37 in D.B. Realty
Limited & Anr. Vs. State of Maharashtra through its Urban
Development Department & Ors., reported at 2015(6) LJS 72=
2015(3) Bom. C.R. 640. It finds that that Section 22A of the
MRTP Act defines modification of a substantial nature for the
purposes of Section 31 of the MRTP Act. This special definition
for the purposes of Section 31 of the MRTP Act cannot be
extended to Section 37(1AA) of the Act. Moreover, the words
defined in Section 22A of MRTP Act are 'modification of a
substantial nature' while Section 37(1AA) of MRTP Act uses
the words 'change the character of such Development Plan'.
The words 'change the character of the Development Plan' in
Section 37(1AA) of the MRTP Act mean much more than mere
modification. It would be a new and/or substituted
Development Plan. It relies upon the Apex Court judgment in
Bombay Dyeing v/s. Bombay Environmental Action Group,
reported at 2006 (4) LJ SOFT (SC) 21 = 2006 (3) SCC 434 at
paragraph 249 thereof, observed that the words 'change in the
character of plan' would necessarily mean alteration of the
entire plan in its totality." Thus, this Division Bench finds that
the test for the purposes of Section 37 of the MRTP Act is
whether the change resulted in the original Development Plan
losing its identity. This appears to be the correct approach even
in present In the case before it, the land which being used for
housing the US under the Development Plan continued to be
used for the same purpose for which it was originally approved
in the Development Plan. Thus there was no
replacing/substitution of the uses of the land as dedicated in
the Development Plan. On aspect of procedure, this Division
Bench mentions that though Section 37(1AA) of the MRTP Act
was not followed, but Section 37(1) of the MRTP Act was
followed, requiring the proposal to be initiated by the
Planning Authority. The requirement of inviting objections and
suggestions in both the modes was mandatory. In view of the
above, no prejudice is seen caused to the Petitioner D.B.
Realty Limited on account of not following that procedure
prescribed under Section 37 of the MRTP Act but adopting
Section 37(1AA) of the MRTP Act to issue the notification.
This appears to be the correct approach even in present PIL
before us.
63. Perusal of the Hon'ble Apex Court judgment in
Bombay Dyeing v/s. Bombay Environmental Action Group
reveals that there in para 243, the total area affected by the
change on an average is noted to be approximately 3.07% of
the total area of the wards and the mill lands occupy only 0.6%
of the entire land area of Bombay. In this backdrop, in
paragraph 245, Supreme Court observes--
"245. A development plan is an organic document
in the sense that periodic changes are contemplated
thereby. A development plan is required to be changed
every 20 years. Such changes are to be brought about
keeping in view the past experience of the planning
authority and the intended future development of the
town. While, therefore, interpreting the words "change in
the character of plan" the question would be as to
whether the change in the character is referable to
alteration of the entire plan. The change in the character
would, therefore, necessarily mean the change in the
basic feature thereof and the entire plan as a whole
wherefor the same must be read in totality. In this case,
the changes made do not brought about any significant
changes so as to come to a conclusion that its basic
features are altered."
The plots adjacent to subject plot are already holding
reputed old and big private educational institute. There is a
deaf & dumb school on one side while Plot on other side is
occupied by a reputed Junior & Senior College for Girls since
last few decades. Petitioner has not brought on record any
adverse social or environmental impact due to this conversion
and Hospital of respondent No. 16 which is functioning since
last 8 years. If north Ambazari Road was to be a no shopping
frontage street and, therefore, a special feature in the
development of the city, activities existing on said road and its
nature ought to have been placed on record to gather the
character of the development plan and impact of respondent
16 Hospital on that character. Definitely, the burden is to be
discharged by the petitioner. It is not his case also that this
hospital has any shops or such shops have opening on the
north Ambazari road. State Government has in discharge of its
legislative obligation found that character of the development
plan is not affected. In absence of necessary data, we can not
even embark upon the exercise to find out any such character
change.
ig & Anr. vs. State of Maharashtra & Ors.,
64. In Girish Vyas
reported at AIR 2012 SCW 3088 =2012(6) LJ SOFT (SC) 300,
the Hon'ble Apex Court has considered similar challenge.
Petitioner has placed strong reliance upon it. It is a Public
interest petition alleging assailing illegal shifting of reservation
for primary school and granting permission to develop that
plot for private residences Grievance was that Rules and
procedures were circumvented to benefit a close relative of the
Chief Minister. There is a specific finding that independent of
one's right either under the D.P. Plan or the T.P. Scheme, one
ought to have a permission for development granted by the
planning authority traceable to an appropriate provision of law
& in case before it there was none. While considering the
aspect of deletion of reservation, Hon'ble Apex Court holds that
under sub-section (1) of Section 50 of the MRTP Act, the
appropriate authority defined u/s 2(3) has to be satisfied that
the land is not required for the public purpose for which it is
reserved, "Appropriate authority" is a public authority on
whose behalf the land is designed for a public purpose in any
plan which it is authorised to acquire. In that case, the
acquiring body was Pune Municipal Corporation (PMC), it is
held that its general body needed to be satisfied that the land
was not required for the earmarked public purpose. Officers
of the Planning Authority as well as of the concerned
Government department were not in favour of deleting the
reservation but the Municipal Commissioner gave a favourable
report on the direction of the Minister of State. It is declared
that Commissioner's opinion could not have been treated as
the opinion of PMC. Hon'ble Apex Court has also noted wrong
roll played by said Municipal Commissioner as he acted under
political pressure. Here there are no allegations against the
municipal commissioner of NMC or the Chairman of NIT. On
the contrary, there is a unanimous resolution of general body
of NMC recommending the user change. In so far direction of
criminal investigation against Municipal Commissioner and
Minister of State issued by the High Court is concerned,
Hon'ble Apex Court noted that they acted only to oblige a
senior Minister i.e. the then Chief Minister without any
personal motive in matter. Hence both were given the benefit
of doubt. Hon'ble Apex Court points out that the directions
under S. 154 have to be normally general in character and
not for the benefit of any particular party. Before us, no one
has relied upon S. 154 of the MRTP Act.
65. In case of Girish Vyas (supra), thr Hon'ble Court
also observes that the Government and Municipal
Corporations are trustees of the citizens for the purposes of
retention of the plots meant for public amenities. Deletion or
modification should be resorted to only in the rarest of rare
case. Greed for making more money is leading to all sorts of
construction for housing in prime city areas usurping the lands
meant for public amenities wherever possible and in utter
disregard for the quality of life. It directs that any unauthorized
construction particularly on the lands meant for public
amenities must be removed forthwith. Ultimately, since the
direction was given by the State Government, Hon'ble Court
notes that it was necessary for it to act under Section 37 (1AA),
and to publish a notice in the Official Gazette to invite
objections and suggestions from the public at large, and also
from the persons affected by the proposed modification.
Thereafter the State Government was required to send the
proposal to PMC for its say and then it had to consult the
Director of Town Planning. The modification under Section
22A required following of the procedure under Section 29 of
the MRTP Act. Apart from a notice in the official gazette, a
notice should have been published in the local newspapers for
the information at the public at large, so that they could make
their suggestions or file objections thereto if they so deem it fit.
Supreme Court invites attention to Section 39 which
specifically directs that the planning authority shall vary the
T.P. scheme to the extent necessary by the proposal made in
the final Development Plan. Guidelines have been laid down
to avoid such kind of gross deletions in the future, and to see
that the provisions of the MRTP Act are strictly implemented in
tune with the spirit.
66. It is important to note that there was a specific plea
in paragraph 10 of Writ Petition No.4433 of 1998 to the effect
that "the fundamental and legal right of the citizens of Pune of
submitting objections and suggestions to any modification in
the Final Development Plan u/s 37 of the act has been
infringed", and that was solely on account of the developer
being a close relation of the then Chief Minister who was also
the Minister for Urban Development which controls the
appointments of a Municipal Commissioner to a Corporation
established under the B.P.M.C Act 1949." Hon'ble Supreme
Court also finds that the procedure under Section 29 of the
Act to publish a notice in local newspapers also, inviting
objections and suggestions within sixty days should have been
followed & not procedure under S. 37 dealing with the minor
modification.
67. This judgment in case of Girish Vyas & Anr. Vs. State
of Maharashtra & Ors., (supra), therefore, shows that due to
political influence, mandatory statutory provisions were given
a go bye and rights of citizens were defeated and powers were
abused. As such, there was no question of any delay or latches
in said case. In case before us, the procedure stipulated in S.
37 has been adhered to and all parties likely to be affected or
aggrieved, were also given the opportunity. If there was any
procedural impropriety, the same could have been pointed out
by the petitioner and perhaps corrected then & there. There is
no fraud played on statute & any diligent citizen could have
protested and approached the court of law to stop the
conversion or construction. This judgment, therefore, has no
application in present facts.
68. The fact that owner NIT never sought change of
user and did not pass any resolution to support it therefore
does not advance the case of the petitioner. Act of Nagpur
Municipal Corporation in proceeding on 26.12.2002 to
consider and resolve on conversion under the impression that
suit plot belonged to Respondent No. 9 Sabha, also does not
have any material impact on exercise of legislative powers.
Even its overlooking the earlier two refusals for such
conversion are not very relevant for that purpose. We have
already found above that mention that subject land i.e. city
survey No. 1643 on North Ambazari Road belonged to
respondent No. 9 Sabha by itself is not sufficient to vitiate the
unanimous resolution of the Nagpur Municipal Corporation.
The submission that deletion under S. 50 of MRTP is not at the
instance of the appropriate authority also becomes redundant
as that appropriate authority (respondent no. 8 NIT) never
opposed the change of user after 21.02.2004 & the deletion is
consequential to the legislative exercise u/S. 37 of MRTP Act.
Moreover, the subject land was not reserved or earmarked for
NIT & hence, it can not become appropriate authority for S. 50
and that provision has no application here.
69. This brings us to the consideration of challenges in
PIL. The preliminary objection of the respondents on account
of delay and latches on the part of petitioner calls for
consideration here. We find that alleged breaches of lease
conditions by the respondent 9 Sabha prior to renewal of lease
deed in 1996 (for period from 1991 to 2021) are not material
at this point of time as the same are not continuing now.
Hence, violations after 1996 can be looked into, if the
challenge thereto is not barred. The illegalities recent in
origin or of such a nature that they would not have come to
light without some extra effort, may call for separate
consideration. It will be apt to briefly narrate the alleged
illegalities or the irregularities here to facilitate the application
of mind.
A. Change of User on 21.02.2004 & use of S. 37(2) of
the. Maharashtra Regional & Town Planning Act, 1965. P.U.
Plot converted to commercial user & Hospital is running on it.
There was no such proposal by NIT the then planning authority
which happened to be also the owner of subject plot. It was
also opposed by NIT on 30.09.2000. It was earlier opposed by
the Director of town planning & ADTP on 31.07.2001. Town
Planning department also recommended rejection on
29.8.2002. NMC had also opposed it on 10.10.2002.
Resolution dated 26.12.2002 of the later planning authority
NMC is mechanical & without application of mind qua the
ingredients of S. 37 i.e. "character of the development plan".
NMC also did not verify the facts and presumed Sabha to be
the owner of subject land. This course was followed and all
defects crept in and tolerated due to political influence. Efforts
were made to defeat MRTP Act as development agreement
dated 21.02 1999 with builder entered already existed. on
19.12.1994 said Respondent 12 developer had also given
estimate for the development. Petitioner states that State
Government had rejected change on 28.04.2003 and by the
impugned action this was "reviewed" to "yes" on 21.02.2004.
State Government does not get power to review under Section
37 of MRTP Act. In any case, the State ought to have extended
an opportunity and a proper notice therefor to land owner
NIT. We have already dealt with part of these challenges
above and negated it. We gave also concluded that there is no
error in decision making process which is legislative in nature.
Question to be pondered over is whether this challenge is time
barred.
B. Petitioner also asserts need of fresh advertizement
and auction or allotment after the impugned change of user.
The potential of the property itself increases due to change of
user and the nature or type of the construction allowed on it.
Due to these drastic modifications, earlier lease must lapses or
deemed to be lapsed. As the new DCR as also Art. 14 are
attracted, these provisions warranted a new advertizement and
public auction.
C. In any case after new lease in 2006, new premium
and ground rent is not worked out as per Development Control
Rules (DCR) of 1983 but as per 1955 Rules which were
quashed in 1982 and hence not available. In 2005-06, it was
not legal to resort to quashed Rules & 1983 DCR with the
market rate/ ready reckoner ought to have been adopted. NIT
itself has urged that DCR is binding on even NMC.
D. Petitioner also points out violation of permission
granted under S. 36 of the Maharashtra Public Trust Act. Joint
Charity Commissioner has on 11.08.1999 permitted sublease
till 31.03.2001 only. NIT has on 17.8.2000 rejected sublease &
hence all subleases or transactions thereafter are bad in law.
No objection under Section 269U of the Income Tax Act for
transfer of FSI only is also dated 30.06.1999. As there is no
permission of the NIT to any sub-lease, construction of two
wings A & B & sublease only of superstructure in favour of
nominee of the developers also amounts to subdivision of plot.
This has resulted in violation of the Lease by respondent 9
Sabha.
E. Respondent No. 9 did not develop within time. It
also put illegal and unauthorized construction. Thus it
breached the terms of lease in its favour and that lease stood
terminated. Still no action was taken either by the NIT or
Nagpur Municipal Corporation (NMC). One notice by the NMC
after filing of this writ petition and one in June,2016 are only
to facilitate filing of the RCS by respondent 16 M/s Wockhardt
Hospitals.
It is not in dispute that this is a PIL and a non-
adversarial litigation. Nobody has averred that Petitioner has
any oblique motive or he approached this Court with any
ulterior purpose. We find that interest of public also obliges
us to appreciate following points as they also arise here--
F. Whether NIT has knowledge of the terms and
conditions of the agreements or documents executed or
registered in favour of the occupants of the commercial shops
or management agreement dated 05.10.2005 or amended
agreement dated 20.07.2007 through which Respondent No.
16 - M/s. Wockhardt Hospitals Pvt. Ltd. ? What is the effect of
withdrawal of its application dated 22.12.2006 submitted to
NIT for grant of NOC by the respondent No. 9 Sabha on
26.03.2007? On 14.08.2008, NIT sought information about
subsequent transactions relating to commercial complex
entered into by Respondent No. 9, but then there is no further
action.
G.
Whether any private concern or individuals earned
huge profits at the cost of public ?
H. Whether provisions of Rule 25 of Land Disposal
Rules prevail over sub-leases or agreements or arrangements
between the Respondent No. 9 Sabha and actual occupants ?
I. Whether said Rule 25 can be applied even now?
J. How the additional income becoming available is
being used or used by the respondent No. 9 Sabha? Has it
increased sphere of its or frequency of its activities?
K. Whether the Budget and accounts of Respondent
No. 9 support its public charitable purpose ?
70. Whether any of these challenges can be treated as
continuous cause in the interest of general public is also a
moot question. The relevance of concept of delay, its impact
on public cause and what should be the reasonable period to
raise above challenges can be comprehended with the
assistance of the following judgments.
In DDA v. Rajendra Singh, (supra), Hon'ble Apex Court
lays down that -
"49. Now, let us consider whether the writ petitions filed
in the High Court in the year 2007 are justifiable and
ought to have been dismissed on the ground of
delay/latches. Though an objection was raised by all the
official respondents before the High Court about the
inordinate delay in filing the writ petitions by the
petitioners, the said aspect was not either adverted to or
considered by the Division Bench.
50. We have already referred to the fact that the site in
question was changed to "public and semi-public" way
back on 21-9-1999. Before reclassifying the site, DDA and
the authorities concerned issued public notice calling for
objections/suggestions. The particulars furnished by the
official bodies clearly show that after getting the
suggestions from the public change of land use for the site
falling in Zone O was changed on 21-9-1999 from
"agricultural and water body" to "public and semi-public"
purpose. Apart from this, the decision of hosting the
Commonwealth Games at Commonwealth Games Village
site was taken in 2003. The Department also issued a
global tender process for public-private partnership
("PPP") participation in the residential portion of the
Commonwealth Games Project which was floated in
December 2006 and was completed in June 2007.
51. Apart from these materials, it was also highlighted
before the High Court as well as before this Court to the
effect that environmental clearance was granted on 14-12-
2006 permitting permanent structures on the site after
taking into consideration that the MoEF had stated "since
environmental significance and public open space amenity
of the river flood plain should be recognized, it was urged
that the authorities concerned (DDA) that an extension of
similar development in the area between Yamuna and its
flood protection bunds must not be proposed without due
environmental planning and prior environmental
clearance". It was highlighted that in the light of the
suggestions of Ministry of Environment and Forests,
studies were carried out and after completion of such
studies permanent structures were permitted to be
constructed on the site in April 2007. Unfortunately, the
High Court has lost sight with regard to these material
aspects.
52. In Narmada Bachao Andolan v. Union of India -
(2000) 10 SCC 664 para 229, this Court has held that PIL
should be thrown out at the threshold if it is challenged
after the commencement of execution of the project. It
was also held that no relief should be given to persons
who approach the Court without reasonable explanation
under Articles 226 and 32 after inordinate delay.
53. We reiterate that the delay rules apply to PILs also
and if there is no proper explanation for the delay, PILs
are liable to be summarily dismissed on account of delay.
In the case on hand, it is not in dispute that both the
petitioners though claiming that they are very much
conversant with environment and ecology, approached the
High Court only in the middle of 2007, hence on the
ground of delay and laches, the writ petitions were liable
to be dismissed."
In Printers (Mysore) Ltd. v. M.A. Rasheed, (supra),
in 1988, a public interest litigation was filed by the first
respondent herein, inter alia, on the ground that the impugned
alienation dated 19.06.1985 was against public policy and,
thus, illegal and void having regard to the fact that neither was
any public auction held therefor nor was any tender called for;
nor was any public advertisement for sale of the said land
issued. In paragraph 25 Hon'ble Apex Court states -- :
"25. Furthermore, the writ petition should not have been
entertained keeping in view the fact that it was filed about
three years after making of the allotment and execution of
the deed of sale. The High Court should have dismissed the
writ petition on the ground of delay and laches on the part
of the first respondent. The Division Bench of the High Court
also does not appear to have considered the plea taken by
the appellant herein to the effect that the first respondent
had been set up by certain interested persons. In a public
interest litigation, the court should, when such a plea is
raised, determine the same."
Hon'ble Apex Court in Leelawanti v. State of
Haryana, (supra), rely upon State of M.P. v. Bhailal
Bhai,
reported at AIR 1964 SC 1006 where a Constitution Bench of
Supreme Court held that even though no period of limitation is
prescribed for filing a petition under Article 226 of the
Constitution, the High Court can non-suit the petitioner who is
guilty of latches. The Constitution Bench also observed that if
the delay is more than the period prescribed for filing a suit
then the same would ordinarily be treated as unreasonable and
the High Court will be fully justified in using discretion and
denying relief to the petitioner under Art. 226 unless cogent
explanation is offered for the delay.
While holding that PILs should be sparingly
entertained and where public at large was to suffer, in R & M
Trust v. Koramangala Residents Vigilance Group, reported at
(2005) 3 SCC 91, Hon'ble Supreme Court observes:
"34. There is no doubt that delay is a very important factor
while exercising extraordinary jurisdiction under Article 226
of the Constitution. We cannot disturb the third-party
interest created on account of delay. Even otherwise also
why should the Court come to the rescue of a person who is
not vigilant of his rights?
35. We are of the opinion that delay in this case is equally
fatal, the construction already started by the appellant in
1987 and building had come up to three floors. Thereafter it
was stopped in 1988 and in March 1991 it resumed after
permission was granted. The writ petition was filed in
November 1991 meanwhile construction was almost
complete. Therefore, delay was fatal in the present case and
learned Single Judge rightly held it to be so. It was also
brought to our notice that 46 multistory buildings have
come up in this area. Learned counsel has produced
photographs to show that buildings more than three and
four floors have been constructed in and around this area."
In Esha Ekta Apartments Coop. Housing Society Ltd. v.
Municipal Corpn. of Mumbai, reported at (2013) 5 SCC 357,
Apex Court holds that the petitioners in the transferred case
failed to make out a case for directing the respondents to
regularise the construction made in violation of the sanctioned
plan. Rather, the ratio of the judgments and, in particular,
Royal Paradise Hotel (P) Ltd. v. State of Haryana, reported at
(2006) 7 SCC 597, was clearly attracted. It reiterates that no
authority administering municipal laws and other similar laws
can encourage violation of the sanctioned plan. The courts are
also expected to refrain from exercising equitable jurisdiction
for regularisation of illegal and unauthorized constructions else
it would encourage violators of the planning laws and destroy
the very idea and concept of planned development of urban as
well as rural areas. This judgment does not contain any
discussion on aspect of delay and laches.
71. We have the benefit of about 40 cases cited at the
bar by the learned Counsel for parties in this exercise, and
with thanks & respect, we wish to place it on record that the
mention of the above precedents is sufficient for present
adjudication. Copies of all these judgments are available on
record. The concept of minor modification has been removed
after 1994 amendment to S. 37 of MRTP Act and all
modifications, whether substantial or otherwise are possible in
the development plan if the same does not prejudice its
character. Hence, case law having bearing on the nature of
modification is not relevant here.
72. The judgments noted supra by us show that if the
petitioner could have with normal prudence comprehended the
illegality or then, taken steps to prevent it, he can not be
presumed to be a diligent litigant. If there are any public
advertisements or notifications or an opportunity to raise the
objections, as a diligent citizen, he must have taken objection
to it. He can not attempt to raise those objections open at that
juncture at later point of time, after the things have proceeded
further or irreversible. Having not availed the opportunity to
stop the proposed change or denied a chance to those
undertaking it to make amends at the threshold, petitioner can
not be allowed to spring a surprise for anybody. This principle
will have to be followed more stringently if third party interests
are created and are being affected because of his inaction.
However, there may be few factors which may not be
perceived unless the files of concerned department are
perused. Not obtaining NOC for subleasing or occupancy
certificate, improper utilization of the funds or determination
of premium or ground rent etc. may be few of them. If the
knowledge of these factors is received later and grievance
regarding any public injury is sustainable on its basis, this
Court will be obliged to order rectification therein to the extent
possible without displacing the third party interests.
73. Development agreement dated 21.02 1999 with
builder, previous estimate given on 19.12.1994 by said
Respondent 12 developer about wing A & wing B all could
have been learnt by the petitioner before the permission under
S. 36 of Maharashtra Public Trust Act was granted to the
Sabha. Nature of transaction between the developers & Sabha
could have been scrutinized by him had he seen the clearance
given by the Income Tax Department. He could have also
opposed the modification in development plan by objecting to
the public notices. Illegalities or the irregularities urged by the
petitioner noted by us as (A), (B), (D) & (E) supra are noting
but fall out of the actions completed as a sequel of the public
processes. When the construction started & was nearing
completion in 2004, he could have raised the objection and
stopped it. He permitted the hospital to come up & start
functioning in 2007. He has woken up only in 2013. His RTI
efforts started in 2011 only. We therefore find that contention
about need of fresh allotment process & fresh lease as also
grievance about not determining the additional premium or
ground rent as per law can only be looked into. These issues
which deserve to be looked into are (F) to (K) in paragraph 69
above.
74. In public inquiry under S. 36 of the BPT Act while
permitting the Respondent 9 Sabha to develop the plot and to
sublease it. This inquiry is after due public notice. This
application u/S 36 is preferred after public advertisement
inviting offers for development & the design to develop the
plot commercially is apparent in it. One S.R. Patil had then
acted with due diligence & objected to the permission granted
under S. 36 not only in High Court but also before the Hon'ble
Apex Court. Petitioner also could have been aware of these
events had he shown due diligence. 9 shop blocks were
constructed and sold on 07.05/2002 by Sabha. This also could
not have escaped the attention of the petitioner. Change of
user U/S 37 of the MRTP Act is after due public notice inviting
the objections by the NMC (respondent 7) and this was in the
year 2003. Said S.R. Patil only objected and opposed that
change. The change of user on 21/02/2004 was also not a
clandestine affair. Hospital of respondent No. 16 started
functioning in 2006-2007 itself on suit plot and petitioner
could have seen it. He ought to have shown his inquisitive
nature and vigilance even then. In any case Petitioner claiming
to be vigilant citizen and residing in vicinity, ought to have
seen a huge building coming up on public utility plot and
objected to it. In its order, Hon'ble Apex Court in 2004, has
noted that this building was almost complete. Petitioner could
have made inquiries at that juncture and gathered information.
Petitioner has not explained why he could not raise voice on
any of these occasions. This omission or inability militates with
his stature as a diligent litigant propounding a public cause in
such litigation. Obviously, this delay or latches can not be
condoned. Had he acted with due vigilance, he could have
attempted to stop change of user of subject plot and
construction upon it. He could have also prohibited creation of
third party interest and saved things from becoming
irreversible. That way he would have served public in more
better manner. As per the development agreement, the
respondent 12 developer was to recover the construction cost
from the tenants seeking the blocks or shops as non-refundable
deposits. Thus these tenants who have given the deposit will
suffer if the reliefs as sought are given to the petitioner,
condoning his lapse. Moreover the activity being carried on on
suit plot is a Hospital and not a shop or any commercial office
or blocks where different types of the businesses function and
hence, people with varying background visit the premises.
Hospital is a specialized activity where patients only visit,
needing peculiar facilities and its raising requires huge amount.
Once erected, it can not be put to any other use, otherwise the
whole infrastructure will be a wastage. It is definitely catering
to needy people and if We do not find any thing wrong in
change of user, and, therefore with the commercial
exploitation of plot is as per MRTP Act, then the
discontinuation of Hospital would result in loss to its owners
and inconvenience to the general patients. When the situation
has already become irreversible, the larger interest has to
prevail. The larger interest is to see that the Hospital continues
on suit plot. The petitioner had filed applications under Right
to Information Act (RTI) as late as on 05.05.2011 and up to
31.08.2012 he received the knowledge that Building Plan was
rejected on 01.11.2012 and that NMC had issued demolition
notice on 26.03.2012. The petitioner sent representations on
17.04.2011 and 14.07.2011. He also sent a representation to
the Hon'ble Chief Minister on 23.12.2011. PIL has been filed
within one year thereof.
75. There is one event which may not have come to the
knowledge of the petitioner immediately. On 16/04/2005, the
revised premium and ground rent has been determined by the
respondent 8 NIT. It surfaced only during inquiries by him. It
is regarding assessment of additional premium after the
change of user for more FSI becoming available and ground
rent accordingly. Though the user change is on 21/02/2004
and additional premium as also ground rent was to be worked
out thereafter, it has been calculated with reference to year in
1961 when the suit plot first leased out. But then petitioner
could have also learnt had he cared about the consequences
and development. However, we can not overlook the loss
sustained by the public revenue even if it is brought before the
Court by one who is not diligent. None of the respondents have
alleged any malice or dishonest intention and complained of
victimization at hands of petitioner. Loss of public revenue not
only to a local body like NIT but also to respondent 9 Sabha to
whom the suit plot came to be allotted on concessional basis.
Can such beneficiaries or then, at their cost, the private
builders/developers can earn? Whether public properties can
be exploited for the personal gains, is the cardinal question. If
the respondent 9 Sabha does not qualify as a State under Art.
12 of the Constitution Of India, it is apparent that it can not
escape the mandate of Art. 14. Respondents have not pleaded
any special status enabling it to claim an exceptional
treatment. Though the other challenges in this PIL may be
eclipsed due to latches or delay, the loss to public revenue
which has been caused while determining the additional
premium or ground rent on 16/04/2005 could not have been
imagined by anybody. This aspect, therefore, only needs to be
examined as per law in this PIL.
76. The defence of the respondents in the matter of
computation of additional premium or ground rent is that they
have used initial year of grant of lease as base year. NIT
however has also pointed out how it appendix M-7 is extended
by it to the respondent 9 Sabha. Respondents rely upon Rule
14.1 of DCR, 2000 to justify the construction of 9 shop blocks
on subject plot. Said Regulations are sanctioned by the State
Government under S. 31(1) of MRTP Act. Said rule allows
various uses of buildings, occupancies and premises in various
zones as given in Appendix M. Those uses can be modified by
the Authority with the approval of the Director of Town
Planning. It is not in dispute that in present matter we are
concerned with Appendix M-7. Appendix M-7 lists uses
permissible in public/semi-public zones. Schools, Colleges,
Hostel for the students, Essential staff quarters are allowed.
Similarly, Hospital, Dispensary, Maternity Homes, Health
Centers, Complex for such uses, Dharmashala for use by the
visitors to patients, Essential staff quarters, Veterinary hospital,
Auditorium, Exhibition hall, Gallery are also permitted.
Mangal Karyalaya and Community Halls are also included in it.
Besides this, if subject plot is in excess of 4000 Sq. Mtrs., 15%
of the area can be used for commercial purposes. These
purposes can be Convenient shopping, bank's branch, small
hotel etc. Income derived from such user is to be used for the
purpose or object for which the subject plot is allotted. Before
2000 DCR, with effect from 18.05.1983, 1983 DCR was in
force. As per Rule 7, the premium of land disposed of is to be
the bid of the highest bid in auction or bid. Procedure
stipulated therein envisages a fair market premium for it. Even
when the land is disposed of at predecided premium, the
Committee of Chairman of NIT, Collector of the City and
Deputy Director of Town Planning have to determine it after
considering the sale of similar or similarly situated lands in the
vicinity of subject land, in immediately preceding year. The
premium can not be less than the expenditure incurred for
acquisition and development of such land. 1955 Rules have
been quashed by this Court obviously as violating the
provisions of Art. 14 of the Constitution of India. That
judgment is not made available by any of the parties. However,
when the respondent 9 Sabha is not claiming any privilege,
allotment to it in 1960-1961 without following any transparent
process for allotment needed to be rectified to the extent
possible when revising the premium.
77. Whether conversion of user from public/ semi-
public utilization to commercial purpose and additional FSI
consequentially resulting itself warrants a process of re-auction
now must be looked into. No term either in initial lease deed of
1961 or then later renewed lease upto 31.03.2021 is pressed
into service to demonstrate this result. Similarly no legal
provisions in support are also brought to our notice. MRTP Act
or the DCR permit change of user and hence, such change does
not ipso facto result in determination of interest of holder
therein. Lease granted as per law is thereafter a matter in
realm of contract and the bilateral agreed terms can be
superimposed only statutorily or modified bilaterally. Grant of
land to respondent 9 in 1961, renewed lease for period from
1961 to 2021 are beyond the legal scrutiny in this PIL. We find
the change of user is as per S. 37 of MRTP Act and hence,
only question is whether any new lease deed was necessitated
after such change. The sanction to such change in 2004 is
subject to charging additional premium for more FSI becoming
available to respondent 9 Sabha and proportionate hike in
ground rent. This exercise and stipulation is also indisputable
in this litigation. Accordingly, NIT has worked out the
additional FSI and ground rent. Legality of this exercise is
being evaluated little later in this judgment. Bit parties to the
lease accepted that computation and hence, execution of
appropriate document incorporating it became essential.
Parties decided to enter into new lease deed providing for
those terms and conditions. They could have also executed a
corrigenda or an amendment deed. Unless a legal provision
prescribing a particular course of action is pointed out, this
exercise jointly agreed and taken, can not be objected to. User
of subject plot was getting changed, commercial user was in
offing and hence, terms suitable to allow exploitation as per
the sanction order dated 21.02.2004 as per law while
safeguarding the interest of respondent 8 NIT needed to be
added. Accordingly, after working out additional premium and
ground rent, the parties have entered into a new lease deed for
the remainder of the renewed term i.e. upto 31.03.2021. Thus,
for all practical purposes change in development potential of
the subject plot for future has been recognized and provided
for. Respondent 9 Sabha continues to hold very same plot for
very same term but with added benefits and obligations.
Hence, petitioner has failed to substantiate the contention that
fresh advertisement or fresh auction of the subject plot was
essential after 21.02.2004. In any case, this contention was
open and could have been raised within reasonable time after
the change of user or after the design to construct a huge
building on subject plot became obvious to everybody. We
therefore find no merit in the contention and also find it not
open for judicial scrutiny due to laches and delay on part of the
petitioners.
78. When the design to have a multistory building on
PU or semi-public utility land was apparent to everybody, it
follows that for a diligent mind it was a cause to inquire.
Petitioners could have shown their diligence by submitting
representations and knocking the doors of Courts, if the same
were found not effective. Petitioner could have stopped the
development, protected public property, public money as also
third parties by taking timely steps. He can not be permitted to
jeopardize the settled interests of third parties when he did
nothing to stop the affairs from becoming irreversible.
Challenges that building was occupied without securing proper
occupancy certificate or completion certificate, its additional
premium or ground rent is fixed on lower side illegally or
malafidely could have surfaced had he been vigilant and made
inquiries in 2004 or 2006. He has become active only in 2011
and then approached this Court in 2013. He has confined his
challenge to only one development on North Ambazari road.
Thus for his delayed waking up, interests of third innocent
parties settled as per law can not be disturbed. Even
grievance in relation to the unauthorized building construction
or its extent and unwillingness of the respondent No. 7 - NMC
to proceed against it, is not of a nature warranting an order
of its demolition in extraordinary jurisdiction. Though, we find
substance in contention of Shri Mandlekar, learned counsel
that notice for its removal is issued on 27.06.2016 by NMC to
save its face here in the PIL, the issue is now pending in civil
suit. We feel that interest of justice can be met with by
expediting it.
79. However, if there are any highhanded or illegal deeds
by such interest holders or third parties, or the facts on record
demonstrate their participation in impugned action and if the
same has resulted in loss of property or revenue to public
bodies , the perspective has to be different. The parties to
fraud on public can not in such circumstances plead bar of
laches or delay. It appears that respondent no. 16 Hospital now
in possession of "Wing B" , may not have been in picture either
on 21.02.2004 or thereafter till it entered into an agreement of
management with the developers. But the role of respondent
No. 8 - NIT, its officers, office bearers, position of respondent
No. 9 - Sabha, its officers, office bearers and position of other
respondent developers , its officers, office bearers, in finalizing
the terms and conditions of new lease or additional premium
or ground rent needs to be investigated. If we hold that this
computation is on lower side or due care caution was not taken
while settling the new terms after the change of user, then
these authorities or any other government department or
officer found at fault must be dealt with as per law. If the
errors or damage to public interest can be cured without
prejudicing the settled interest of innocent third parties, those
remedial measures can be adopted in future. The fixation of
additional premium or ground rent on lower side, not
obtaining NOC for creating any interest of third party, no or
improper utilization of the funds by respondent 9 Sabha and
State or NIT or NMC or the Charity Commissioner overlooking
or avoiding to look into it, may be few such facets which can
be rectified for future.
80. Having already negated the arguments on need of
fresh public process for allotment on lease of the subject plot
on account of change of user, only other factors noted by us as
(F) to (K) supra in paragraph 69 survive for consideration.
User has been changed subject to payment of additional
premium for additional FSI and ground rent. All citizens can
legitimately presume that NIT is going to calculate it as per law
and protecting the public interest. Mischief or wrong
committed by it can not see the light of day without first
getting knowledge of lack of bonafides on part of respondent
no. 8 NIT, its officers or office bearers. Even if person with
knowledge of this error or mischief, suppresses his knowledge,
once the same is pointed out to High Court, it can not refuse to
examine the grievance if it is susceptible to rectification for
future and public interest warrants it. If deliberately low
premium is worked out, it may also indicate some abuse of
position by the concerned for extraneous considerations.
Dependent on it are the questions like whether any private
concern or individuals earned huge profits at the cost of public
in this development? How the additional income becoming
available to it is used by the respondent No. 9 Sabha? Whether
the Budget and accounts of Respondent No. 9 support its
public charitable purpose? Whether respondent No. 8 NIT
inserted any condition in the renewed lease deed requiring
production of audited accounts, and whether NIT or then the
Deputy/ Joint Charity Commissioner are monitoring adherence
therewith? NIT ought to have insisted for obtaining its NOC
before ushering any third person in possession of any portion
of subject property. Whether NIT has knowledge of the terms
and conditions of the agreements or documents executed or
registered in favour of the occupants of the commercial blocks
or the Hospital Respondent No. 16. Further more, to examine
the defence that new DCR could not have been made
applicable to 1961 disposal of land in favour of respondent No.
9 - Sabha, we have to see whether provisions of Rule 25 of
Land Disposal Rules prevail over sub-leases or agreements or
arrangements between the Respondent No. 9 Sabha and actual
occupants? It is not in dispute that 1955 Rules have been
quashed by this Court and initial allotment to respondent No. 9
Sabha was under those rules. These Rules were not in force in
1996 when renewal from 1991 till 31.03.2021 was granted.
1983 Land Disposal Rules are occupying the field since
18.05.1983. Similarly, Development Control Rules of 2000
governed the construction and development works in Nagpur
on 21.02.2004 and continue to do so on all relevant dates.
Impact of these provisions on the above factors needs the
scrutiny.
81. Respondents rely upon Rule 14.1 of The Development
Control Regulations, 2000 (DCR, 2000) to justify the
permission to construct 9 shop blocks on subject plot. Said
Regulations are sanctioned by the State Government under S.
31(1) of MRTP Act. Said rule allows various uses of buildings,
occupancies and premises in various zones as given in
Appendix M. Those uses can be modified by the Authority with
the approval of the Director of Town Planning. It is not in
dispute that in present matter we are concerned with Appendix
M-7. Appendix M-7 lists uses permissible in public/semi-public
zones. Schools, Colleges, Hostel for the students, Essential staff
quarters are allowed. Similarly, Hospital, Dispensary,
Maternity Homes, Health Centers, Complex for such uses,
Dharmashala for use by the visitors to patients, Essential
staff quarters, Veterinary hospital, Auditorium, Exhibition hall,
Gallery are also permitted. Mangal Karyalaya and Community
Halls are also included in it. Besides this, if subject plot is in
excess of 4000 Sq. Mtrs., 15% of the area can be used for
commercial purposes. These purposes can be Convenient
shopping, bank's branch, small hotel etc. However, this is
subject to the condition that the income derived from such user
is to be used for the purpose or object for which the subject
plot is allotted. With effect from 18.05.1983, The Nagpur
Improvement Trust Land Disposal Rules, 1983 were already in
force. These rules are referred to as 1983 Rules hereafter. As
per Rule 7, the premium of land disposed of is to be the bid of
the highest bidder in auction or bid. Procedure stipulated
therein envisages a fair market premium for it. Even when the
land is disposed of at predecided premium, the Committee of
Chairman of NIT, Collector of the City and Deputy Director of
Town Planning have to determine it after considering the sale
consideration of similar or similarly situated lands in the
vicinity of subject land, in immediately preceding year. The
premium can not be less than the expenditure incurred for
acquisition and development of such land. As per rule 25, if
there is any conflict between the provisions of 1983 Rules and
the terms in the lease deed entered by the NIT, the provisions
of 1983 Rules prevail. These 1983 Rules are framed by the
State Government under S. 76 read with S. 89(1)(m) of the
NIT Act,1936. Its S.1(2) applies 1983 Rules to all lands vested
in or acquired by the NIT under NIT Act, 1936. 1983 rules have
come into force since 18.05.1983. Its preamble declares that
1983 Rules operate in supersession of Nagpur Improvement
Trust Land Disposal Rules,1955. The allotment to respondent
No. 9 - Sabha was under these 1966 Rules. Rule 6 of 1983
Rules contemplates disposal of land for commercial purpose
only through public auction. We have already noted Rule 7
which permits disposal at predecided premium. Rule 8 of 1983
Rules is about terms of lease. It obliges NIT to dispose of the
land only on lease in consideration of premium or ground rent
or both for a term not exceeding 99 years. Sub rule (2) of Rule
8 is important for our purposes. It lays down that in cases
where the lease period below 99 years is over and the lessee
seeks renewal, respondent 8 NIT has to extend the lease period
on payment of lease rent at market price prevalent at the time
of renewal of lease. This renewal can be for balance period out
of 99 years and without calling fresh tenders or resorting to
auction. As per Rule 9, ground rent has to be 2% of this
premium. Hence, this sub rule also militates with the need of
fresh allotment or tender for renewal even if there is change of
user.
82. It is not in dispute that 1955 Rules have been
quashed by this Court. That judgment is not made available by
any of the parties. However, the respondent 9 Sabha is not
claiming any privilege and allotment to it in 1960-1961
appears to be without following any transparent process for
allotment. There is no challenge to 1983 Land Disposal Rules
before us. From reading of its preamble, Rule 8 and Rule 25, it
is obvious that when first lease of 30 years in favour of Sabha
expired, respondent 8 NIT was under obligation to allow
renewal for period from 01.04.1991 to 31.03.2021 by charging
premium at market rate prevailing in 1991. This first renewal
is done in 1996. Nobody has challenged this renewal or then
the premium or ground rent then charged. But this shows that
even then, computation with reference to market prices in
1961 was out of reckoning. It could not have been relevant on
11.08.2005 when the impugned calculations were undertaken
for a new renewal deed ultimately entered into between NIT
and Sabha in 1996 after the change of user allowed on
21.02.2004. This renewal is upto 31.03.2021 only. In the light
of express provisions of 1983 Rules seen above, it is apparent
that even in 2005 or 2006, the lease premium ought to have
been as determined with reference to market rate prevalent in
year 2003 -2004. Thus, even then NIT could not have and
should not have fallen back on year 1961. Exercise undertaken
by the NIT on 11.08.2005 is thus contrary to 1983 Rules. Thus
charging less premium or ground rent, has resulted in loss of
revenue to public and it is continuous one. Here that loss will
continue till 31.03.2021. In view of this clear legal position, we
do not find it necessary to look into terms of the first lease
deed which has expired on 31.03.1991 or then renewal deed
executed in 1996 between respondent 9 and NIT. 1983 Rule
apply to subject land and have overriding effect on all earlier
leases granted even under 1955 Rules if renewal thereof falls
due after coming into force of 1983 Rules. Sub rule (2) would
be redundant if NIT's contention that it applies to disposals
under 1983 Rules only is accepted. On the contrary, above
provisions of 1983 Rules indicate intention to subject the
disposal of lands under 1955 Rules to 1983 Rules. Otherwise,
rule 8(2) can not operate at all. Strenuous contentions of Adv.
Mishra that 1983 Rules do not operate retrospectively need
mention only to note that 1983 Rules do not affect leases
under 1955 during its initial agreed term but force compliance
with stipulations therein at renewal. Terms & conditions of
such old leases are rendered nugatory by Rule 8(2) read with
Rule 25 of the 1983 Rules. The conditions statutorily imposed
operate of its own force and consent of parties is immaterial.
This may be due to quashing of 1955 Rules by this Court.
Hence, it is not necessary to delve into justification or
explanation of 11.08.2005 exercise offered by NIT or
calculations explained by advocate Shri Mishra. By no stretch
of imagination, NIT could have used 1961 as base year for
computation of premium or ground rent either in 1996 or then
in 2005.
83. The relationship as lessor-lessee between
respondent 9 Sabha and respondent 8 NIT continues even
today. It has to last till 31.03.2021. Hence, the error then
committed can be corrected and loss sustained by the public
revenue can be recouped even now. Whether it is deliberately
done by any officers or the office bearers of NIT and was it in
due to political pressure or some other extraneous
consideration with participation of respondent 9 Sabha are all
irrelevant considerations. Collusion between the parties may at
the most prove fraud on public and may call for some penal or
disciplinary action. But the rectification and reimbursement
can be allowed without touching said aspect.
84. Resolution No. 29/988 passed on 30.03.2002 by
NIT permitting commercial use on 15% area of subject plot if
Sabha i.e. Respondent No. 9 gave an indemnity bond to
appropriate additional income generated thereby for its main
object i.e. public charitable purpose is not in dispute. NIT has
obtained an indemnity or undertaking accordingly. However,
in this PIL neither NIT nor State Government has asserted that
the income earned by the Sabha has been utilized as per that
undertaking or bond. Respondent No. 9 - Sabha should have
itself placed on record increased sphere or frequency of its
activities justifying the approvals given to it. In fact the
respondent No. 8 - NIT must regularly obtain the audited
accounts and return from Sabha to discharge its obligation.
Similarly, the Sabha should have produced before us the copies
of accounts and budgets filed in the office of the Joint Charity
Commissioner at Nagpur to demonstrate how the additional
fund has been spent. Neither petitioner nor the concerned
respondents have placed on record any data in this respect. To
find out actual income of the respondent No. 9 - Sabha, NIT
should have perused the documents executed by the agents or
attorneys of Sabha authorizing the persons who have paid for
construction to occupy their respective blocks. There is no such
plea by the NIT. Section 36 of the Maharashtra Public Trust Act
directed NOC of NIT with a particular intention. Income Tax
Department has allowed transaction in relation to additional
FSI only. Hence, what is the nature of interest of such
occupants in the structure or the land is not explained by
anybody. Whether the persons paying get only a license which
can be put to an end at any time by the NIT or then the
arrangements also cast some obligations upon NIT is the moot
question. NIT could have after perusal of all such documents
or authorizations pointed out how its title is not diluted by the
said arrangement. Though, there is no physical sub-division of
the subject plot, whether the person who paid in full for the
structure and is occupying it, can be said to have no right to
the underneath land i.e. joint undivided share to the extent of
FSI consumed by the structure purchased by him needed to be
answered by the NIT. As per letter of NIT dated 17.8.2000
sent to State on the subject of grant of additional FSI to Sabha,
no sub-lease or subdivision of plot was permissible. An
undivided share only could have been transferred. Such
permission was never sought thereafter, more particularly after
21.02.2004 and in any individual case. Copies of all such
deeds should have been placed before us or then a responsible
statement could have been made in this respect. One can not
accept that normally the person paying for his constitution has
also to pay for the proportionate FSI so as to secure his
structure permanently. NIT, therefore, should have been a
consenting party to all such agreements with the persons who
have booked the commercial areas in subject plot i.e. its "Wing
B". Scrutiny of matter with this perspective in mind may throw
more light and help in securing public interest in this matter or
in other matters. The concerned authorities may thereafter
either elect to use their rights and evolve suitable measures to
prohibit repetition of such wrongs in other cases. We also
grant leave to respondent No. 8 - NIT or its successor and
respondent No. 1 - State to consider after such inquiries and as
per its outcome, whether to renew the lease in favour of
respondent No. 9 - Sabha beyond 31.03.2021 following Rule
8(2) of the Land Disposal Rules, 1983 or then, to find new
lessee through open competitive process ready to accept the
subject plot in as is where is condition.
85. Before parting, it is to be noted that impact of
change to commercial purpose from the public utility or semi-
public purpose on the development plan or then on its
character does not figure as a relevant yard-stick in the entire
exercise under S. 37 of the MRTP Act. No authority has
commented upon the variation in total public or semi-public
reservation percentage thereby. It is apparent that merely
because such change is allowed in relation to the one land, it
can not be claimed by the adjacent lands. Such change has to
be an exception and an exception made on valid grounds can
not become a comparable instance to invoke Article 14 of the
Constitution of India. Here, we have refused to intervene only
due to delayed approach or as the things have become
irreversible. However, respondent State Government and
Local Bodies are not allowed and can not permit further
addition to structures on subject land. A fresh decision about
desirability of tolerating such development after 31.03.2021 or
lease in favour of the respondent No. 9 - Sabha shall be then
examined as per law. We hasten to add that these
observations do not prohibit the said authorities to act as per
law and take necessary decisions and measures, remedial or
otherwise, in view of confidence reposed in them by the law.
86. As we have applied our mind in public interest and in
non-adversarial lis, we will be failing in our duty if we do not
place on record the relevant developments on judicial side
having bearing on the planned development of the cities and
towns as per MRTP Act.
87. Several writ petitions have been filed because of
inability of the State Government or the Local Bodies or the
Appropriate Authorities to acquire the lands earmarked for the
public purposes. All landowners find that though the period of
ten years has expired, these authorities are not in position to
commence the land acquisition as per S. 126 of the MRTP Act.
The owners or the developers, as their agents serve notices
under S. 127(1) of the said Act, wait for stipulated period and
then get a declaration from the Court that reservation
earmarked on their land has lapsed and they are free to
develop their land for the purpose/ user for which adjacent
land can be developed. This notice can be issued after 10 years
of the coming into force of the development plan and the
person issuing notice has to wait for two years. The
reservation on the land mentioned in notice does not lapse if
steps for its acquisition are taken within said period of two
years. Earlier this period was of 6 months and then in 2010, it
was increased to 12 months, now it has been further amended
to 24 months. Law on this deemed lapsing is seen in State of
Maharashtra Vs. Bhakti Vedanta Book Trust and others,
reported at 2013 (5) Mah. L.J. (SC) 195 and Shrirampur
Municipal Council vs. Satyabhamabai Bhimaji Dawkher,
reported at (2013) 5 Mah. L.J. (SC) 492 at Aurangabad Bench
of this Court, one municipal council had approached with a
grievance that as it was not getting sufficient revenue after
withdrawal of the octroi, it was not in position to acquire. A
Division Bench here also expressed concern after noticing the
manner and speed with which the reservations were allowed to
lapse and inability of Local Bodies or the State to provide funds
for acquisition. A PIL then registered has been disposed
because of special fund made available for such acquisition and
increasing of waiting period after service of notice from 12
months to 24 months. Recently, again the local bodies have
started making grievance of lack of funds. In one matter. It was
pointed out that the Local Body was not in position to hike the
taxes and generate funds. Almost all the Local Bodies are
finding it difficult to pay pension, gratuity as also regular
salaries. In a writ petition filed against Municipal Corporation,
Akola , very recently the Municipal Commissioner has pointed
out large number of vacancies and consequential delay in
monitoring the developments which results in illegal
constructions.
88. Illegal or unauthorized constructions are legalized
regularly under public pressure in public interest by the
Government. Even the encroachments have been regularized.
This has not remained a one time measure and gave boost to
those who wield influence to indulge in it for profit making.
Conversion of user of land to a more profitable purpose
through machinery under S. 37 is also sought. The municipal
councils, under pressure, pass resolution either for deletion of
reservation or for its alteration. Thereafter, on the strength of
such resolutions, again intervention of the State is being
sought. Thus legal scientific development of towns is getting
paralyzed due to various factors and forces. All this has cut in-
roads in MRTP Act. In one matter before us, it became clear
that the State Government does not have data ready with it to
show the percentage of earmarked reservations lost by the law
abiding public in the process. MRTP Act is intended for
scientific development of towns by providing requisite extent
of lands for public utility, gardens, playgrounds, residential
purpose etc. These lands for garden, school, hospital,
playground etc. are encircled by the residential complexes and
hence, their residential or commercial potential increases.
Influential owners or their developer agents then attempt to
get the same dereserved. Hence, when under S. 37 of the
MRTP Act, impact of proposed change on the character of the
development plan is the norm, without all this material, it is
impossible to comprehend it. A suo motu PIL is perhaps still
being considered by this Court. A writ petition for declaration
of lapsing of reservation of a Fire Station for NMC is being
heard at the instance of members of a cooperative society
which sold them the plots on said land. Their plots are recently
regularize by the NIT under Gunthewari Regularization Act.
89. Sum and substance of this discussion is that more
fundamental issue to be addressed is whether MRTP Act has
served or is serving the purpose for which it has been enacted.
If reservation earmarked has to remain on paper and disappear
therefrom only at the instance of landowners because people
are not ready and willing to pay for its acquisition, it may be
felt that said Act and planned development is not the need of
society. If it is still wanted by the Society, then as private lands
can not be effectively earmarked for any user or if already
marked, need to be acquired by paying compensation; the
object of MRTP Act may again fail. Then, only alternative to
provide lands for garden, playgrounds etc. are the lands vested
with or owned by the State Government or the Local Bodies.
Such Reservation necessarily needs to be fastened on these
lands or then shifted to it, if some scientific orientation is to be
maintained. The said lands therefore must continue with the
State Government or the Local Bodies and their user must not
be allowed to be modified. Commercial exploitation of such
lands whether allotted at concessional rate or otherwise by any
such allottee must be disallowed. In present matter as rightly
pointed out by the town planning, plot with such high FSI was
not required by the respondent 9. Said office pointed out
proportion of FSI being shared by respondent No. 9 - Sabha
and the developer and had opposed the change of user or
modification in development plan. A plot with 1/3rd area was
ideal for Sabha and such huge plot with commercial potential
could have been put to better public use. Respondent no. 9 can
not sell major part of subject plot and through proceeds
thereof, attempt to sustain itself on small piece thereof. Public
bodies or Local Bodies have to remain relevant because of need
of their work by the Society. Such bodies or Local bodies can
not be allowed to sell the government property to sustain
themselves. These bodies must generate revenue or funds as
per law constituting them and provide service to public in
proportion thereof. Profit resulting from any commercial
activity on such plots must become part of public revenue.
Individuals or their trusts or organizations can not be allowed
to profit by procuring such lands and then disposing it of
directly or indirectly in open market. All these are obviously
policy decisions which may have been or are being taken by
the elected representatives after due deliberations. We find
that it is high time for having proper deliberations in this
connection and there is no point in being complacent as MRTP
Act exists.
90. Accordingly, we proceed to pass the following
order :
1) We find the exercise dated 11.08.2005 for
determination of additional premium and ground rent by the
respondent No. 8 - NIT, bad and quash it.
2) NIT shall undertake fresh decision on quantum of
lease premium as also ground rent charged to respondent No.
9 - Sabha at the first renewal for the period from 31.03.1991 to
31.03.2021 as also after change of user, with effect from
21.02.2004 till 31.02.2021, for additional FSI, as per Rule 8(2)
of the Land Disposal Rules, 1983. This exercise shall be
completed as per law within next three months after giving an
opportunity of hearing to the respondent No. 9.
3) The additional premium and ground rent so
becoming payable shall be recovered from the respondent No.
9 - Sabha. Current premium and ground rent shall be paid by
Sabha to NIT within two months of its computation. Arrears
shall be recovered by the NIT in 12 equal bimonthly
installments either from the Sabha or then from the
Respondent no. 16 Hospital, either jointly or severally.
4) We expedite the Regular Civil Suit 762 of 2016 filed
by the respondent No. 16 against NMC assailing the notice
dated 27.06.2016 for removal of unauthorized construction
issued by it and direct completion of its adjudication within
one year.
5) Respondent No. 8 - NIT or other competent
authority like NMC or State Government to study the
documents by or through which the occupiers are placed in
possession of their respective structures and correspondence
regarding it, to find out whether there is any parting with its
rights by respondent No. 9 - Sabha in their favour by
conferring upon them joint and undivided share.
6) Respondent No. 8 - NIT or successor authority like
NMC or State Government to study the audited books of
accounts regularly maintained by respondent No. 9 - Sabha to
gather whether the additional income is used and utilized as
per indemnity bond / undertaking furnished by Sabha.
7) If it is found that there is any transfer or a parting
or subdivision of its title by respondent No. 9 - Sabha in
violation of 1983 Land Disposal Rules or the permission given
by the Joint Charity Commissioner under S. 36 of the
Maharashtra Public Trust Act or then the earnings due to
change of user are not put to use as undertaken, the concerned
respondent shall take suitable action as per law, after
extending the opportunity to all likely to be affected thereby.
8) Respondent - State Government through its Joint
Charity Commissioner shall also verify whether budget for
each year and duly audited accounts therefor have been
presented to the competent authority as per Maharashtra
Public Trust Act and funds have been properly made use of to
increase or to add to its activities by the respondent No. 9 -
Sabha.
9) Respondent No. 8 - NIT or its successor as also the
State Government shall, also consider the need of renewing
lease of subject plot after 31.03.2021 in favour of respondent
No. 9 - Sabha and adopt that course which would be more in
the interest of general public. This decision shall be taken after
a public advertisement and hearing all concerned within one
year from to-day.
10)
Respondent - State Government also to deliberate
on various issues having bearing on implementation of MRTP
Act as noted supra in paragraph 88 & 89 above. These
deliberations be also completed within next one year.
However, before taking final decision on any proposal for
dereservation, lapsing of reservation or then for change of the
user, the State shall examine the data relevant to comprehend
the factual impact of proposed deletion or change on character
of the development plan.
11) If during any such hearing or inquiry, Chairman of
respondent No. 8 - NIT or then respondent No. 1 - State finds
any abuse of power or then wrongful gain by any of its
employee or its office bearer, elected or nominated, ex or
present, or by or on behalf of respondent No. 9 - Sabha which
has resulted in loss to public revenue, or then that any
individual or any concern has secured any unwarranted gain or
undue advantage in the process; requisite legal actions, civil as
also criminal, against such person or concern, shall be initiated
immediately.
12)
We also grant to the petitioner costs of Rs. Ten
Thousand each from the respondent No. 8 - NIT and
respondent No. - 9 Sabha. Costs shall be deposited with the
registry of this Court within next four weeks.
JUDGE JUDGE
******
*GS/dragon.
C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment."
Uploaded by : G. Shamdasani
Uploaded on : 14.09.2016.
