Bombay High Court
M/S. Bombaywala, Nagpur Acting ... vs State Of Maharashtra, Through Its ... on 15 September, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.2695 of 2015
1. M/s. Bombaywala,
a partnership firm, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
acting through and represented
by its Partner, Shri Govind Gehimal
Mirpuri,
R/o Mound Road, Sadar, Nagpur.
2. M/s. Bala Shoes,
a partnership firm, having its place of
business at Sitabuldi Main Road,
Nagpur-440 012,
acting through and represented by
its Partner, Shri Ashit Chakravarty,
R/o Anant Nagar, Katol Road,
Nagpur.
3. M/s. Samrat Garments,
a partnership firm having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
acting through and represented by
its Partner, Shri Prasanna Modi,
R/o Mahal, Nagpur.
4. Shri Satish Sharma,
Aged adult, Occupation - Business,
Proprietor, M/s. Kids Point,
a proprietary concern, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
R/o Bajaj Nagar, Nagpur.
5. Shri Pramod Palkar,
Aged adult, Occupation - Business,
Proprietor, M/s. Chafekar Dugdha Mandir,
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a proprietary concern, having its place
of business at Sitabuldi,
Main Road, Nagpur-440 012,
R/o Tilak Nagar, Nagpur.
6. M/s. Selection House,
a partnership firm, having its
place of business at Sitabuldi
Main Road, Nagpur-440 012,
acting through and represented
by its partner, Shri Mahendra Jain,
R/o Ladpura, Itwari, Nagpur.
7. M/s. Rajkamal Readymade Stores,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its partner,
Shri Vimal Kumar Jain,
R/o Parwarpura, Itwari, Nagpur.
8. M/s. Dream Shoppe,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its Partner, Shri Raju
Rajkumar Jain, R/o Dhantoli, Nagpur.
9. M/s. Victory Watch Company,
a partnership firm, having its place
of business at Sitabuldi, Main Road,
Nagpur-440 012, acting through and
represented by its Partner,
Shri Amirali Neemuchwala,
R/o Mankapur, Nagpur.
10. Shri Sanju Kipte,
Aged Adult, Occupation - Business,
Proprietor, M/s. Vijay News Agency,
a proprietary concern, having its
place of business at Sitabuldi Main
Road, Nagpur-440 012,
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R/o Deonagar, Nagpur.
11. Dr. Shri Pradeep V. Rajderkar,
Aged about 48 years,
Occupation - Medical Practitioner,
having his Clinic at Sitabuldi
Main Road, Nagpur-440 012,
R/o Hindustan Colony,
Wardha Road, Nagpur.
12. M/s. Fashion Bazaar,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its Partner, Shri Madan
Kalra, R/o Wathoda, Nagpur.
13. M/s. Gaysons,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its partner, Shri Ravindra
Shyam Agrawal, R/o Ramdaspeth,
Nagpur.
14. Shri Kishore Meshram,
Aged adult, Occupation - Business,
Proprietor, M/s. Breakfast Juice Centre,
a proprietary concern having its place
of business at Sitabuldi Main Road,
Nagpur.
15. Shri Sadanand Meshram,
Aged adult, Occupation - Business,
Proprietor, M/s. Sadanand Snacks and
Juice Centre, a proprietary concern,
having its place of business at
Sitabuldi Main Road, Nagpur-440 012,
R/o Sitabuldi, Nagpur.
16. M/s. A.S. Balasubramanian,
Aged about 63 years,
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Occupation - Business,
Partner, M/s. Vishranti Gruha,
a partnership firm, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, R/o Dharampeth,
Nagpur.
17. M/s. S. Ramchand,
proprietary concern, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012, acting through and
represented by its authorised representative,
Shri Mitesh Rambhia, R/o Laxmi Nagar,
Nagpur.
18. Shri Jagdish Waswani,
Aged adult, Occupation - Business,
Proprietor, M/s. Quality Fashions,
a proprietary concern, having its place
of business at Sitabuldi Main Road,
Nagpur-440 012,
R/o Jaripatka, Nagpur. ...P
etitioners
Versus
1. State of Maharashtra,
through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-400 032.
2. Nagpur Improvement Trust,
A statutory body, constituted under
the Nagpur Improvement Trust Act, 1936,
having its office at Station Road, Sadar,
Nagpur-440 001, through its Chairman.
3. Divisional Officer (West),
Nagpur Improvement Trust, Nagpur,
having office at Divisional Office (West),
North Ambazari Road, Nagpur-440 033.
4. Superintending Engineer,
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Nagpur Improvement Trust, Nagpur,
having office at Station Road, Sadar,
Nagpur-440 001.
5. Assistant Director, Town Planning,
Nagpur Improvement Trust, Nagpur,
having office at Station Road, Sadar,
Nagpur.
6. Smt. Madhuribai Ramchandrarao Buty,
Aged adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road,
Rahate Colony, Nagpur.
7. Shri Girish s/o Shri Ramchandrarao Buty,
Aged adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road, Rahate Colony,
Nagpur.
8. Shri Yogeshwar s/o Shri Ramchandrarao Buty,
Aged adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road, Rahate Colony,
Nagpur.
9. Shri Aniruddha @ Dilip s/o Shri Mukundrao Buty,
Aged adult, Occupation - Not Known,
R/o Laxmi Vilas, Jail Road, Rahate Colony,
Nagpur.
10. Ku. Purnima d/o Shri Vishwanathrao Buty,
Aged adult, Occupation - Not Known,
R/o Sukh Niwas, Near Ramkrishna Aashram,
Dhantoli, Nagpur.
11. Shri Pushkar s/o Shri Vishwanathrao Buty,
Aged adult, Occupation - Not Known,
R/o Sukh Niwas, Near Ramkrishna Aashram,
Dhantoli, Nagpur.
12. Goel Ganga Infrastructure & Real Estate
Private Limited,
A company incorporated and registered
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under the Companies Act, 1956, having its
Registered Office at Bombay Mutual Building,
Third Floor, Office No.17/18, 148, P.M. Road,
Fort, Mumbai-440 001; at San Mahu
Commercial Complex, 3rd Floor,
5, Bund Garden Road, Pune-411 001,
and its local office at Plot No.92,
Near Golhar Hospital, Lendra Park,
Ramdaspeth, Nagpur-440 012.
13. Shri Jaiprakash s/o Shri Sitaram Goel,
Aged adult, Occupation - Business,
Director, Goel Ganga Infrastructure &
Real Estate Private Limited,
R/o at San Mahu Commercial Complex,
3rd Floor, 5, Bund Garden Road,
Pune-411 001, and at Plot No.92,
near Golhar Hospital, Lendra Park,
Ramdaspeth, Nagpur-440 012.
14. Shri Atul s/o Shri Jaiprakash Goel,
Aged adult, Occupation - Business,
Director, Goel Ganga Infrastructure
& Real Estate Private Limited,
R/o at San Mahu Commercial Complex,
3rd Floor, 5, Bund Garden Road,
Pune-411 001, and at Plot No.92,
near Golhar Hospital, Lendra Park,
Ramdaspeth, Nagpur-440 012.
15. Shri Ajay Radheshyam Tajpuriya,
Aged adult, Occupation - Business,
Director, Goel Ganga Infrastructure &
Real Estate Private Limited, R/o Plot
No.N-1, 8, Cross Road, Rani Laxmi Nagar,
Nagpur-440 022. ... Respondents
Shri Subodh Dharmadhikari, Senior Advocate, assisted by
Shri Charuhas Dharmadhikari, Advocate for Petitioners.
Shri N.S. Rao, Assistant Government Pleader for Respondent No.1.
Smt. Bharti Dangre, Advocate for Respondent Nos.2 to 5.
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Shri M.M. Agnihotri, Advocate for Respondent Nos.6 to 8.
Shri Sunil Manohar, Senior Advocate, assisted by Shri Akshay Naik,
Advocate for Respondent Nos.9 and 12 to 14.
Shri M.G. Bhangde, Senior Advocate, assisted by
Shri R.M. Bhangde, Advocate for Respondent No.11.
Shri Ritesh D. Kalra, Advocate for Respondent No.15.
Coram : R.K. Deshpande & S.B. Shukre, JJ.
Date of Reserving the Judgment : 31st August, 2016
Date of Pronouncing the Judgment: 15th September, 2016
Judgment (Per R.K. Deshpande, J.) :
Rule. Taken up for final disposal.
1. One late Shri Puranchandra Buty was the owner of Khasra
Nos.320 and 315 (Part) of Mouza Sitabuldi, Nagpur. This property
was partitioned amongst his legal heirs and their shares are
devolved upon the descendants, who are the respondent Nos.6 to
11 ("the owners") in this petition. This petition pertains to the
implementation of "Abhyankar Road Widening and Buty Mahal
Street Scheme" ("the Scheme", for short) prepared by the Nagpur
Improvement Trust, Nagpur ("NIT") for systematic development of
8.7 acres of land of Khasra Nos.320 and 315 (Part), Mouza
Sitabuldi, belonging to Buty family, consisting of Sitabuldi Retail
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Market on the sides of Mahatma Gandhi Road and Abhyankar
Road, located in 'V' shape, from the junction of Variety Square, in
the heart of the city of Nagpur.
2. The purpose of the said Scheme is to create and improve
the existing means of communications and facilities for the traffic
by removing congestion and to develop the area into a beautiful
shopping centre. The implementation of the said Scheme involves
co-ordination of the activities of the owners of the land, the
developers, NIT, the Planning Authority for the city of Nagpur, and
protection of interests of 210 tenants, including shop-keepers and
residents in the area, who are established there since last 50 years.
Facts of the case in chronology :
3. On 29-10-1960, the Board of Trustees of NIT passed a
resolution to frame the Scheme under Section 31 of the Nagpur
Improvement Trust Act, 1936 ("NIT Act") involving acquisition of
properties as per the list and the map enclosed, and it was
published under Section 39 of the NIT Act (which is equivalent to
Section 4 of the Land Acquisition Act) on 5-10-1961, inviting
objections from the public at large. The salient features of the
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Scheme were as under :
(1) Acquisition of approximate area of 8.7 acres
belonging to Buty family.
(2) Widening of Mahatma Gandhi Road to the extent
of 15 feet on the southern side, resulting in total width of
the road varying from 65 feet to 80 feet. The buildings on
the southern side of the road will have a set back of
10 feet.
Abhyankar Road is proposed to be widened from
existing 26 - 45 feet to 60 feet. The buildings to be
constructed and re-constructed on the either side of the
road will have a set back of 10 feet.
(4) New 50 feet (15 meters) wide road will join
Mahatma Gandhi Road on the north to Abhyankar
Road on the west. The road will pass through
"Buty Mahal". On the western side of the road, there
will be a parking space opposite the cinema theater. It
will be possible to have a circulating traffic from
Variety Island up to the Island at the junction of 50
feet road with Mahatma Gandhi Road and Abhyankar
Road.
(5) Removing the existing ugly and ill-ventilated
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premises on Mahatma Gandhi Road and Abhyankar Road
and converting the same into plots prescribed for spacious
office use.
(6) Shop-cum-office, plot shop of 15 x 30 feet size shall
be provided on Mahatma Gandhi Road, i.e. 1, 2, 3, 4 and
5; three shops of 15 x 18 feet size, i.e. 6, 7 and 8; and five
shops of 15 x 24 feet size, i.e. for shop-cum-office user
shall be provided on Abhyankar Road, i.e. 9, 10, 11, 12
and 13.
In the final layout, the plots on Mahatma Gandhi
Road will have a depth of 100 feet with continuous
frontage. In fact these plots will have shop frontages on
both the sides. The plots on Abhyankar Road in the final
layout will have 60 feet and 80 feet in depth, and these
plots, as well, will have double shop frontages.
(8) Providing 20 feet wide pedestrian back road.
(9) Providing 30 feet wide back road.
(10) Four plots prescribed for residential use, i.e. 14, 15,
16 and 17 of frontal plinth, area 3,130 square meters,
shall be provided on 30 feet wide back road.
(11) Space for vehicle parking of an area of 0.07 HA
shall be provided on the back road in front of Regal
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Cinema.
(12) Nullah flowing north side along the eastern
boundary of the said Scheme shall be canalized.
(13) 30 feet wide road will connect 50 feet road to
Malviya Road on the southern side.
4. The said Scheme was sanctioned by the State Government
in exercise of its power conferred by Section 44 of the NIT Act on
23-9-1964 and the notification was also issued to that effect on
23-9-1964 under Section 45 of the NIT Act. The award was passed
on 16-12-1997 and it is claimed that the possession was taken by
the NIT on 31-12-1997.
5. During the period from 29-12-1960 to 31-12-1997,
several events have occurred, which need to be stated in brief. The
proceedings for acquisition of land took considerably long time and
the land owners filed Writ Petition No.2326 of 1983 before this
Court praying for quashing and setting aside the land acquisition
proceedings. The tenants, including the shop-keepers and the
residents in the area covered by the Scheme, formed the
Association, viz. Buty Mahal Merchants and Professional Tenants
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Association ("Association"), and started making representations to
the NIT for protection of their interests and giving suggestions for
amicable resolution of the issue.
6. It was the demand of the Association to purchase the
properties or rights in respect of the area in their occupation from
Buty family by way of private negotiations and to execute their
own constructions in consonance with the plan/improvement
scheme of the NIT. The land owners, viz. Buty family, also
expressed their willingness to hand over the properties in the
interest of the Scheme for betterment of people and requested for
compensation at the prevailing prices of the lands on the date of
notification. The land owners requested for allotment of
re-constituted plot and showed their willingness to accommodate
all the tenants in the re-constituted plot to be allotted to them by
the NIT.
7. In order to take into consideration the various suggestions
of the tenants and the land owners, the Board of Nagpur
Improvement Trust was called its 898th meeting on 11-3-1996, in
which a decision was taken to allot the re-constituted plot and to
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accommodate all the tenants in the Scheme. The allotment of plot
was to be done on the premium at the rate of Rs.2,500/- per square
meter or on the rate of development, whichever is higher. It was
resolved to submit a proposal to the State Government for grant of
relaxation under Rule 5(2) of the Nagpur Improvement Trust
(Land Disposal) Rules, 1993. Keeping in view this decision of the
NIT, the land owners chose to withdraw Writ Petition No.2326 of
1983 on 25-3-1996 with liberty to approach again if the decision of
the State Government goes against them, which was permitted.
8. After enormous correspondence between the State
Government and the NIT, the proposal of the NIT for modification
of the Scheme and allotment of re-constituted plots to the land
owners was sanctioned by the State Government on several
conditions, by issuing the Government Resolution dated 7-10-1997.
The object of issuing the said Government Resolution was to
accommodate all the tenants in the Scheme, which was not there in
the earlier Scheme framed by the NIT. The land was allotted to the
land owners on the premium which was 50% of the market rate so
that the land owners can accommodate the tenants. Accordingly,
the NIT passed a resolution on 23-10-1997 to implement the
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decision contained in the Government Resolution dated 7-10-1997.
It is thereafter the land acquisition proceedings continued and the
award was passed on 16-12-1997 and the land owners handed over
the possession of the lands in question to the NIT on 31-12-1997.
9. Upon receipt of the Government Resolution
dated 7-10-1997, the members of Buty family made a
representation to the NIT on 3-5-1999 and suggested that instead
of dividing the area under acquisition into small plots, the entire
land should be treated as a single plot and the internal roads
should be treated as private roads, and it was proposed that to
accommodate number of occupants, it is necessary that FSI of the
area, which would be consumed by the road widening and the
internal roads, be allotted to be utilized for construction of upper
floors of the proposed building and the demand was made for
increase of FSI from 1.25 to 2.5. The owners also offered the
facility of ramp for terrace parking, beautification, space for
loading and unloading facility, etc.
10. The NIT issued the notices for removal of unauthorized
constructions on Abhyankar Road. Being aggrieved by it, the
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tenants approached this Court by filing Writ Petition No.798 of
2002 challenging the Government Resolution dated 7-10-1997
along with the notices of demolition. The matter was decided by
the Division Bench of this Court on 22-2-2002. It was the specific
contention raised in the said writ petition, relying upon the various
provisions of the Maharashtra Regional and Town Planning Act,
1966, that the development plan for the city of Nagpur published
in the year 1976, makes the provision for 40 feet (12 meters) wide
Abhyankar Road and the implementation of the Scheme containing
80 feet (34 meters) wide Abhyankar Road, would be contrary to
the provisions of the Maharashtra Regional and Town Planning Act.
11. The Division Bench of this Court in the aforesaid decision,
rejected the said contention, holding that the Nagpur Improvement
Trust Act of 1936 is the special Statute created for the purpose of
planning and development of the city of Nagpur alone, and
consequently that Statute shall prevail over the general Statute, i.e.
the Maharashtra Regional and Town Planning Act, which came into
existence in the year 1966. It further holds that the development
plan only depicts the factual position as on the date of its coming
into force and the Scheme of widening of the road cannot be said to
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be adverse, amounting to change in the development.
12. The tenants approached the Apex Court by filing Special
Leave Petition No.4846 of 2002, in which a compromise was
entered into between the parties on 8-4-2002, and accepting it, the
Apex Court disposed of the SLP on the very same date by observing
that the compromise is voluntarily and lawfully arrived at between
the parties, and the parties agree to abide by the terms of the
compromise and the tenants and landlords agree to vacate the area
out of the property in their possession for the purposes of road
widening of Sitabuldi Main Road-60 feet., Abhyankar Road-80 feet,
and Internal road-50 feet, and the parking. Amended Clause No.1
in the compromise pursis being relevant, is reproduced below :
"1. That, the landlord shall construct a multistoried
building on the reconstituted plot that shall be allotted to
him by the Nagpur Improvement Trust in accordance with
the building sanction that may be granted by the Nagpur
Improvement Trust and shall give to the tenant on
ownership basis, on "no profit no loss basis", a shop block
having 75% of carpet area as that of the carpet area as
given in the schedule of property, on ground floor and/or
first floor etc. as per schedule of the proposed building. The
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cost of the shop proposed to be given to the tenant shall be
worked out on carpet area, plus wall thickness plus
proportionate area under common passage and common
facilities used by the tenant. The landlord shall give to the
tenant the shop block in the proposed building in the same
situation, location and in the same sequence in which the
above named tenant and other tenants are occupying, as far
as possible. The height of the proposed shop shall be
9'6" Ft. The plinth level of the proposed building shall not
be lower or higher by more than 3 ft, or as per sanctioned
map whichever is less of the existing ground level."
13. One of the co-owners from Buty family approached the
NIT on 8-8-2002 informing that in terms of the compromise
entered into before the Apex Court, the Chairman of the Trust had
assured that a single plot would be allotted and the FSI of 2.50 is to
be provided for the acquired portion of the road widening. The
NIT passed Resolution No.41 on 22-3-2003 to provide a single
re-constituted plot. However, the NIT, after taking into
consideration the possible congestion on account of traffic, decided
to widen Abhyankar Road from 12 meters to 24 meters.
14. On 2-8-2006, the land-owners Buty family assigned the
rights of development of Khasra No.320, bearing corresponding
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CTS Nos.3116 to 3128 (both inclusive) to the respondent Nos.12
to 14 ("the developers") and also executed irrevocable power of
attorney in their favour for total consideration agreed therein. The
developers were authorized to deal with the tenants and to collect
from them the rent and charges with effect from 12-2-2006. The
development is required to be carried out strictly in accordance
with the sanctioned plans and specifications as per the DCR.
15.
In order to make maximum benefits available to the
'owners', 'developers' and the 'tenants', the FSI was increased from
1.25 to 2.50. A minor modification was carried out by following
the procedure under the Maharashtra Regional and Town Planning
Act. The user of the land was changed from 'residential' to
'commercial', and the area was converted from 'congested zone' to
'non-congested zone'. Such a proposal given by the NIT was
approved by the State Government in exercise of its power under
sub-section (2) of Section 37 of the MRTP Act by issuing
notification on 22-6-2007. The NIT accordingly issued the letters
to the land owners for allotment of the re-constituted plot,
admeasuring 1,14,079.36 square meters.
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16. On 22-4-2008, the NIT prepared a tentative layout plan
showing a single plot and as per the amicable settlement arrived at
between the land-owners and NIT, it was agreed that the
acquisition of land admeasuring 1,14,079.37 square feet (including
acquisition of portion approx. 33,000 square feet or thereabout for
widening of Abhyankar Road and Sitabuldi Main Road) out of the
said property would be accepted by the owners and the NIT shall
reconstitute the said property into new reconstituted plot and
thereafter shall grant lease in respect of undivided share of NIT.
Accordingly, a lease-deed dated 10-2-2010 in respect of undivided
share of the NIT was executed in favour of the land owners. On
15-5-2012, the NIT sanctioned the final layout plan as per the
Development Control Regulations and the building permit was also
sanctioned on 27-6-2012, which was then revised on 11-12-2014.
The building permit and commencement certificate was granted on
10-12-2014.
Notices impugned in this petition :
17. In the aforesaid background, the NIT issued individual
notices dated 24-4-2015 to all the petitioners, which are identically
worded, informing them that the NIT has granted sanction to the
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building plan of commercial complex in Khasra No.315 (Part) and
320 along with building permit on 11-12-2014 and the
construction is going thereon. It further informs that in terms of
the Government Resolution dated 7-10-1997 and the compromise
accepted by the Apex Court on 8-4-2002, the shopkeepers on
Sitabuldi Main Road are required to be accommodated in the
commercial complex. It further informs to all the petitioners that
the shops existing on the side are common in the way of proposed
construction in the front margin and hence the shopkeepers are
directed to vacate portion of the shops leaving 8-meter depth of the
shop from Sitabuldi Main Road so as to facilitate demolition of it
and construction of commercial complex. If the said portion is not
vacated within seven days, then the action of demolition shall be
taken by the NIT. These notices issued to every individual
shopkeepers are challenged in the present writ petition. This Court
has stayed the notices of demolition.
Amendment applications :
18. The petitioners filed two Civil Applications No.1470 of
2015 and 1615 of 2015 for amendment of the petition. Civil
Application No.1470 of 2015 seeks direction to the NIT to comply
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with the Government Resolution dated 7-10-1997, and Civil
Application No.1615 of 2015 seeks to add the prayer clauses
challenging the plan sanctioned by the NIT on 27-6-2012 and the
sanction granted to the revised plan on 11-12-2014. The challenge
is on the ground that the sanction granted is illegal, being contrary
to the terms and conditions of the Scheme. The respondents have
opposed the applications for amendment on the ground that the
sanction granted in 2012 was being challenged in 2015, the
construction has already commenced, and hence the applications
are liable to be rejected.
Orders passed earlier :
19. After preliminary hearing of the matter for quite some
time on 12-7-2016, we put a specific question to
Shri Subodh Dharmadhikari, the learned Senior Advocate, assisted
by Shri Charuhas Dharmadhikari, Advocate, appearing for the
petitioners, as to whether the petitioners present in this Court, are
interested in the implementation of the Scheme in terms of the
compromise accepted by the Apex Court on 8-4-2002 in Special
Leave Petition No.4846 of 2002 and further waiving all other
challenges raised in the petition. His response was that the
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grievance of the petitioners will be satisfied if all the terms of
compromise dated 8-4-2002 are made applicable to them as it is
without there being any change in it. He further expressed that the
insistence on the part of the petitioners would be to maintain
internal connectivity by 15-meter wide road between Mahatma
Gandhi Road and Abhyankar Road.
20. In view of the aforesaid statements, we passed an order
on 12-7-2016 as under :
" After hearing the learned counsels appearing for the
parties at length, prima facie, it seems to us that the dispute
pertains to the existence of the internal 15 meter wide road
connecting Sitabuldi Main Road to Abhyankar Road.
According to the learned counsel Mrs. Dangre, appearing for
the N.I.T., such road was never shown in any of the
proposals either forwarded by the State Government or
displayed in the office of the N.I.T. for the objections to be
invited from the public at large. According to the
petitioners such a road was shown throughout and the
N.I.T. is proposing to implement the Scheme without such
road to which they have an objection.
In view of the aforesaid controversy involved, we think
it proper to direct the respondent - N.I.T. to file an affidavit
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making their stand on this aspect clear, which shall be
supported by the original documents forwarded to the State
Government and displayed for objections by the public at
large. The affidavit be filed within a period of one week
from today.
Put up this matter for further hearing on 22.07.2016
at 11.30 a.m., as part-heard."
21. Thereafter, the matter was again heard on 25-7-2016,
when the following order was passed :
" On the last occasion, i.e. on 12-7-2016, the
respondent-Nagpur Improvement Trust was directed to
file an affidavit making their stand clear on the aspect
of existence of internal 15-meter wide road connecting
Sitabuldi Main Road to Abhyankar Road. The
affidavit is to be supported by the original documents
forwarded to the State Government and displayed for
objections by the public at large.
Smt. Bharti Dangre, the learned Advocate
appearing for the respondent-Nagpur Improvement
Trust, seeks ten days' time to file such affidavit and
place on record the original documents.
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Hence, we fix this matter for further hearing on
12-8-2016.
In the meantime, we expect the
respondent-developer not to proceed with the
construction on the so-called internal road. However,
Shri Sunil Manohar, the learned Senior Advocate,
assisted by Shri Akshay Naik, Advocate, appearing for
the respondent-developer, makes a statement that any
construction on this road shall be carried out at the
risk of the respondent-developer. Hence, we do not
think that it is now necessary to pass any interim order
in this matter."
Stand of NIT in response to the orders :
22. In response to the aforesaid order, the NIT has filed
an affidavit on 10-8-2016, stating in paras 7 and 8 in clear
terms as under :
"7. It is most respectfully stated before this
Hon'ble Court that the financial estimates which were
prepared for implementation of the scheme have also
been traced in the office of respondent NIT and are
placed for perusal of this Hon'ble Court and is marked
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and annexed hereto as Annexure-R3. The financial
estimates covers the 60 ft road known as 'Mahatma
Gandhi Road' and provides for its widening alongwith
widening of the existing Abhyankar Road on east side.
The abstract of the scheme also provides an estimate of
50 ft road with cement concrete surface joining
Mahatma Gandhi Road and Abhyankar Road. It also
provides for nallah canalization, 20 ft road- back
road."
"8. It is most respectfully stated that respondent
NIT do not dispute about the proposal of having
connectivity between the two roads to be widened
namely Abhyankar Road and Mahatma Gandhi Road.
The existence of the two major roads and the proposed
connectivity can be seen from the communication
addressed to the Secretary, Maharashtra Urban
Development Department in January 1964. The said
communication in detail deals with the scheme as well
as number of objections which were received. A copy of
said communication addressed by the Chairman, NIT
to state Government dated 23.1.1964 is marked and
annexed hereto as Annexure-R4."
Thus, the NIT, in categorical terms, has admitted that the
Scheme provides connectivity between two roads, viz.
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Mahatma Gandhi Road and Abhyankar Road, passing along
the Regal Cinema theater through Buty Marg having the width
of 15 meters (hereinafter referred to as "Internal road" for the
sake of convenience). All the respondents deny the existence
of Internal road, even after filing of such affidavit by the NIT.
Reply to the proposed amendments :
23. The respondents have raised an objection to the
applications for amendment, and it is urged that the
amendment proposed being belated, should be rejected on
that count. According to the respondents, the petitioners were
having the knowledge of the sanction granted to the layout
plan on 27-6-2012 and they have not chosen to raise any
challenge at the time of filing of the petition, to the sanction
granted by the NIT. It is also the contention that the
petitioners have no locus to challenge the sanctioned plan.
24. Heard Shri Subodh Dharmadhikari, the learned
Senior Advocate, assisted by Shri Charuhas Dharmadhikari,
Advocate, for the petitioners; Smt. Bharti Dangre, the learned
Advocate for the NIT; and Shri S.S. Shahane, the learned
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Advocate for some of the owners. Shri Sunil Manohar, the
learned Senior Advocate, assisted by Shri Akshay Naik,
Advocate, appearing for the developers and some of the
owners, led the arguments; and Shri M.G. Bhangde, the
learned Senior Advocate, assisted by Shri R.M. Bhangde,
Advocate, for some of the owners, adopted the arguments of
Shri Sunil Manohar and made the additional submissions.
Preliminary objections :
25. The respondents have raised the preliminary
objections as to the delay and laches claiming dismissal of the
petition on that sole ground. Inviting the attention of this
Court to the objection submitted by the tenants to the NIT on
21-12-2011, Shri M.G. Bhangde has urged that the absence of
50 feet Internal road in the building plan submitted was to the
knowledge of the petitioners. The layout plan was sanctioned
on 15-5-2012, the building permit was granted on
27-6-2012, which was revised on 11-12-2014, and the petition
was filed on 6-5-2015. The civil applications for amendment
of petition challenging the sanctioned plan were filed on
11-8-2015.
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26. Relying upon the decisions of the Apex Court in the
cases of (i) Printers (Mysore) Ltd. v. M.A. Rasheed and others,
reported in (2004) 4 SCC 460; (ii) Sawaran Lata and others v.
State of Haryana and others, reported in (2010) 4 SCC 532;
and (iii) Leelawanti and others v. State of Haryana and others,
reported in (2012) 1 SCC 66, it is urged by the respondents
that the petition is liable to be dismissed on the ground of
delay and laches. The respondents have also raised an
objection to allow the applications for amendment and have
also raised the question of locus of the petitioners to challenge
the sanction to the layout and the grant of building permit.
Reply to preliminary objections :
27. Shri Subodh Dharmadhikari for the petitioners has
relied upon the decision of the Apex Court in the case of
Tukaram Kana Joshi and others, through Power-Of-Attorney
Holder v. Maharashtra Industrial Development Corporation and
others, reported in (2013) 1 SCC 353, for the proposition that
the dismissal of the petition on the ground of delay and laches
is a mode of exercise of discretion, which depends upon the
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facts and circumstances of each case and the challenge cannot
be decided on the basis of any hard and fast rule. He submits
that there can be mitigating factors of continuing cause of
action, the decision under challenge shocking the judicial
conscience, and the creation of third-party interest in the
matter. According to him, the simpliciter delay cannot be the
sole ground for dismissal of the petition. He further submits
that no particulars are provided as to the stage of construction,
the number of parties in whom in the interest is created, the
stage of actual construction on the Internal road, etc.
On Merits - Rival Contentions :
28. The impugned notices of demolition have been issued
to implement the Scheme as per the layout plan sanctioned on
15-5-2012, and the building permit granted on 22-6-2012 and
revised on 11-12-2014. The layout plan and the building
permit do not indicate the existence of Internal road, as was
shown in the Scheme sanctioned on 23-1-1964 by the State
Government under Section 44 of the NIT Act. The challenge of
the petitioners is on the ground that issuance of notices of
demolition of part of the shop blocks to implement the final
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layout plan and the building permit, to the extent of
dispensing with the requirement of Internal road with a view
to commercially exploit the entire area, is contrary to the
Scheme and hence the notices are liable to be set aside.
According to the petitioners, the respondents having agreed to
provide Internal road in the compromise accepted by the Apex
Court on 8-4-2002, that too after coming into force of
development plan for the city of Nagpur cannot now raise a
plea that providing of Internal road is contrary to the
development plan.
29. According to the respondents, the Scheme sanctioned
by the State Government under Section 44 of the NIT Act on
23-1-1964 to the extent it runs contrary to the final
development plan prepared and sanctioned under Section 31
of the Maharashtra Regional and Town Planning Act ("MRTP
Act"), initially in the year 1976 and revised in the year 2000,
cannot be implemented. According to them, the Internal road
is of 15-meter width, which can be described as D.P Road, and
unless a provision is made for such a road in the development
plan, the Scheme containing such Internal road cannot be
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implemented. They submit that there is no provision for such
Internal road in the final development plan. According to
them, Section 39 of the MRTP Act, which came into force in
the year 1966, clearly provides that the Schemes already
framed have to be brought in conformity with the proposals
made in the final development plan, and this has been done by
dispensing with the requirement of Internal road under the
Scheme. It is not disputed that the area, which was earmarked
for 15-meter (50 feet) Internal road, is being commercially
exploited under the sanctioned layout plan.
Decision on preliminary objections :
30. Before dealing with the controversy on the merits of
the matter, we would like to dispose of the preliminary
objections. The representation dated 21-12-2011, to which
Shri M.G. Bhangde has made a reference, was submitted prior
to the sanction of the layout and the grant of building permit.
If the objection of the respondents in respect of locus of the
petitioners to challenge the sanction of the layout and the
grant of building permit is to be accepted, then it would purely
be a matter between the developers and the owners on one
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hand and the NIT on the other hand. The cause of action for
the petitioners to file the petition would arise only upon
issuance of the notices to the petitioners for demolition of the
part of portion in their occupation in contravention of the
Scheme of which the implementation is being sought in the
petition. The notices of demolition were issued on
24-4-2015. The petition was filed on 6-5-2015 and the
amendment applications were filed on 11-8-2015 after getting
the copies of the sanctioned layout plan and the building
permit. The petition cannot, therefore, be dismissed on the
ground of delay and laches.
31. No doubt, the petitioners are the residents of the
same area and were knowing the activities of construction
which were being carried out. However, the reply to the
applications for amendment is totally silent as to the stage of
construction, at least on the Internal road, around which the
dispute revolves. There is nothing on record to show that the
third party interest is created in favour of any person and
hence the petition cannot be dismissed on the ground of delay
and laches. In the decision of the Apex Court in the case of
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Tukaram Kana Joshi, cited supra, it has been held that the
question of dismissal of writ petition on the ground of delay
and laches needs to be decided in the facts and circumstances
of each case and the exercise of discretion depends upon the
mitigating factors, continuity of cause of action, creation of
third party interest, etc. The exercise of discretion should not
be to defeat the ends of justice. In view of this position, the
principles laid down by the Apex Court in the cases of
(i) Printers (Mysore) Ltd., (ii) Sawaran Lata, and
(iii) Leelawanti, cited supra, are not applicable to the facts of
this case.
32. Perusal of the notices impugned in this petition
shows that the NIT wanted to implement the terms of the
Government Resolution dated 7-10-1997 along with the terms
and conditions incorporated in the compromise pursis,
accepted by the Apex Court on 8-4-2002. At the very
beginning, Shri Subodh Dharmadhikari, the learned Senior
Advocate for the petitioners, has made it clear that the
petitioners are the beneficiaries of the Scheme and they are
made partners in the Scheme by way of the Government
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Resolution dated 7-10-1997. Hence, the petitioners do not
want to press other challenges if the Scheme published under
Section 45 of the NIT Act is to be implemented as it is, with
the provision of Internal road, which provide frontage to shop
owners. In view of this, the locus of the petitioners to
maintain this petition cannot be doubted.
Decision on amendment applications :
33.
There is no reason to oppose the prayer for
implementation of the terms and conditions of the
Government Resolution dated 7-10-1997. Even in the absence
of sanction granted on 27-6-2012 and revised on 11-12-2014,
according to us, if this Court is otherwise satisfied, the
petitioners cannot be denied the relief of setting aside the
notices impugned in the petition. The basic question involved
is of the implementation of the Scheme in force prior to
coming into force of the MRTP Act. If the said Scheme is
required to be implemented as it is, then the impugned notices
based upon the sanction of the layout to the extent contrary to
the Scheme, will have to be ignored. Hence, in our view, even
otherwise the question of implementation of the Scheme as per
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the sanctioned layout plan is required to be considered in the
petition. We, therefore, allow both these civil applications.
The amendment be carried out within a period of two weeks
from today.
Questions for determination :
34. On merits of the matter, the following two questions
fall for our determination :
(1) Whether mere absence of proposal of "Internal
road" in the final development plan under
sub-section (6) of Section 31 of the Maharashtra
Regional and Town Planning Act and its existence in
the Scheme, published under Section 45 of the
Nagpur Improvement Trust Act, can be termed as
'variation' or 'modification', as contemplated by
Section 39 of the MRTP Act?, and
(2) Whether the impugned notices of demolition,
based upon final layout plan sanctioned on
15-5-2012 and the building permit granted on
27-6-2012 and revised on 11-12-2014, need to be set
aside for want of Internal road, which was the part of
the Scheme sanctioned under Section 44 of the NIT
Act?
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Survey of the relevant provisions of NIT Act
:
35. The respondent No.2-NIT is a statutory body
constituted under Section 4 of the NIT Act and it is created
and incorporated under Section 3 with a duty of carrying out
the provisions of the NIT Act subject to the conditions and
limitations provided therein. Chapter IV deals with the
improvement schemes, and Section 26 therein provides for the
matters for improvement schemes. Section 27 deals with the
types of improvement schemes, which is produced below :
"27. Types of improvement schemes.
An improvement scheme shall be of one of the
following types or may combine any two or more of
such types, or of any special features thereof, that is to
say,-
(a) a general improvement scheme;
(b) a re-building scheme;
(c) a re-housing scheme;
(d) a street scheme;
(e) a deferred street scheme;
(f) a development scheme;
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(g) a housing accommodation scheme;
(h) a future expansion or improvement
scheme;
(i) a drainage or drainage including sewage
disposal scheme."
A "Street Scheme" is one in clause (d) above amongst other
types of schemes.
36.
Section 31 of the NIT Act relates to street scheme,
and it being relevant, is reproduced below :
"31. Street Scheme.
(1) Whenever the Trust is of opinion that, for the
purpose of-
(a) Providing building sites, or
(b) remedying defective ventilations, or
(c) creating new or improving existing means
of communications and facilities for
traffic, or
(d) affording better facilities for conservancy
and drainage,
it is expedient to lay out new streets or alter
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existing streets (including bridges, causeways
and culverts), the Trust may pass a resolution to
that effect, and shall then proceed to frame a
street scheme for such area as it may think fit.
(2) A street scheme may, within the limits of the
area comprised in the scheme provide for-
(a) the acquisition of any land which will, in
the opinion of the Trust, be necessary for its
execution;
(b) the re-laying out of all or any of the lands
so acquired, including the construction and
re-construction of buildings by the Trust or by
any other person and the laying-out,
construction and alteration of streets and
thoroughfares;
(c) the draining water-supply, and lighting of
streets and thoroughfares so laid ut, constructed
or altered;
(d) the raising, lowering, or reclamation of
any land vested in, or to be acquired by the Trust
for the purposes of the scheme;
(e) the formation of open spaces for the better
ventilation of the area comprised in the scheme;
(f) the acquisition of any land adjoining any
street, thoroughfare, or open space to be formed
under the scheme."
The objects of formulating a street scheme, as specified in
clauses (a) to (d) of sub-section (1) of Section 31, are to
provide building sites, or remedying defective ventilations, or
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creating new or improving existing means of communications
and facilities for traffic, or affording better facilities for
conservancy and drainage. Such scheme may provide for
acquisition of land necessary for its execution, construction,
re-construction of buildings by the Trust or by any other
person and the laying-out, construction and alteration of
streets and thoroughfares, formation of open spaces for better
ventilation of the area comprised in the scheme, acquisition of
any land adjoining any street, thoroughfare, or open space to
be formed under the scheme, etc., as contained in
sub-section (2) of Section 31 of the NIT Act.
37. Section 44 of the NIT Act empowers the State
Government to grant sanction to such a Scheme and thereafter
to publish the notification under Section 45 therein (which
has the effect of issuing the notification under Section 6 of the
Land Acquisition Act), if such Scheme involves acquisition of
land. Section 45 of the NIT Act deals with the notification of
sanction of improvement scheme and other regarding vesting
of property in Trust, and it runs as under :
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"45. Notification of sanction of improvement
scheme and other regarding vesting of property in
Trust.
(1) Whenever the State Government sanctions an
improvement scheme, it-
(a) shall announce the fact by notification and,
except in the case of a deferred street scheme,
development scheme, or future expansion or
improvement scheme, the Trust shall forthwith
proceed to execute the same;
(b) may order that any street, square, park,
open space or other land, or any part thereof,
which is the property of the Government and
managed by the Central Government or the State
Government, shall, subject to such conditions as
it may impose, vest in the trust for the purpose of
the scheme.
(2) The publication of a notification under
sub-section (1) in respect of any scheme shall be
conclusive evidence that the scheme has been duly
framed and sanctioned."
The effect of granting sanction under Section 44 is provided
under Section 45 of the NIT Act, reproduced above.
Clause (a) of sub-section (1) of Section 45 creates a statutory
obligation upon the NIT to forthwith proceed to execute the
Scheme sanctioned under Section 44 of the NIT Act. The
publication of notification under sub-section (1) of Section 45
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is the conclusive evidence that the Scheme has been duly
framed and sanctioned, as stipulated in sub-section (2)
therein. Any alteration in the Scheme can be done only under
Section 46 of the NIT Act by following the procedure
prescribed under Sections 39, 41 and 43 therein.
Survey of the relevant provisions under the MRTP Act
:
38. During the process of execution of the Scheme, the
MRTP Act was brought into force with effect 11-1-1967.
Chapter III under the said Act deals with the Development
Plan, and Section 21 therein empowers the planning authority
to prepare a draft development plan, the contents of which are
given under Section 22 therein. The provision of Section 22
to the extent it is relevant for the purposes of the present case,
is reproduced below :
"22. Contents of Development Plan
A Development plan shall generally indicate the
manner in which the use of land in the area of a
Planning Authority shall be regulated, and also
indicate the manner in which the development of land
therein shall be carried out. In particular, it shall
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provide so far as may be necessary for all or any of the
following matters, that is to say,--
(a) proposals for allocating the use of land for
purposes, such as residential, industrial, commercial,
agricultural, recreational;
(b) proposals for designation of land for public
purpose, such as schools, colleges and other
educational institutions, medical and public health
institutions, markets, social welfare and cultural
institutions, theatres and places for public
entertainment, or public assembly, museums, art
galleries, religious building and government and
other public buildings as may from time to time be
approved by the Stage Government;
(c) proposals for designation of areas for open
spaces, playgrounds, stadia, zoological gardens,
green belts, nature reserves, sanctuaries and dairies;
(d) transport and communications, such as roads,
highways, park-ways, railways, waterways, canals
and air ports, including their extension and
development; ..."
The development plan prepared under Section 21 of the
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MRTP Act generally indicates the manner in which the use of
land in the area of the planning authority shall be regulated
and also indicates the manner in which the development of
land therein shall be carried out. Section 22 of the MRTP Act
provides for the contents of the development plan, as are
stipulated in clauses (a) to (m) therein.
39. The planning authority has to submit the draft
development plan for the sanction of the State Government
under Section 30 of the MRTP Act. Section 31 therein
empowers the State Government to grant its sanction to such
draft development plan, and the provisions of
sub-sections (1), (4), (5) and (6) of Section 30 to the extent
relevant, are reproduced below :
"31. Sanction to draft Development plan
(1) Subject to the provisions of this section, and
not later than six months from the date of receipt of
such plan from the Planning Authority, or as the
case may be, from the said Officer, the State
Government may, after consulting the Director of
Town Planning by notification in the Official Gazette
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sanction the draft Development plan submitted to it
for the whole area, or separately for any part
thereof, either without modification, or subject to
such modifications as it may consider proper or
return the draft Development plan to the Planning
Authority or as the case may be the said Officer for
modifying he plan as it may direct or refuse to
accord sanction and direct the Planning Authority or
the said Officer to prepare a fresh Development plan.
(4) The State Government shall fix in the
notification under sub-section (1) a date not earlier
than one month from its publication on which the
final Development plan shall come into operation.
(5) If a Development plan contains any proposal
for the designation of any land for a purpose
specified in clauses (b) and (c) of section 22, and if
such land does not vest in the Planning Authority,
the State Government shall not include that in the
Development Plan, unless it is satisfied that the
Planning Authority will be able to acquire such land
by private agreement or compulsory acquisition not
later than ten years from the date on which the
Development plan comes into operation.
(6) A Development plan which has come into
operation shall be called "the final Development
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plan" and shall, subject to the provisions of this Act,
be binding on the Planning Authority."
Sub-section (1) of Section 31 of the MRTP Act empowers the
State Government to grant its sanction to the draft
development plan, as specified therein, and sub-section (4)
empowers the State Government to fix the date on which the
sanctioned plan shall come into operation. In terms of
sub-section (5), reproduced above, if any land does not vest in
the planning authority, the State Government is prohibited
from including in the development plan, any proposal for
designation of such land for a purpose specified in clauses (b)
and (c) of Section 22, unless it is satisfied that the planning
authority will be able to acquire such land by private
agreement or compulsory acquisition not later than ten years
from the date on which the development plan comes into
operation. Under sub-section (6) therein, a draft development
plan upon its sanction by the State Government is called as
"the final development plan" and subject to the provisions of
the said Act, it becomes binding upon the planning authority.
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40. Sub-sections (1) and (2) of Section 37 of the MRTP
Act to the extent relevant, are reproduced below :
"37. Modification of final Development Plan
(1) Where a modification of any part of or any
proposal made in a final Development Plan, the
Planning Authority may, or when so directed by the
State Government shall, within ninety days from the
date of such direction, publish a notice in the Official
Gazette and in such other manner as may be
determined by it inviting objections and suggestions
from any person with respect to the proposed
modification not later than one month from the date of
such notice; and shall also serve notice on all persons
affected by the proposed modification and after giving
a hearing to any such persons, submit the proposed
modification (with amendments, if any), to the State
Government for sanction within one year from the date
of publication of notice in the Official Gazette. If such
modification proposal is not submitted within the
period stipulated above, the proposal of modification
shall be deemed to have lapsed.:
Provided that, such lapsing shall not bar the
Planning Authority from making a fresh proposal.
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(2) The State Government may, make such inquiry
as it may consider necessary and after consulting the
Director of Town Planning by notification in the
Official Gazette, sanction the modification with or
without such changes and subject to such conditions as
it may deem fit, or refuse to accord sanction. If a
modification is sanctioned, the final Development plans
shall be deemed to have been modified accordingly."
Section 37 deals with modification of final development plan.
Sub-section (1) empowers the planning authority to take steps
to modify any part of or any proposal made in the final
development plan with the sanction of the State Government
in the manner specified therein. Sub-section (2) therein
empowers the State Government to carry out the minor
modifications in the final development plan in consultation
with the Director of Town Planning.
41. Much debate has taken place on the provision of
Section 39 of the MRTP Act, and hence it is reproduced
below :
"39. Variation of town planning scheme by
Development Plan
Where a final Development plan contains
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proposals which are in variation, or modification of
those made in a town planning scheme, which has
been sanctioned by the State Government before the
commencement of this Act, the Planning Authority
shall vary such scheme suitably under section 92 to th
extent necessary by the proposals made in the final
Development Plan."
In terms of the aforesaid provision, if the development plan
contains proposals in variation or modification of those in the
town planning scheme in force before the commencement of
the MRTP Act, the planning authority has to take steps to vary
such scheme suitably under Section 92 therein, to the extent
necessary by proposal made in the final development plan.
The condition precedent to attract Section 39 of the MRTP Act
is the existence of proposal under Section 22 in the final
development plan, in variation or modification of those
contained in the Scheme in force before coming into force of
the MRTP Act.
42. Section 92 of the MRTP Act deals with the power to
vary the town planning scheme, and it is reproduced below :
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"92. Power to vary town planning scheme
Notwithstanding anything contained in
section 86, a town planning scheme may at anytime be
varied by a subsequent scheme made, published by
means of notice time and sanctioned in accordance
with this Act:
Provided that, when a scheme is so varied, the
provisions of this Chapter shall so far as may be
applicable, apply to such variation and making of
subsequent scheme and the date of the declaration of
intention, of the Planning Authority to vary the scheme
shall, for the purposes of sections 69, 70, 97, 98 and
100, be deemed to be the date of declaration of
intention to make a scheme referred to in those
sections."
Perusal of the aforesaid provisions reveals that it prescribes
the mode and manner in which the existing town planning
scheme has to be varied. It states that such scheme may be
varied by a subsequent scheme made, published by means of
notice time and sanctioned in accordance with the said Act.
43. Section 42 of the MRTP Act deals with the
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implementation of plans, and it runs as under :
"42. Implementation of plans
On the coming into operation of any plan or
plans referred to in this Chapter, it shall be the duty of
every Planning Authority to take such steps as may be
necessary to carry out the provisions of such plan or
plans."
On coming into force of the development plan, Section 42
casts a duty upon every planning authority to take such steps
as may be necessary to carry out the provisions of such
development plan.
44. Section 43 of the MRTP Act deals with the restrictions
on development of land, and the relevant portion of it, is
reproduced below :
"43. Restrictions on development of land
After the date on which the declaration of
intention to prepare a Development Plan for any area
is published in the Official Gazette or after the date on
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which the notification specifying any undeveloped area
as a notified area, or any area designated as a site for
a new town, is published in the Official Gazette, no
person shall institute or change the use of any land or
carry out any development of land without the
permission in writing of the Planning Authority."
Once the declaration of intention to prepare a development
plan is published in the Official Gazette, no person can
institute or change the use of any land or carry out any
development of land without permission in writing of the
planning authority.
45. Section 46 of the MRTP Act deals with the provisions
of the development plan to be considered before granting
permission. It runs as under :
"46. Provisions of Development Plan to be
considered before granting permission
The Planning Authority in considering
application for permission shall have due regard to the
provisions of any draft or final plan or proposal,
published by means of notice submitted or sanctioned
under this Act:
Provided that, if the Development Control
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Regulations for an area over which a Planning
Authority has been appointed or constituted, are yet to
be sanctioned, then in considering application for
permission referred to in sub-section (1), such
Planning Authority shall have due regard to the
provisions of the draft or sanctioned Regional plan, till
the Development Control Regulations for such area are
sanctioned :
Provided further that, if such area does not
have draft or sanctioned Regional plan, then
Development Control Regulations applicable to the
area under any Planning Authority, as specified by the
Government by a notification in the Official Gazette,
shall apply till the Development Control Regulations
for such area are sanctioned."
While considering the application for permission for
development, the planning authority has to have due regard to
the provisions of the draft or final plan or proposal published
by means of notice, submitted or sanctioned under the said
Act.
46. Chapter V of the MRTP Act deals with the town
planning scheme, and Section 59 therein relates to
preparation and contents of town planning scheme. The said
provision being relevant, is reproduced below :
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"59. Preparation and contents of town planning
scheme
(1) Subject to the provisions of this Act or any other
law for the time being in force--
(a) a Planning Authority may for the purpose of
implementing the proposals in the final Development
Plan, or in respect of any land which is likely to be in
the course of development or which is already built
upon prepare one or more town planning scheme for
the area within its jurisdiction, or any part thereof;
(b) a town planning scheme may make provision for
any of the following matters, that is to say--
(i) any of the matters specified in section 22;
(ii-b) layout of new streets or roads, construction,
diversion, extension, alteration, improvement and
closing up of streets and roads and discontinuance
of communications;
(ii-c) the construction, alteration and removal of
buildings, bridges and other structures;
(ii-d) the allotment or reservation of land for
open spaces, gardens, recreation grounds, schools,
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markets, greet-belts, dairies, transport facilities
and public purposes of all kinds.
(2) In making provisions in a draft town planning
scheme for any of the matters referred to in clause (b)
of sub-section (1), it shall be lawful for a Planning
Authority with the approval of the Director of Town
Planning and subject to the provisions of section 68 to
provide for suitable amendment of the Development
Plan."
Clause (a) of sub-section (1) of Section 59 empowers the
planning authority for the purpose of implementing the
proposals in the final development plan to prepare one or
more town planning schemes for the area within its
jurisdiction or any part thereof. Clause (b) thereunder deals
with the matters, which are to be provided for in the town
planning schemes, which included in sub-clause (i), any
matters specified in Section 22; and in sub-clause (ii-b), layout
of new streets or roads, construction, diversion, extension,
alteration, improvement and closing up of streets and roads
and discontinuance of communications.
Sub-section (2) empowers the planning authority to provide
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for suitable amendment of the development plan with the
approval of the Director of Town Planning to implement the
provisions of the draft town planning scheme for any of the
matters referred to in clause (b) of sub-section (1).
Dual role of NIT - A planning authority under the MRTP
Act and a local authority under the
NIT Act
:
47. The Nagpur Improvement Trust was declared to be
the "planning authority", as defined under Section 2(15) of
the MRTP Act, and it continued to be so from the date of
coming into force of the said Act, almost for the entire area of
the city of Nagpur till 27-2-2002, when the State Government,
by issuing notification in the Official Gazette, appointed the
Nagpur Municipal Corporation to exercise the powers of the
planning authority under the MRTP Act in the entire area
under its jurisdiction. The relevant portion of the said
notification is reproduced below :
" Now, therefore, in exercise of the powers conferred
upon it by section 2(15) of the said Act and in
supersession of the said Notification, the Government
of Maharashtra hereby;
(a) permits the Nagpur Municipal Corporation to
exercise the powers of a Planning Authority under
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the said Act in the entire area under its jurisdiction
except the areas covered by the following schemes of
the Nagpur Improvement Trust (NIT), for which NIT
will continue to exercise the powers of a Planning
Authority under the said Act.
Sr.No. Name of the Scheme Total area notified
under the scheme
(Approx.) in Hectares
(1) (2) (3)
1. Eastern Industrial Area Street 320.60
Scheme.
Itwara Station Road Street
Scheme.
4.77
3. Sitabuldi (West) Improvement 6.15
Scheme.
4. Abhyankar Road and Buti 3.24
Mahal Steet Scheme.
5. Wathoda Extension Housing 170.00
Accommodation Scheme (New
Scheme).
6. Shivangaon Jaitala Township 257.00
(New Scheme).
7. Green Belt Control Scheme. 6447.00
Total : 7208.76
(b) orders that, notwithstanding (a) above, in
areas which come under the purview of Nagpur
Municipal Corporation as Planning Authority, NIT will
not be required to secure development permission from
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the Nagpur Municipal Corporation with regard to
developments undertaken by it in its capacity as a
development agency, and for this limited purpose, it
shall function as Planning Authority for such
developments.
By order and in the name of the Governor of
Maharashtra
P.V. DESHMUKH,
Deputy Secretary to Government."
The aforesaid notification continues to designate the NIT as
the planning authority for the purpose of seven schemes,
which it framed under the NIT Act, including the Scheme in
question, which is "Abhyankar Road & Buty Mahal Street
Scheme". Thus, it is the NIT, which prepared the final
development plan for the city of Nagpur, exercised and
continues to exercise till date all powers of the planning
authority under the MRTP Act in respect of the area covered
by the Scheme. Simultaneously, it is also under the statutory
obligations conferred upon it under the NIT Act to execute all
the seven schemes notified under the aforesaid notification
dated 27-2-2002. The NIT exercises dual authority over the
same area. The NIT is, therefore, supposed to be well aware
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of the factual position, the provisions of law under the NIT Act
and MRTP Act and the legal solutions in case of conflict
between the two enactments.
Decision in case of inconsistency :
48. The question of conflict, variance, inconsistency
between the provisions of the town planning scheme in force
prior to coming into force of the MRTP Act and the proposals
contained in the final development plan brought into force
under the MRTP Act has been dealt with by the Apex Court in
the decision in the case of Manohar Joshi v. State of
Maharashtra and others, reported in (2012) 3 SCC 619, cited
by Shri Sunil Manohar. It is held in para 90 as under :
"90. This section will have to be read along with the
requirement provided in Section 39. Section 39
provides for a TP scheme sanctioned and subsisting
prior to the development plan. The section mandates
that such a prior scheme shall be varied to the extent
necessary by the proposals made in the final
development plan. Section 43 provides that once the
declaration of intention to prepare a development plan
is gazetted, no development contrary thereto can be
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permitted. As provided under Section 59(1)(a), the
town planning scheme is to be prepared for the
purpose of implementing the proposals in the final
development plan. Therefore, even if such a variation
as directed under Section 39 does not take place, the
land cannot be put to use in any way in contradiction
with the provision in the DP plan."
49. What we gather from the aforesaid decision of the
Apex Court is that the provision of Section 39 under the MRTP
Act is mandatory, and where the final development plan
contains the proposals, which are in variance or modification
of those made in the town planning scheme, which has been
sanctioned by the State Government before the
commencement of the said Act, the planning authority shall
vary such scheme suitably under Section 92 to the extent
necessary by the proposals made in the final development plan.
Shri Sunil Manohar is right in urging that even if such exercise
is not carried out by the planning authority, the land cannot
be put to use in any way in contradiction with the provisions
in the development plan.
50. The question of conflict between the Scheme
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published under Section 45 of the NIT Act and the
development plan under Section 31 of the MRTP Act has to be
resolved as per the guidelines contained in Section 39 of the
MRTP Act. In view of the decision of the Apex Court in
Manohar Joshi's case, cited supra, we are left with no choice
but to hold that in case of such variance or modification, as
contemplated by Section 39 of the MRTP Act, the provisions
contained in the development plan shall prevail and the
provisions contained in the town planning scheme would
stand varied only to the extent of inconsistency or variation
with the proposals made in the final development plan. The
statutory obligation created upon the NIT under Section 45 of
the NIT Act to execute the Scheme to the extent it is not in
variation or modification of the proposals in the final
development plan, continues to subsist and can be enforced.
Provisions of the Scheme
and the effect of its publication
under Section 45 of the NIT Act :
51. After taking survey of the relevant provisions of the
NIT Act as well as the MRTP Act, we would like to crystallize
the position for the purposes of deciding the controversy
involved in the present case. The Nagpur Improvement Trust
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Act, 1936 was brought into force with effect from 1-1-1937,
and the NIT is the local authority entrusted with the duty of
carrying out the provisions of the NIT Act and it continues to
operate as such till this date. On 29-10-1960, the Board of
Trustees of NIT passed a resolution to frame a Scheme, i.e.
"Abhyankar Road Widening & Buty Mahal Street Scheme"
under Section 31 of the NIT Act, invoking acquisition of lands
Khasra Nos.320 and 315 (Part) of Mouza Sitabuldi, Nagpur
("land in question") as per the list and the map enclosed
therewith. The existing use of land in question on the date of
such Scheme was essentially for residential purposes with
Internal road, one cinema theatre and the peripheral area
being used for shops-cum-office purposes.
52. The objects of the Scheme published under Section 45
of the NIT Act to be achieved in terms of clauses (a) to (d) of
sub-section (1) and the matters to be provided in the Scheme
in terms of clauses (a) to (f) under sub-section (2) of
Section 31 of the NIT Act, are reflected in the Scheme. The
Scheme provided for the building sites, viz. the
shops-cum-office complex covering the internal area of the
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Scheme, removing existing ugly and ill-ventilated premises on
Mahatma Gandhi Road and Abhyankar Road, parking space
open to sky, etc. It provides for creating new or improving
existing means of communications and facilities for traffic by
way of Internal road of 50 feet (15 meters) wide to join
Mahatma Gandhi Road on the north and Abhyankar Road on
the west to circulate the traffic from Variety Island at the
junction of 50 feet road with Mahatma Gandhi Road and
Abhyankar Road to avoid the congestion, apart from other
roads.
53. The said Scheme was sanctioned under Section 44
and published under Section 45 of the NIT Act on 23-9-1964,
creating a statutory obligation upon the NIT to execute the
Scheme as it is, unless it is altered and modified under
Section 46 of the said Act. Shri Sunil Manohar, who led the
arguments for the respondents, also stated in response to our
query that the provision of Internal road could not be
dispensed with, in the absence of exercise under Section 46 of
the NIT Act. It is thus clear that in the absence of the
development plan under Section 31 of the MRTP Act, the
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Scheme published under Section 45 of the NIT Act was
required to be executed by the NIT as it is, with the provision
of Internal road without any change, alteration or
modification.
Provisions of the development plan and its effect under
the MRTP Act
:
54. The NIT prepared the first development plan, which
was brought into force on 3-6-1976 and revised on
4-5-1989 and 7-1-2000, copies of parts of such development
plan are at Annexures 29-A and 29-B. The development plan
indicates the boundaries of the Scheme area with punctuated
lines. The peripheral areas on the southern boundary on
Mahatma Gandhi Road and the northern boundary on
Abhyankar Road are in blue colour for commercial purpose,
whereas the internal area of the Scheme is in yellow colour for
residential purpose. The "Reference" below the map shows
"N.I.T. Scheme Boundary" in punctuated lines. The Scheme
area within its boundaries does not make any provision for
Internal roads in the development plan in terms of clause (d)
of Section 22, as existed in the Scheme in force prior to coming
into force of the MRTP Act.
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55. Once the final development plan comes into
operation under sub-section (4) of Section 31, Section 42 of
the MRTP Act casts a duty upon the planning authority to
carry out the provisions of such plan. In terms of Section 46
therein, the planning authority shall have due regard to the
provisions of the development plan while granting permission
for development. It indicates that no permission contrary to
the provisions of such plan can be granted unless proposals in
the development plan are accordingly modified under
Section 37 of the MRTP Act.
Whether there is actual inconsistency - to what extent :
56. Inconsistency and variation in the Scheme under
Section 45 of the NIT Act and the development plan under
Section 31 of the MRTP Act became apparent. The Scheme for
shop-cum-office complex was to be executed in the area
meant for residential use and though it was possible prior to
coming into force of the development, it was not possible to
execute such Scheme contrary to the provisions contained in
the development plan. The construction of complex for
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commercial purposes was not possible in residential zone.
The option was either to alter the Scheme for residential
purpose or to carry out suitable modification to provide user
for commercial purpose under Section 37 of the MRTP Act in
the development plan.
Removal of inconsistency :
57. Accordingly, a notification under sub-section (2) of
Section 37 of the MRTP Act was issued on 22-6-2007, and the
relevant portion of it, is reproduced below :
" "Now therefore, in exercise of the powers
conferred under subsection 2 of the section 37 of the
said Act, Govt. hereby sanctions the said modification
of the said lands and for that purpose amends the
above referred notification dated 7th January, 2000 by
inserting the following new entry in its appended
schedule of modification.
"Abhyankar road passing through the land
Kh.No.320, 315 (part) Mouza Sitabardi is widened
from 12 mt. To 24 mt. and the area admeasuring
15028.29 sq.mt. of Kh. No.320, 315 (part) Mouza
Sitabardi is deleted from Residential Zone and lands so
released included in Commercial Zone and said lands
are deleted from Congested boundary as shown on
plan". ''
In fact, the aforesaid notification brings out major changes,
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viz. - (i) widening of Abhyankar Road from 12 meters to
24 meters (40 feet x 80 feet), (ii) the internal area of the
Scheme is deleted from residential zone and included in the
commercial area, and (iii) the Scheme area is deleted from
congested boundary and released in non-congested area.
Thus, the inconsistency was removed. The proposals in the
development were brought in tune with those in the Scheme so
that the Scheme is effectively implemented.
Result of the demarcation of Scheme
area in the
development plan :
58. In the development plan under sub-section (4) of
Section 31 of the MRTP Act, we found that all the areas
covered by different Schemes, including the Scheme in
question, were indicated by the punctuated lines. We
considered the situation, as depicting the complete
demarcation for the NIT scheme in the revised development
plan. Our attention was invited by Shri Subodh
Dharmadhikari for the petitioners, to the other parts of the
original revised development plan produced before us to urge
that in respect of other schemes of the NIT, the areas are
earmarked with similar punctuated lines. In our view, the
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punctuated lines in the final development plan with revisions
thereto clearly denote the declaration of the intention of the
NIT, as a "planning authority", as defined under Section 2(15)
of the MRTP Act, to leave area of the Scheme to be developed
by the NIT as a "local authority" under the provisions of the
NIT Act. However, we called upon the NIT to file an affidavit
on these two aspects to make its stand clear.
The stand of NIT :
59. On 6-9-2016, the NIT has filed an affidavit. In
respect of point No.(i), the affidavit takes the stand as under :
"(1) ... The Development Plan framed in the year,
1976 as well as the Development Plan sanctioned in
the year, 2001 do not contain any provision for any of
the roads which are mentioned above namely, the road
connecting Mahatma Gandhi Road to Abhyankar
Road, the pedestrian back road or occupied back road
which was mentioned in the proposed scheme framed
by the N.I.T. in the year, 1961. I state before this
Hon'ble Court that none of the 3 roads which were
proposed in the Scheme were included in the Layout
Plan which is sanctioned on 15-05-2012 nor
construction of these roads is being implemented at the
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site. In view of the fact that State Government has
permitted the development on 'Reconstituted Plot'."
As regards point No.(ii), the stand is taken as under :
"(2) As regards the second query by this Hon'ble
Court in respect of the reference made in the
Development Plan of 2001 to the "N.I.T. Scheme
Boundary", I state that the first Development Plan of
the City which was sanctioned in the year, 1976 did
not contain any such reference. In the Development
Plan sanctioned in the year 2001, the reference is made
to the "N.I.T. Scheme Boundary" and it is indicated by
punctuated lines. I state that the total piece of land
covered by various Schemes under the N.I.T. is
demarcated by these punctuated lines in the
Development Plan only for the sake of identification
and it has no more significance than this. However,
the development of this portion is to be undertaken by
the Nagpur Improvement Trust which is a Planning
Authority strictly in conformity with the Development
Plan. I state that the punctuated lines only indicate the
boundaries of the Schemes which were under the
control of N.I.T. The development which is carried out
in all the Schemes which have been demarcated in the
Development Plan has been carried out in conformity
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with the Development Plan."
In brief, the stand on point No.(i) is that the development plan
prepared in the year 1976 and revised in the year 2001 does
not contain any provision for any of the three roads, which
were proposed in the Scheme. On the another aspect, the
stand, in brief, is that the punctuated lines only indicate the
boundaries of the Scheme under the control of the NIT and it
has no more significance than this. The development therein
has to be carried out in conformity with the development plan.
At this stage, we only express our inability to accept this stand
and doubt the bona fides in taking such stand. The reasons in
respect of it shall find place in paras to follow.
Decision on the stand of NIT in the affidavit :
60. We examine firstly, on the basis of the provisions of
law, the stand taken by the NIT that the punctuated lines in
the development plan indicate only boundaries and it has no
more significance than this. One of the objects of the MRTP
Act, as can be seen from the preamble, is to prepare the
development plan with a view to ensure that the town
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planning scheme is made in a proper manner and its
execution is made effective. Hence, the provisions of the
development plan and those of the town planning scheme are
complementary and have to be construed as giving way to
each other as far as possible, but recognizing superiority of
development plan to the extent of conflict.
61. Significantly, as has been rightly pointed out by
Shri Subodh Dharmadhikari for the petitioners, Section 22 of
the MRTP Act (reproduced earlier) regarding the contents of
the development plan is conceptual, "generally" indicating
zones, like industrial, commercial, residential, etc., and the
reservation for different purposes. It does not contemplate the
contents or the provisions of any town planning scheme to be
reflected in the development plan. Such conspicuous absence
raises an inference that the preparation of the Scheme, its
contents, the mode and manner in which it is to be
implemented or executed, etc., are the matters left to be
decided by the local authority or planning authority, i.e. the
NIT in the present case, in accordance with the provisions of
the NIT Act or the MRTP Act, and the rules and regulations
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framed therein.
62. Shri Subodh Dharmadhikari for the petitioners has
invited our attention to the provisions of Section 59 of the
MRTP Act (which is already reproduced above) specifically
dealing with the preparation and contents of the town
planning scheme. Sub-section (1) therein opens with the
expressions "Subject to the provisions of this Act or any other
law for the time being in force". Clause (a) therein indicates
that the town planning schemes are required to be prepared
for implementing the proposals in the development plan.
Clause (b) therein deals with the matters at serial Nos.(i) to
(iv) for which a town planning scheme may make provision
for and it includes at serial No.(i), any of the matters specified
in section 22, and at serial Nos.(ii-b), layout of new streets or
roads, construction, diversion, extension, alteration,
improvement and closing up of streets and roads and
discontinuance of communications.
63. It is thus clear to us that the provision of
Section 22 of the MRTP Act is general in nature indicating the
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manner in which the use of land shall be regulated, whereas
the provision of Section 59 specially deals with the
preparation and the contents of the town planning scheme.
The development plan is not expected to contain any matters
to be provided in the town planning scheme under Section 59.
While preparing a town planning scheme, a provision may be
made in respect of any matters provided under Section 22 so
as to implement the proposals in the development plan. The
object of preparation of development plan, as seen from the
preamble, is to ensure that the town planning scheme is
prepared under Section 59 in a proper manner and its
execution is made effective. But if the development plan
contains any provision, the mandate is that any contrary
provision in the town planning scheme shall be inoperative.
The result of such complementary nature of both the
provisions would be that the development plan leaves the area
of the Schemes to be developed by the NIT, to execute the
provisions of the Scheme independently, to the extent it is not
inconsistent with any express provision in the development
plan.
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64. It is not the stand of the NIT that the area of the
Scheme marked with punctuated lines in the development plan
are not the part and parcel of it or that the punctuated lines
were drawn after sanction either to the development plan or
the revisions to it. The inclusion of "N.I.T. Scheme Boundary"
with punctuated lines in the 'Reference' below the plan clearly
reflects the fallacy in raising a plea that no significance can be
attached to it. Not only that, but the conspicuous absence of
the contents or the provisions of any town planning scheme in
the development plan is clearly indicative of the fact that the
Scheme area is earmarked by punctuated lines in the
development plan for being developed by the NIT as per the
Scheme published under Section 45 of the NIT Act. Therefore,
the stand taken by the NIT that punctuated lines indicate only
boundaries and it has no more significance, is not legal and
correct.
Whether Internal
road in the
Scheme vanishes
automatically in view of the development plan :
65. In our view, it is not the intention of the Legislature
under Section 22 read with Section 39 of the MRTP Act to
automatically wipe out the provisions of the Scheme without
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any express provision to the contrary in the development plan.
The only rider is that the execution of the Scheme shall not be
contrary to the proposals or the provisions in the development
plan. Each provision contained in the Scheme will have to be
therefore examined or tested for its existence with reference
to the contrary provision contained in the development plan to
find out the actual inconsistency or variation or modification.
To the extent of such inconsistency, variation or modification
only, the provisions of the Scheme shall become inoperative.
Merely because one out of several provisions are found to be
inconsistent, the entire Scheme does not automatically vanish.
The inconsistency in the present case was only in respect of
the manner in which the use of the land in the Scheme area to
be regulated, i.e. whether for residential or commercial. That
has been removed. In the absence of any provision contrary to
the Internal road, shown in the development plan, it cannot be
said that the provision of Internal road vanishes automatically.
The stand taken by the NIT in its affidavit that the
development plan does not contain any provision for Internal
road, loses its significance.
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66. Our attention was invited by Shri M.G. Bhangde to
the proposals of Mahatma Gandhi Road and Abhyankar Road
along with the notification under sub-section (2) of Section 37
of the MRTP Act thereby widening Abhyankar Road from 12
meters to 24 meters, to urge that the Internal road is neither
shown in the development plan nor any modification is done
in it. As we see, these two roads were in existence even
before the preparation of the development plan. The
development plan merely depicted the position existing, and it
was not a proposal to create a new road under clause (d) of
Section 22 of the MRTP Act. These two roads, as stated
earlier, were beyond the boundaries of the Scheme area and
even in the development plan, those are shown beyond the
"N.I.T. Scheme Boundary". Obviously, to change the width
from 12 meters to 24 meters of Abhyankar Road, included in
the development plan and called as "D.P. Road", the
modification under sub-section (2) of Section 37 of the MRTP
Act necessitated. The Internal road, not being the part of the
development plan, there was no question of making any
modification for that purpose in the development plan. The
contention of Shri M.G. Bhangde is, therefore, rejected.
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Whether Internal road
can be a layout road?
67. For some time, we also thought that the Internal
road could be a layout road, and the learned counsels also
addressed us on that aspect of the matter. We put a specific
question to Smt. Bharti Dangre for the NIT as to whether each
and every road in the small layout or in the town, irrespective
of its length and breadth is required to be shown or displayed
in the final development plan, or whether any specifications
are laid down for showing such roads, highways, park-ways,
etc., in the development plan for the city of Nagpur. It is
informed to us that all the roads in the town having width of
more than 12 meters are required to be shown in the
development plan. However, no such provision is brought to
our notice in spite of granting sufficient time.
68. Shri M.G. Bhangde for some of the respondents
invited our attention to the provisions contained in Regulation
No.12 dealing with the means of access, contained in the
Development Control Regulations, 2000 for the city of
Nagpur. The layout roads, as we gather from the said
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Regulation, are those meant for providing access to every
building existing or proposed, as required by the Regulation.
Such layout roads are also distinct from the "D.P. Roads". The
Internal road in the Scheme is not a means of access, but it is
provided in the Scheme as a thoroughfare to improve existing
means of communications and facilities for the traffic. We,
therefore, rule out the possibility of the Internal road being a
layout road.
No inconsistency - Section 39 of MRTP Act, not attracted :
69. The Maharashtra Regional and Town Planning Act,
1966 was brought with force on 11-1-1967 and it does not
repeal the NIT Act. In the light of this position, the intention
of the Legislature has to be ascertained. In our view, the clear
intention of the Legislature is to empower the planning
authority to make proposals in terms of clause (d) of
Section 22 of the MRTP Act for the roads in the development
plan, which is distinct from the power of the planning
authority or the local authority to prepare a town planning
scheme either under the provision of Section 59 the MRTP Act
or under Section 31 of the NIT Act, consisting of roads, like
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Internal road, which may or may not be a part of the final
development plan. We, therefore, accept the contention of
Shri Subodh Dharmadhikari that there is a distinction between
the proposal for the road in the development plan in
clause (d) of Section 22 of the MRTP Act to be called as "the
D.P. Road" and the road to be created or altered in the Scheme
either under Section 59 of the MRTP Act or under Section 31
of the NIT Act, which can be called as "the Scheme road". We
reject the contention raised by Smt. Bharti Dangre,
Shri Sunil Manohar and Shri M.G. Bhangde for the
respondents that the Scheme road has to be a part and parcel
of the development plan. In view of this, the absence of
provision/proposal for Internal road in terms of clause (d) of
Section 22 of the MRTP Act in the development plan on one
hand and its existence in the Scheme published under
Section 45 of the NIT Act on the other hand, cannot be termed
as inconsistency, variation or modification so as to attract the
provisions of Section 39 of the MRTP Act. The question No.(1)
is answered accordingly.
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" Internal road
", a soul or basic structure of
the Scheme
-
cannot be altered :
70. In fact, as we see from the features of the Scheme
provided to us by the NIT and the proposals in the
development plan, two roads, viz. - (i) Mahatma Gandhi
Road, and (ii) Abhyankar Road, which existed earlier, are
shown in the development plan. Both the aforesaid roads are
beyond the boundaries of the Scheme. The Internal road is
inside the boundaries of the Scheme area, provided as
thoroughfare to improve the existing means of
communications and facilities for traffic and it does not find
place in the development plan. Thus, the execution of the
Scheme involves four major functions, viz. - (i) providing huge
commercial complex inside the Scheme area to accommodate
the tenants apart from others, (ii) widening of Mahatma
Gandhi Road and Abhyankar Road outside the Scheme area,
(iii) providing 50 feet (15 meters) wide Internal road
along with other two roads inside the Scheme area to ease out
the traffic and removing congestion, and (iv) to provide space
open to sky for parking. We agree with Shri Subodh
Dharmadhikari for the petitioners that the Internal road
constitutes the soul or basic structure of the Scheme, which
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cannot be altered or dispensed with. It has, therefore, to be
held that the Scheme containing Internal road has to be
executed as it is, unless it is altered or modified under
Section 46 of the NIT Act.
Whether entire Scheme
became non-existent by passage of
time and the changes? :
71. After the final development plan was brought into
force, the NIT had passed a resolution on 31-12-1981
on page 685 of the paper-book to implement the said Scheme
by immediately acquiring the lands in question. Such decision
has been reiterated on 17-8-1984 in the meeting of the NIT,
the minutes of which, are at page 679. In the affidavit filed by
the NIT on 14-2-2002 in response to Writ Petition No.688 of
2002 filed by the tenants on Abhyankar Road, a specific stand
is taken in para 9, which is reproduced below :
"9. ... Thus, in these circumstances, the petitioner
cannot claim that the construction of the Abhyankar
Road should be done as per the Development Plan. It
is submitted that this respondent is executing the
Abhyankar Road Widening and Buty Mahal Street
Scheme, in which, the width of Abhyankar Road is
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shown as 24 meters. It is further submitted that this
road is in the hub of main commercial activity. It is
further submitted that due to traffic congestion, this
road is utilized as one way road. That, by widening of
this road, it will become two way road in addition to
the considerable amount of parking space will also
become available. Thus, in these circumstances, in the
larger interest of the public at large, this respondent is
implementing the scheme, to which, the consent of the
land-owner is already accorded. Moreover, the
land-owners themselves have submitted a proposal for
rehabilitation of all their tenants, who are in
occupation of the premises, which is submitted to this
respondent with their signatures. Thus, in these
circumstances, all the occupants will not be thrown out
of the business, as the land-owners have started
constructing alternative accommodation to
accommodate their tenants temporarily. It is further
submitted that even many of the occupants have shown
their willingness and started vacating the shops. ..."
Apart from above, there is ample material available on record
to hold that the NIT continued to execute the Scheme and it is
thus obvious that the NIT was very clear in its mind to
implement the Scheme, even after revision to the development
plan on 7-1-2000. In spite of widening of Abhyankar Road
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from 12 meters to 24 meters to accommodate two-way traffic,
the stand of the NIT is clear to implement the Scheme in larger
public interest. It is not the stand of the NIT that the Scheme
no longer subsists or survives after coming into force of the
development plan. The argument of Shri Sunil Manohar that
there is evolution of the Scheme over a period from 1960 to
2015, is neither supported by the NIT nor can be accepted for
the reason that the evolution cannot be de hors the provisions
of law. We, therefore, reject the contention of Shri Sunil
Manohar for the respondents that after coming into force of
the development plan, the said Scheme became non-existent or
was completely eclipsed.
Contentions based on Section 127 of the MRTP Act
:
72. Shri Sunil Manohar for the respondents has invited
our attention to the provision of Section 127 of the MRTP Act,
which is reproduced below :
" 127. Lapsing of reservations
(1) If any land reserved, allotted or designated for
any purpose specified in any plan under this Act is not
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acquired by agreement within ten years from the date
on which a final Regional plan, or final Development
plan comes into force or, if a declaration under
sub-section (2) or (4) of section 126 is not published
in the Official Gazette within such period, the owner or
any person interested in the land may serve notice,
alongwith the documents showing his title or interest
in the said land, on the Planning Authority, the
Development Authority or, as the case may be, the
Appropriate Authority to that effect; and if within
twenty-four months from the date of the service of such
notice, the land is not acquired or no steps as aforesaid
are commenced for its acquisition, the reservation,
allotment or designation shall be deemed to have
lapsed, and thereupon the land shall be deemed to be
released from such reservation, allotment or
designation and shall become available to the owner
for the purpose of development as otherwise,
permissible in the case of adjacent land under the
relevant plan.
(2) On lapsing of reservation, allocation or
designation of any land under sub-section (1), the
Government shall notify the same, by an order
published in the Official Gazette.
According to Shri Sunil Manohar, it is necessary for the
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development plan to make proposal for the roads in terms of
clause (d) of Section 22 of the MRTP Act so that the land
covered by it can be acquired for such purpose. If such land is
not acquired by the agreement within a period of ten years,
then the owner or any person interested in the land gets right
to serve a notice upon the planning authority, as contemplated
by sub-section (1) of Section 127 for purchase of the said
land. He further submits that if within a period of twelve
months from the date of service of such notice the land is not
acquired or no steps are taken for such acquisition, the
reservation, allotment or designation of such land for the
development plan lapses and the land is deemed to have been
released from such reservation, allotment or designation.
Consequently, the land reserved allotted or designated in the
development plan becomes available to the owner for the
purpose of development as otherwise permissible in the case
of adjacent land under the relevant plan. He submits that
absence of the Internal road in the development plan, will
deprive the rights conferred upon the owner under
Section 127, and, therefore, an inference has to be drawn that
such roads are necessarily required to be shown in the
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development plan.
Section 127 of the MRTP Act
- Not attracted :
73. We are unable to understand the logic of aforesaid
argument and its relevancy in the facts and circumstances of
the present case. We find the argument to be fallacious, for
the reasons - (i) that the acquisition of land in the area
covered by the MRTP Act need not necessarily be under the
provisions of the said Act, but it can also be under the
provisions of the NIT Act or the Land Acquisition Act, which do
not provide such right, (ii) that the land in the present case
has already been acquired for the purposes of the Scheme
containing Internal road, under the provision of Section 45 of
the NIT Act even without such provision in the development
plan, and (iii) that the operation of deeming fiction under
sub-section (1) of Section 127 of the MRTP Act to release the
land from reservation, allotment or designation cannot be
extended to the situations, which are not covered by
Section 127, and for that purpose, sub-section (5) of
Section 31, has to be seen. The provision of Section 127 of
the MRTP Act is, therefore, neither attracted nor is of any help
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to the respondents in support of their contention that the
existence of every "Scheme road" has to be found in the
development plan. The argument is, therefore, rejected.
Contention based on Government Resolution
dated 7-10-1997 :
74. We had called the original files from the NIT for our
perusal. We find some nothings in Marathi on 3-4-2008,
which are transcribed in English as under :
"2) "Abhyankar Road-widening and Buty Mahal
Street Scheme, is sanctioned by the Nagpur
Improvement Trust. If this scheme is to be
implemented, one 50-foot wide road through the said
land was proposed as per the scheme. Similarly, land
was marked for parking. However, the 50-foot wide
road and parking area shown in the scheme are not
included in the development plan. And as per the
Government Resolution, dtd. 7th October, 1997,
directions are given to develop the land as per the
development plan. Accordingly, the land is being
developed s per the provisions in the development plan
and not as per the scheme."
As per the aforesaid notings, two reasons are given - (i) that
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the road and parking area shown in the Scheme are not shown
in the development plan, and (ii) as per the Government
Resolution dated 7-10-1997, the development has to be as per
the development plan. Except the above reference in the
notings, we do not find any other reason on the record to
dispense with the provision of Internal road. We have already
dealt with one aspect of the reasoning in earlier para.
75.
It is surprising that without there being any proposal,
discussion and decision of the NIT on the vital aspect of
existence and continuation of Internal road in the Scheme
published under Section 45 of the NIT Act, there is a sanction
of the layout plan and building permit without the provision
of Internal road. We also put a specific question to
Smt. Bharti Dangre for the NIT, and she fairly conceded that
there was neither any such proposal nor any decision of the
NIT thereon. Perusal of the Government Resolution shows
that its object is only to grant relaxation under Rule 5(2) of
the Nagpur Improvement Trust (Land Disposal) Rules, 1993
from auctioning the property and to allot reconstituted plots
to the land-owners upon certain terms and conditions
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stipulated therein, and one of which being to accommodate all
the tenants in the Scheme, which was not there in the earlier
Scheme framed by the NIT. The land was allotted to the
owners on 50% premium of the market rate so as to enable
the land owners to make the Scheme viable or feasible and to
accommodate all the tenants in it.
76. In our view, the said Government Resolution cannot
be construed to mean that the Scheme published under
Section 45 of the NIT Act containing Internal road no longer
survives. The provision of Internal road can be dispensed with
only by having recourse to the provision of Section 46 of the
NIT Act and that has not been done in the present case. As
pointed out earlier, the NIT is playing dual role - one that of
the local authority under the NIT Act, and the other that of the
planning authority under the MRTP Act. The reference in the
said Government Resolution is to the Scheme framed under the
NIT Act and not to the development plan under the MRTP Act.
In our view, the direction in the Government Resolution is for
development as per the Scheme. At any rate, looking to the
purpose of the Government Resolution, even if the reference is
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construed as to the development plan, it does not make any
difference in view of an interpretation of various provisions.
As regards Question No.(2) :
77. In the representation dated 3-2-1999 at
Annexure-R18 by the owners to the NIT, pointed out by
Smt. Bharti Dangre, we find three basic proposals - (i) instead
of drawing the layout of small plots, it would be desirable to
treat the entire area under the development scheme as a
single plot and the Internal roads be treated as private roads,
(ii) instead of keeping an area of 7,000 square feet for
vehicle-parking, open to sky, as proposed in the development
plan, the parking may be permitted in the basement of the
proposed construction, which would be to the extent of
20,000/- to 21,000/- square feet, and (iii) to accommodate
the number of occupants, it would be necessary that the FSI of
the area, which would be consumed by road-widening and the
Internal roads, be allotted to be utilized for construction of
upper floors of the proposed building, and the area covered by
the Scheme being utilized for non-residential purposes and the
development being in a congested area, the FSI should be
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increased, equivalent to 2.5.
78. The reasons, which we find to treat the entire area as
a single plot, are - (a) the boundaries of individual plots have
not been specified, and the maps in relation to it, may overlap
creating further complications, (b) the creation of small plots
may not coincide or synchronize with the areas of respective
members under partition, and all the members of Buty family
propose to carry out the development as a joint venture,
(c) the major part of the constructed area would be
demolished completely for the purposes of public roads, as
proposed in the map, and (d) keeping building margin of 4.5
meters in the small plots instead of 1.5 meters may create
problem of accommodating 210 tenants.
Action by NIT on representation :
79. In the affidavit filed by the NIT, it seems that the
aforesaid demand of the land-owners has been accepted. The
relevant portion contained in sub-para of para 21 on
page 1293 is reproduced below :
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" In the larger interest, the State Government on
request of the land owners agreed for making a
provision of single reconstituted plot so as to enable
them to accommodate the tenants and the
responsibility of making adequate arrangement for
parking as well as widening of the road was left to the
land owners. The tenants in whose interest the entire
scheme came to be modified have no right to insist
upon the internal roads which were proposed in the
scheme since, in the year 1997, what was sanctioned
was a single reconstituted plot which was in the
interest of one and all. It is further submitted that
since Abhyankar Road itself is widened from 12 meter
to 24 meter, the purpose of internal roads no longer
survives since the traffic congestion is eased on account
of said widening of road. Moreover, the tenants who
did not find place in the 1961 scheme were
accommodated by virtue of Government Resolution
dated 7-10-1997 and it is most respectfully stated that
taking into consideration the avowed purpose of
reducing congestion in the Sitabuldi area and
particularly when the existing shops are in dilapidated
and shabby condition and considering the growing
prosperity and importance of the city it has become
necessary to provide a more sophisticated spacious,
decongested shopping area to the residents in Nagpur
City which would be free of traffic congestion."
It is in order to implement the aforesaid decision, a
notification under sub-section (2) of Section 37 of the MRTP
Act was issued on 22-6-2007.
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Mischief :
80. The proposal of the owners on 3-5-1999 to treat the
Internal road as private road, and the FSI consumed by
road-widening and the Internal road, be allotted to be utilized
for construction of upper floors of the proposed building, has
been accepted by the NIT. The demand for increase in the FSI
from 1.25 to 2.5 so as to enable the owners and the developers
to accommodate all the tenants comfortably has also been
accepted. Similarly, the area of building-margin, which was
likely to be consumed by laying small plots in the layout, has
also been saved and made available for commercial
exploitation. It is on the basis of the premise that the area in
the layout was likely to be consumed by 15-meter Internal
road, the construction of upper floors in the commercial
complex has been permitted. There is neither any proposal,
discussion or the decision by the competent authority under
the NIT to dispense with this vital aspect of existence or
continuation of Internal road. The view expressed by the
affiant that the purpose of Internal road no longer survives,
since the traffic congestion is eased out on account of
widening of Abhyankar Road, is his personal view, which
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cannot be accepted. Keeping in view the entire situation, we
find that to do away with the vital and basic requirement of
Internal road in the Scheme, only on the basis of office notings
not backed by the decision of any competent authority, is
nothing but a mischief to provide an unfair advantage to the
developers and the owners and it deprives the facility of
frontage to the tenants on the Internal road.
81.
We have seen the entire documents placed on record
containing the proposals submitted by the NIT, the owners
and decision taken thereon by the NIT. We find that every
time what the NIT intended, was to act upon the terms of
compromise entered into between the parties and accepted by
the Apex Court on 8-4-2002 in S.L.P. No.4846 of 2002. The
terms of compromise clearly indicate that the tenants and
landlords agree to vacate the area in their occupation for the
purposes of road-widening of Sitabuldi Main Road-60 feet,
Abhyankar Road-80 feet, and Internal road-50 feet and the
parking. Even the insistence of the NIT upon the
petitioner-tenants, as is apparent from the impugned notices,
is to accept the terms of compromise dated 8-4-2002. It is
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under the garb of implementing these terms, the insistence is
to vacate the portion of the shops without providing the
facility of Internal road.
82. The layout plan sanctioned on 15-5-2012, and the
building permit granted on 27-6-2012 and revised on
11-12-2014 are contrary to the provisions of the Scheme
published under Section 45 of the NIT Act and also in breach
of the terms of the compromise dated 8-4-2002 held to be
legal by the Apex Court. The notices of demolition impugned
in the present petition are based upon the sanctioned plan and
the building permit, which do not contain the provision for
Internal road. The space/area meant for Internal road is being
commercially exploited illegally and without any authority.
The basic object of the Scheme to improve the existing means
of communications and facilities for traffic and remove
congestion by providing thoroughfare is being frustrated. The
impugned notices of demolition issued to all the petitioners on
24-4-2015 cannot, therefore, be sustained and the same will
have to be quashed and set aside. The question No.(2) is
answered accordingly.
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83. Before we part with this judgment, the order
dated 3-9-2015 passed by this Court need to be seen, and it is,
therefore, reproduced below :
" CORAM : B.R. GAVAI AND
PRASANNA B. VARALE, JJ.
03RD SEPTEMBER, 2015
Heard.
It appears that though a settlement between the
tenants/petitioners on one hand and the
owners/developers on the other hand is possible, the
same is not being worked out as to on what terms and
conditions the settlement should be arrived at.
In the matter which went before the Apex Court,
the Chairman, Nagpur Improvement Trust was to act
as an arbitrator in case of a dispute between the
tenants which were the petitioners in that matter and
the landlords.
We, therefore, feel it appropriate that the
Chairman of the Nagpur Improvement Trust makes an
attempt by calling the representatives of the petitioners
or the petitioners on one hand and the
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landlords/developers on the other hand.
We do hope that taking into consideration the
importance of the project for easing out the traffic in
Sitabuldi area, both the sides would show the requisite
flexibility.
We make it clear that if there exists any dispute
between any of the owners interse or with developers,
we are not concerned with the same in the present
petition, insofar as the subject matter of the present
petition is totally different.
The parties are directed to appear before the
Chairman of the Nagpur Improvement Trust on
08th September, 2015 at 11.30 a.m. The matter to
come up before this Court on 23rd September, 2015."
In response to the aforesaid order, the Chairman, Nagpur
Improvement Trust, after hearing all the parties concerned,
has submitted his report on 15-10-2015, stating that it was not
possible for him to arrive at a mutually accepted compromise.
84. In the said report, the Chairman, Nagpur
Improvement Trust, has made his prima facie observations in
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para 22 as under :
"22) Considering the contentions raised by the
petitioners and the respondent; it prima-facie appears
to me that;
i) The scheme which is being referred to in the
instant case is the Abhyankar Road Widening and Buty
Mahal Street Scheme. The internal road reference to
which had been made since 1961 has a very significant
importance with regard to the scheme, the main object
and intent of the scheme of "beautification and
decongestion". Provision for decongestion and
beautification had been made by providing internal
roads and street.
The petitioners submitted orally as well as in
writing that the petitioners are not against the
development and beautification or decongestion and in
fact if the street scheme is implemented as it was meant
to be including by providing 4 internal criss cross
roads, the petitioners are ready to give some part of
their existing areas for the benefit of the public and if
genuinely required the petitioners are even ready to
give up 25% of their existing area and accept shop
blocks to the extent of 75% of their existing area on the
ground floor and on the same location.
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iv) It was submitted on behalf of the respondent that,
the petitioners/tenant do not have the locus-standi to
agitate the issue with regard to the internal road. It
was stated by the respondent that, he is proceeding
ahead as per the plan sanctioned by the Nagpur
Improvement Trust as mentioned above. I am of the
opinion that, it can not be said that, the petitioners
have no locus at all, to agitate the issue with regard to
the internal road. It is not in consensus or as per the
compromise pursis in the Hon'ble Apex Court
dated 8th of April, 2002 wherein clearly mentioned the
existence of internal road. As per the Scheme i.e.
Abhyankar Road Widening and Buty Mahal Street
Scheme; the notification of which was issued on
26/10/1961. The internal roads are vital and
important part of the scheme, when reference to the
same has also been made in the compromise pursis
filed before the Hon'ble Apex Court.
vii) On detail perusal of the proposal submitted by the
parties, it appears that, the proposal given by the
petitioners/tenant is within a condition that, if the
project is implemented as per the compromise pursis
dated 8th of April, 2002; especially Para 19 of
compromise pursis they are ready to negotiate in a
same way the respondent/builder is not ready to accept
the proposal of the petitioners. It appears that, the
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parties are not ready for amicable settlement on the
issue and both the parties wanted adjudication from
me. In these circumstances I feel that, there cannot be
a amicable settlement between the parties in the
matter, as both parties have not agreed on any
condition on which the settlement can be arrived at
between the parties and therefore, in my opinion the
parties cannot settle the dispute amongst themselves on
the terms and conditions acceptable to both the parties.
Hence, it was not possible, for me to arrive at a
mutually acceptable compromise."
85. As a matter of fact, the Chairman, Nagpur
Improvement Trust, acting as an Arbitrator, has also
prima facie held that - (i) the Internal road has a very
significant importance, (ii) the main object is that of
decongestion, and (iii) the compromise before the Apex Court
on 8-4-2002 provides for Internal road. This fortifies the view
which we have taken.
86. We have not set aside and it is also not necessary for
us to set aside the layout plan and the building permit granted
by the NIT, though by way of amendment, they are made the
subject-matter of challenge. It is not for us to decide as to
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how and in what manner the layout should be sanctioned and
the building permit is to be issued. We find the sanction of
plan and grant of building permit being in contravention of
the provisions of the Scheme published under Section 45 of the
NIT Act and contrary to the terms of compromise
dated 8-4-2002 held to be legal by the Apex Court while
accepting it, cannot be enforced. The construction, if any, is
carried out at the risk of the developers, contrary to the
Scheme. The impugned notices to the extent tries to enforce
such layout plan and building permit will have to be set aside.
87. We are concerned with the implementation of the
Scheme framed by the NIT. In this petition, we have dealt
with only one aspect of the matter, i.e. the existence of
Internal road. However, we expect the respondent-NIT to take
care of all other provisions, including that of parking open to
sky in the Scheme and the aforesaid report of the Chairman of
NIT, so as to avoid any future litigation.
88. Though the Scheme was formulated initially in the
year 1960, the question of stale acquisition was pending for
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decision of the Apex Court, and by virtue of award of
compensation and taking over possession of the land on
31-12-1997, the property vested in the NIT. Thereafter also,
the matter went up to the Apex Court by way of S.L.P.
No.4846 of 2002, in which the compromise was entered into
on 8-4-2002. The modification in the development plan was
made on 22-6-2007 and the lease-deed was executed on
10-2-2010 in favour of the owners. The notices were issued
for demolition on 24-4-2015. We, therefore, expect the
respondents to act expeditiously to bring the layout plan and
the building permit and the construction in conformity with
the Scheme and then to issue notices to the petitioners.
89. In the result, we allow this petition and pass order as
under :
(1) All the notices of demolition dated 24-4-2015
issued by the Nagpur Improvement Trust, at
Annexure-W (Collectively) to the petition, are hereby
quashed and set aside.
(2) We leave it open for the Nagpur Improvement
Trust to issue fresh notices of demolition to the
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petitioners after the sanctioned layout plan
dated 15-5-2012, the building permit granted
27-6-2012 and revised on 11-12-2014 as well as the
construction, if any, carried out are brought in
conformity with the Scheme published under
Section 45 of the NIT Act on 23-6-1964.
90. Rule is made absolute in above terms. No order as to
costs.
JUDGE. JUDGE.
Lanjewar,
PS
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CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : P.D. Lanjewar, PS
Uploaded on : 15-9-2016
