M/S Vedbhoomi Builders And ... vs State Of Maharashtra, Through Its ...
2017 Latest Caselaw 1930 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                         Writ Petition No.2961 of 2016
                                     And
                         Writ Petition No.3219 of 2016


 A.      Writ Petition No. 2961 of 2016 :

 M/s. Gowardhan Infrastructure Pvt. Ltd.,
 through Director Shri
 Jatin Malviya,
 aged adult,
 occupation - business,
 resident of Lakadganj, Nagpur.       .....                    Petitioner.


                                    Versus


 1.      The State of Maharashtra,
         through its Secretary,
         Department of Urban Development,
         Mantralaya,
         Mumbai-32.




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 2.      Municipal Commissioner,
         Nagpur Municipal Corporation,
         Civil Lines,
         Nagpur.

 3.      Assistant Director of Town Planning,
         Nagpur Municipal Corporation,
         First Floor, Narang Tower,
         Palm Road, Civil Lines,
         Nagpur-440 001.

 4.      Nagpur Municipal Corporation,
         through its Commissioner,
         Civil Lines, Palm Road,
         Nagpur.                            ....       Respondents.


                              *****
 Mr. S. P. Dharmadhikari, Senior Advocate with Mr. R.V. Malviya,
 Adv., for the petitioner.

 Mr. N. Rode, Asstt. Govt. Pleader for respondent no.1.

 Mr. S.K. Mishra, Senior Advocate with Mr. A.M. Kukday, Adv., for
 respondent nos. 2,3 and 4.

                                *****

 B.      Writ Petition No. 3219 of 2016 :

 M/s. Vedbhoomi Builders & Developers
 Pvt. Ltd.
 [a Company duly registered under
 Indian Companies Act having
 registration No. CIN U 45 200 MH
 2005, PTC 155828], through
 Director Shri Yogesh M. Chawada,
 having its Registered Office
 at Shop No.04, Bhoomi Arcade,
 Patidar Bhavan Road,




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 near Lakadganj Garden,
 Nagpur-440 008,
 having PAN No. AACCV4558M.                 .....         Petitioner.


                               Versus


 1.      The State of Maharashtra,
         through its Secretary,
         Department of Urban Development,
         Mantralaya,
         Mumbai-32.

 2.      Municipal Commissioner,
         Nagpur Municipal Corporation,
         Civil Lines,
         Nagpur, through Shri Shrawan
         Hardikar.

 3.      Assistant Director of Town Planning,
         Nagpur Municipal Corporation,
         First Floor, Narang Tower,
         Palm Road, Civil Lines,
         Nagpur-440 001.

 4.      Nagpur Municipal Corporation,
         through its Commissioner,
         Civil Lines, Palm Road,
         Nagpur.                            ....       Respondents.


                              *****
 Mr. S. P. Dharmadhikari, Senior Advocate with Mr. R.V. Malviya,
 Adv., for the petitioner.

 Mr. N. Rode, Asstt. Govt. Pleader for respondent no.1.

 Mr. S.K. Mishra, Senior Advocate with Mr. A.M. Kukday, Adv., for
 respondent nos. 2,3 and 4.




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                                       *****


                               CORAM     :     B. R. GAVAI AND
                                               A. S. CHANDURKAR, JJ.

Date : 21st April, 2017

ORAL JUDGMENT [Per A.S. Chandurkar, J.]:

01. Pursuant to notice for final disposal issued in both the Writ

Petitions, we have heard the learned counsel for the parties at length

by issuing Rule and making the same returnable forthwith. Since

common issues arise in both these Writ Petitions, they are being

decided by this common judgment. For sake of convenience, the facts

in Writ Petition No. 2961 of 2016 are being referred to.

02. The Petitioner-Firm is the owner of Plot No. 133, Ward No.23

which is situated in an industrial area at Lakadganj, Nagpur. The

Development Control Regulations of the Nagpur Municipal Corporation

were sanctioned by the State Government under Section 31 (1) of the

Maharashtra Regional & Town Planning Act, 1966 [for short, "the said

Act"] on 31st March, 2001. A minor modification to the same was

effected on 20th July, 2007 under provisions of Section 37 (2) of the

wps2961.16&3219.16

said Act. Clause 14.2.1 of the Development Control Regulations came

to be modified in the matter of change of user in industrial zones.

Lands in industrial zones were permitted to be utilized for residential

purpose or residential with shop line. As the Municipal Corporation had

certain doubts in the manner in which the said Regulations were to be

applied, it sought clarification in this regard from the State

Government on 15th October, 2008. When the matter was pending

with the State Government, the Municipal Corporation issued a Circular

dated 17th January, 2009 in which it was stated that till the time

necessary instructions were received from the State Government,

pending applications for sanction would be decided by applying 2.5

FAR for commercial use, 2 FAR for mixed user and 1 FAR for residential

use. The petitioner submitted its Building Plan for sanction on 10th

May, 2012 proposing mixed user for commercial and residential

purposes. This plan came to be rejected by the Asstt. Director of

Town Planning on 10th May, 2013, on the ground that sanction had

been sought for mixed user and not for exclusive commercial use. The

petitioner being aggrieved filed an appeal under Section 47 of the said

Act. By order dated 19th August, 2014 passed in Writ Petition No.

3346 of 2014, this Court directed the State Government to decide said

appeal within a period of four months. The appeal filed by the

petitioner came to be dismissed as being barred by limitation. This

wps2961.16&3219.16

order, in turn, came to be challenged by the petitioner in Writ Petition

No. 5360 of 2015. This Court by judgment dated 30th November, 2015

held that the appeal was filed within limitation and directed the same

to be decided on merits. The Honourable Minister of State for Urban

Development by his order dated 26th February, 2016 allowed the said

appeal and held that sanction was liable to be granted to the petitioner

in the light of Circular dated 17th January, 2009 issued by the

Municipal Corporation. As the Building Plan submitted by the

petitioner was not being sanctioned in terms of the order passed in the

appeal, the petitioner has filed the present Writ Petition seeking a Writ

of Mandamus against the Municipal Corporation and the Asstt. Director

of Town Planning to approve the Building Plan as per Circular dated

17th January, 2009 by complying with the order of the Appellate

Authority dated 26th February, 2016.

03. Shri S. P. Dharmadhikari, learned Senior Counsel for the

petitioner, submitted that the respondent nos. 2 and 3 were not

justified in refusing to sanction the building plan of the petitioner in the

light of the order passed by the Appellate Authority on 26th February,

2016. It was submitted that the petitioner's plan submitted on 10th

May, 2012 was required to be sanctioned by applying the Circular

dated 17th January, 2009 issued by the Municipal Corporation. He

wps2961.16&3219.16

submitted that as the Municipal Corporation had certain doubts in the

matter of implementing Regulation No. 14.2.1 [as amended on 20th

July, 2007], it had sought clarification from the State Govt. For the

purposes of deciding pending applications, the Municipal Corporation

itself had issued Circular dated 17th January, 2009 and in terms

thereof, it had sanctioned various plans in the industrial zones. The

petitioner was being unnecessarily discriminated and its application

dated 10th May, 2012 was not being sanctioned in terms of the

aforesaid Circular. By referring to the additional affidavit filed on

record giving instances of sanction being granted in Industrial Zones

on the strength of Circular dated 17th January, 2009, it was submitted

that the Planning Authority could not adopt a pick and choose attitude

in the matter. The petitioner having succeeded in the statutory appeal

preferred by it, the order passed by the Appellate Authority was

binding on the Municipal Corporation and it was bound to implement

the same. It was also urged that the position as was prevailing when

the application for sanction was moved ought to be applied and any

subsequent changes could not be taken into consideration to the

prejudice of the petitioner. It was, thus, submitted that the petitioner

was entitled for a writ of mandamus to enable the order passed by the

Appellate Authority to be taken to its logical conclusion.

wps2961.16&3219.16

04. Shri S.K. Mishra, learned Senior Counsel for the respondent

nos. 2 to 4, vehemently opposed the aforesaid submissions. He

submitted that the petitioner was not entitled to rely upon the Circular

dated 17th January, 2009 issued by the Municipal Corporation,

inasmuch as subsequent thereto, notice under Section 37 (1 AA) of the

said Act had been issued which was thereafter followed by notification

under said provision dated 3rd October, 2016. On that count, the

Circular dated 17th January, 2009 ceased to have any legal effect. He

submitted that pursuant to the clarification sought by the Planning

Authority on 16th May, 2016, the State Government, on 31st January,

2017 had clarified that the FAR as per Regulation 14.2.1 in the

Development Control Regulations was to be applied as per Notification

dated 3rd October, 2016. He referred to the provisions of the said Act,

and especially Sections 31, 37 and 43 thereof. He brought to the

notice of the Court the fact that the petitioner in Writ Petition no. 2961

of 2016 had already undertaken construction without there being any

proper sanction for the same. He also submitted that the said

petitioner had also submitted a fresh map for sanction on 17th March,

2016 which implied that the petitioner had accepted the rejection of

the earlier plan dated 10th May, 2012. He referred to the affidavit filed

on behalf of respondent nos. 2 and 3 dated 4th January, 2017 to urge

that the subsequent plan dated 17th March, 2016 was not in

wps2961.16&3219.16

consonance with the plan submitted initially on 10th May, 2012.

According to him, therefore, there was no question of implementing

the order passed by the Appellate Authority, inasmuch as the

petitioner itself had submitted a fresh plan for sanction. He, therefore,

submitted that considering the subsequent Notification dated 3rd

October, 2016 issued by the State Govt., the relief sought by the

petitioners could not be granted.

Shri N.R. Rode, learned Asstt. Govt. Pleader for the

respondent no.1, supported submissions made on behalf of the

Planning Authority. He submitted that pursuant to the order dated

12th July, 2016 passed in the Writ Petitions, the respondent no.1 had

filed affidavit dated 4th February, 2017 in which it was stated that

pursuant to the clarification sought by the Planning Authority vide its

letter dated 16th May, 2016, the same had been answered by

communication dated 31st January, 2017 by referring to the notice

issued under Section 37 (1AA) of the said Act as well as subsequent

Notification dated 3rd October, 2016. As per the aforesaid, the FAR

permissible would be according to that which was permissible for

residential use. He, therefore, submitted that the Writ Petition was

liable to be dismissed.

05. We have heard the learned counsel for the parties at length

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and we have gone through the documents filed on record. After giving

due consideration to the respective submissions, we find that the

petitioners would not be entitled to the reliefs sought by them in the

Writ Petitions.

06. The relief sought by the petitioners is in the nature of

Mandamus seeking directions against the Planning Authority to

sanction and approve the building plans submitted by the petitioners

on the basis of Circular dated 17th January, 2009, as directed by the

Appellate Authority in its order passed under Section 47 of the said

Act. Before examining the respective contentions, it would be

necessary to refer to the following observations of the Honourable

Supreme Court in para 7 of its judgment in Renu & others Vs.

District & Sessions Judge, Tis Hazri & another [ (2014) 15 SCC

731], the relevant portion of which is quoted below:-

"7. ........................................................................... ...........It is trite law that unless an aggrieved party has an enforceable legal right under a statute or rule, a mandamus cannot be issued to an authority to do something. ....."

It is, therefore, necessary for the petitioners to first

demonstrate that they have an enforceable legal right under the said

Act on the basis of which a writ of mandamus could be issued so as to

wps2961.16&3219.16

direct the respondents to take a particular action. We are not oblivious

of the fact that the legality of the Circular dated 17th January, 2009 is

not under challenge before us and in fact, the said Circular is the basis

for seeking relief by the petitioners. However, as the petitioners seek

a writ of mandamus praying for enforcement of the said Circular, it

would be, therefore, necessary to examine the same in the backdrop of

the provisions of the said Act.

07. It is not in dispute that initially the Development Control

Regulations of the Municipal Corporation were sanctioned by the State

Government under Section 31 (1) of the said Act vide Notification

dated 9th April, 2001. Thereafter, a minor modification in Regulation

No.14.2.1 was sanctioned by the State Government on 20th July, 2007

under provisions of Section 37 (2) of the said Act. This modification

pertained to change of user in an industrial zone. On account of

certain doubts in the mind of the Planning Authority, it sought

clarification from the State Government on 15th October, 2008. The

Municipal Commissioner on 17th January, 2009 issued a Circular in

which it was stated that till the time the clarification received from the

State Government, FAR for commercial user would be 2.5, FAR for

mixed user with commercial use would be 2.00 and for exclusive

residential use, the FAR would be 1.00.

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08. The exercise of preparing a Development Plan and the

further exercise of modifying the same under the provisions of

Chapter-III of the said Act has been treated to be a quasi legislative

act. Under Chapter-III of the said Act, the manner in which a

Development Plan has to be prepared has been laid down. Once the

Development Plan comes into operation, it is called the Final

Development Plan and under Section 31 (6) of the said Act, the same is

binding on the Planning Authority. Modification of the Final

Development Plan can only be made in the manner prescribed by

Section 37 of the said Act. Under Section 42 of the said Act, it is the

duty of the Planning Authority to take steps as may be necessary to

carry out the provisions of the Final Development Plan. In other words,

the hands of the Planning Authority are tied once the Final

Development Plan comes into force or is modified in the manner laid

down under the said Act.

09. The facts indicate that the Development Control Regulations

dated 31st March, 2001 were subjected to minor modification by the

State Government in exercise of powers under Section 37 (2) of the

said Act. This was done by issuing Notification dated 20 th July, 2007.

As per provisions of Section 37 (2) of the said Act, on a modification

wps2961.16&3219.16

being sanctioned by the State Government, the Development Plan

shall be deemed to have been modified accordingly. Thus, the effect

of the Notification dated 20th July, 2007 was to modify the

Development Control Regulations that were initially sanctioned under

Section 31 of the said Act. Once the Final Development Plan stood

modified, there was no source of power with the Municipal

Commissioner as Planning Authority to issue a Circular stipulating the

manner in which Floor Area Ratio [FAR] could be worked out in a

manner at variance with the Development Control Regulations. No

such source of power with the Planning Authority to issue such Circular

has been pointed out. Therefore, there is no legal basis to support the

issuance of Circular dated 17 th January, 2009. As the Development

Control Regulations had come into force from 9th April, 2001 subject to

minor modification vide Notification dated 20th July, 2007, plans for

sanction were liable to be considered in the light of the said

Development Control Regulations as modified on 20 th July, 2007. The

issuance of Notification dated 17th January, 2009 by the Municipal

Commissioner that was to operate only till such period clarification was

received from the State Government cannot give any legal right to the

petitioners if it provides for a particular modality which is not provided

for by the Development Control Regulations as modified. We,

therefore, find that the entire basis of seeking relief on the part of the

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petitioners by relying upon Notification dated 17 th January, 2009 is

without legal support.

10. There is another reason as to why the Municipal Corporation

cannot be directed to implement the order passed by the Appellate

Authority dated 26th February, 2016. When the appeal was pending

before the Appellate Authority, the respondent no.1 issued a notice on

18th January, 2016 in exercise of powers under Section 37 (1AA) (a) of

the said Act. As per this notice, a further modification was sought to

be made in Regulation No. 14.2.1 (b). Thus, on the day when the

Appellate Authority decided the appeal filed by the petitioners under

Section 47 of the said Act, the State Government had already issued

notice proposing further modification in the Final Development Plan in

exercise of powers under Section 37 (1AA) (a) of the said Act. The

notice dated 18th January, 2016 had the effect of governing the matter

with regard to grant of FAR by modifying earlier Notification dated 20 th

July, 2007. The State Government having exercised its powers after

being satisfied in public interest that an urgent modification was

necessary in the Development Control Regulations cannot be

expected, by a subsequent order, to direct the Planning Authority to

sanction a building plan in a manner not in consonance with the

proposed modification. It may be stated that after passing of the order

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by the Appellate Authority, the notice issued under Section 37 (1AA)

(a) of the said Act has become final and further notification in exercise

of powers under Section 37 (1 AA) (c) of the said Act has now been

issued on 3rd October, 2016. In that view of the matter, it is clear that

the Planning Authority cannot be compelled by issuing a writ of

mandamus to consider sanctioning a plan on the basis of Circular

dated 17th January, 2009 in the teeth of minor modifications dated 20 th

July, 2007 and 3rd October, 2016.

11. Since it has been found that the Circular dated 17th January,

2009 cannot be the basis for grant of sanction of the building plans

submitted by the petitioners and that the building plans of the

petitioners were liable to be considered in the light of Regulation No.

14.2.1 [as amended on 20th July, 2007] and the subsequent

Notification dated 3rd October, 2016 under Section 37 (1AA) of the Act,

the entire basis of the petitioners of seeking relief does not survive.

Though it was strenuously urged by the learned Senior Counsel for the

petitioners that building plans from the same industrial zone of other

applicants had been sanctioned by the Planning Authority by relying

upon the Circular dated 17th January, 2009, having found that said

Circular cannot be the basis for grant of sanction in favour of the

petitioners, said contention also cannot be accepted. It is well settled

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that there cannot be parity on the basis of an earlier wrong application

of the statute or an irregular decision. Reference in that regard can be

usefully made to the following observations of the Honourable

Supreme Court contained para 8 of its decision in Basawraj & others

Vs. Special Land Acquisition Officer [ (2013) 14 SCC 81], the

relevant portion of which is quoted below:-

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. ....."

12. Thus, merely because some persons were granted sanction

on the basis of this Circular dated 17th January, 2009, the same cannot

be relied upon in the present facts in the light of what has been held

herein above. Hence, on this count also, the petitioners are not

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entitled for any relief, whatsoever. In view of what has been discussed

herein above, we do not find any merit in the Writ Petitions. The same

are accordingly dismissed. Rule stands discharged with no order as to

costs.

           Judge                                             Judge
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