Viveka Super Speciality Hosp. And ... vs State Of Maharashtra, Urban ...
2022 Latest Caselaw 1714 Bom

Judgment                                    1                           wp2384.21-1.doc




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.

                     WRIT PETITION NO. 2384 OF 2021

Viveka Super Specialty Hospital &
Research Centre Private Limited,
through one of its Directors,
Dr. Prashant Jagtap, Aged : 56 years
Occupation : Cardiologist, having
Office at Plot No.1A, Naik Layout,
Subhash Nagar, Nagpur - 440 022.
                                                                 .... PETITIONER.

                                   // VERSUS //

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

2. The Nagpur Municipal Corporation,
   Through its Commissioner,
   Civil Lines, Nagpur- 440 001.

3. The Nagpur Improvement Trust,
   Station Road, Sadar, Nagpur
   through its Chairman.
                                                               .... RESPONDENTS.

______________________________________________________________
Shri S.P. Dharmadhikari, Sr.Adv. a/b. Shri Kartik.N.Shukul, Adv. for Petitioner.
Smt.K.S.Joshi, G.P. for Respondent No.1.
Shri J.B.Kasat, Advocate for Respondent No.2.
Shri C.S.Kaptan, Sr.Adv. a/b. Shri Girish Kunte, Adv. for Resp. No.3.
______________________________________________________________

                      CORAM :         SUNIL B. SHUKRE AND
                                      ANIL L. PANSARE, JJ.

DATE OF RESERVING THE JUDGMENT : 03/02/2022 DATE OF PRONOUNCING THE JUDGMENT: 21/02/2022 Judgment 2 wp2384.21-1.doc

JUDGMENT : (Per Court)

1. Hearing was conducted through Video Conferencing and the

learned Counsel agreed that the audio and visual quality was proper.

2. Heard.

3. RULE. Rule made returnable forthwith. Heard finally by consent

of the parties.

4. The traces of petition find place in order dated 19 th April 2021

passed by this Court in Suo Motu PIL No. 4 of 2020. The suo motu

cognizance of the Covid Pandemic was taken. Various orders were

passed from time to time. We all are conscious of the fact that during

second wave of the Pandemic the entire country suffered a setback

because of lack of health care infrastructure in the hospitals. Nagpur

city was no exception. Many casualties occurred for want of oxygen.

Various High Courts in their respective jurisdictions had taken

cognizance of the then prevailing situation and had passed various

orders. One of such orders was passed by this Court. The relevant

portion of the said order dated 19 th April 2021 in Suo Motu PIL No. 4

of 2020, that led to filing the present petition is as under:

Judgment 3 wp2384.21-1.doc

"9. There is another issue of major concern which relates to shortage of oxygen supply. Presently, it appears that the production capacity itself is falling short to meet the demand and, therefore, the long term solution would only lie in increasing the production capacity. That can be done through various ways. For the time being, we direct the State as well as Collector, Nagpur and Commissioner, Municipal Corporation, Nagpur and also Central Government, if required, to grant all necessary permissions to all the private covid Hospitals which are interested in setting up their own oxygen generation plants/units. Some of these Hospitals may also require additional space for setting up these units and, therefore, if these Hospitals apply for allocation of any adjoining land which belongs to the state government or the corporation, same shall be made available by completing all formalities including grant of exemptions or de-reservations, if necessary, by State/Collector, Nagpur / Commissioner, NMC and on payment of the appropriate market value of the land or premium determined as per market value of the land without any delay. If these Hospitals are interested in setting up smaller plants utilizing air separation technology and any special permissions are required for that purpose, same shall be given by these authorities without any delay. If any of the Hospitals are interested in procurement of smaller oxygen generation units which are called concentrators based upon air separation technology, necessary permissions shall be granted by the state and all the concerned authorities for their import / delivery to these Hospitals, without any delay."

5. Thus, the Court has taken the cognizance of shortage of

oxygen supply and to meet the demand the Court thought it proper to

have a long term solution by increasing the production capacity of Judgment 4 wp2384.21-1.doc

oxygen. Accordingly, directions have been issued to the State as well

as Collector, Nagpur, Municipal Commissioner, Nagpur and also Central

Government to grant all necessary permissions to all the private Covid

Hospitals which are interested in setting up their Oxygen Generation

Plants/ Units. The Court has then observed that some of these

Hospitals may also require additional space for setting up these units

and therefore, directions have been given that if these hospitals apply

for allocation of any adjoining land which belongs to the State

Government or the Corporation, the same shall be made available by

completing all the formalities including grant of exemptions or de-

reservations if necessary by State/Collector, Nagpur, Commissioner,

Nagpur Municipal Corporation on payment of appropriate market

value of the land or premium determined as per the market value of

the land without any delay.

6. If one reads this order in its proper perspective, which

requires plain reading, it would immediately come in the mind that a

long term solution is to be found out to enhance the production

capacity of oxygen by setting up Oxygen Generation Plants/Units. The

long term solution is required because requirement of oxygen plant

was not only the need as on 19 th April 2021, when the order was Judgment 5 wp2384.21-1.doc

passed, but would be the need of the future as well. It was not known

at that time nor is it known now, how long will this Covid Pandemic

continue. At that time, the country was facing second wave, now, it is

facing third wave. The future is not known. Thus, the problem solving

approach is expected from all concerned, but what is before us is a very

painful scenario.

7. There is a battle going on between one private hospital viz.

Viveka Super Specialty Hospital and Research Centre Pvt. Ltd.

(petitioner herein) on one hand and the Nagpur Improvement Trust

(respondent No.3) and the Nagpur Municipal Corporation (respondent

No.2) on the other. It appears that the petitioner hospital was

nominated as a Dedicated Covid Hospital on or about 20 th August 2020

by the respondent No.2-Corporation. According to the petitioner, the

Hospital had dedicated 39 out of its 100 beds for Covid patients in the

first wave and thereafter had dedicated 60 out of its 100 beds in the

second wave. It claimed to have treated almost 1400 Covid patients

since onset of the pandemic. The petitioner appears to have made a

representation dated 28/04/2021 in furtherance to the order dated

19th April 2021 passed by this Court.

Judgment 6 wp2384.21-1.doc

8. In response, the respondent No.1/ State of Maharashtra,

Urban Development Department, upon recommendation of respondent

No.3-Nagpur Improvement Trust, granted permission for temporary

use of the land for a period of two years, on the condition that the

petitioner would pay premium of Rs.54,00,000/-.

9. The petitioner claims to have erected a temporary structure

on the said land. The respondent No.3 issued a notice dated 7 th July

2021 mentioning therein that the land in question was reserved for

Primary School and out of the said land 10000 Sq.Ft. was proposed to

be allotted to the petitioner upon the terms and conditions mentioned

in the letter dated 17 th May 2021, and that the petitioner failed to

comply with the said terms and conditions and erected a room

admeasuring 4.15 x 5 Meters with tin roof. Such construction, it was

stated, amounted to encroachment and therefore, the respondent No.3

directed the petitioner to remove the encroachment.

10. The petitioner, therefore, approached this Court by way of

present petition seeking multiple reliefs, the prime relief being

allocation of land admeasuring 10000 Sq.Ft. out of 87833.509 Sq.Ft. in

terms of the order dated 19 th April 2021 passed by this Court in Suo

Motu PIL No. 4 of 2020.

Judgment 7 wp2384.21-1.doc

11. On 17th September 2021 this Court while taking cognizance

of the above petition, passed following order:

"1. Heard.

2. It has emerged during the course of hearing that a detailed proposal regarding allotment of the subject land on the certain terms and conditions is yet to be received by the Nagpur Improvement Trust(NIT) from the petitioner.

3. Shri S.P.Dharmadhikari, learned Senior Advocate submits that a suitable proposal in detail would be submitted by the petitioner to the NIT.

4. In view of the above, we grant liberty to the petitioner to submit its detailed proposal to the NIT, within a period of one week from the date of the order and if such proposal is moved by the petitioner, the same shall be dealt with and forwarded, in accordance with law by the NIT within a period of three weeks from the date of receipt of the proposal, and on its receipt by the State Government, an appropriate decision thereupon shall be taken by the State Government, within a reasonable period of time.

5. List the petition for further consideration/ hearing after six weeks."

12. The aforesaid order would clearly indicate that the petitioner

was given liberty to submit its detailed proposal to the respondent

No.3-Nagpur Improvement Trust within a period of one week from the

date of the order. Upon receipt of such proposal, the respondent No.3-

Nagpur Improvement Trust was directed to deal with it and forward

the same, in accordance with law, to the State Government, within Judgment 8 wp2384.21-1.doc

three weeks. Thereafter the State Government was directed to take

appropriate decision within a reasonable period.

13. It appears from record that the petitioner did not submit

proposal within one week, has submitted it after some time. The

respondent No.3 has, instead of forwarding the proposal, rejected the

same vide its communication dated 26 th December 2021 issued in

favour of the petitioner.

14. The learned Senior Advocate Shri C.S.Kaptan for the

respondent No.3 submits that the proposal that has been rejected by

the Nagpur Improvement Trust has been forwarded to the respondent

No.1 and can very well be treated as proposal with negative

recommendation of the Nagpur Improvement Trust. These submissions

were made against the contentions advanced by the learned Senior

Advocate Shri S.P.Dharmadhikari for the petitioners that the

respondent No.3 could not have rejected the proposal but should have

forwarded the same to the respondent No.1, at most, with negative

recommendations.

15. We have not heard of forwarding a proposal to the State

Government which is addressed to the sender of the proposal Judgment 9 wp2384.21-1.doc

mentioning therein that his proposal is rejected, copy of which is only

forwarded to the State Government. It cannot even be treated as

proposal with negative recommendations as argued by Shri C.S.

Kaptan, learned Senior Advocate.

16. The land under question is reserved for Primary School. The

land is admeasuring 0.816 Hectares (87833.509 sq.ft). Out of the said

land, the petitioner intends to set up a medical oxygen gas plant on

the land admeasuring 0.9929 Hectare (10000 (sq ft). The land is

reserved for primary school since 1968. If this land is to be allotted to

the petitioner-hospital, it will have to be released from reservation and

for that, the process under relevant Act has to be followed. Shri

Kaptan, learned senior Advocate for respondent no.3- NIT contends

that the respondent no.2- Nagpur Municipal Corporation is the

Planning Authority and, therefore, the Corporation should move the

proposal for de-reservation. As against, Shri J.B.Kasat, learned

counsel for respondent no.2 submits that the land is fully under the

control of the respondent no.3-NIT and, therefore, proposal should be

forwarded by the NIT.

17. Thus, the authorities are trying to shift their burden upon Judgment 10 wp2384.21-1.doc

each other instead of finding out a solution in terms of the order of

the Court. It is also pleaded by Respondent no.3-NIT that if the land is

so allotted to the petitioner by exercising extraordinary jurisdiction of

the Hon'ble Court, it would amount to opening floodgates for such

type of litigations before this Court and the very purpose, scope and

object of the NIT Land Disposal Rules would stand frustrated. It is

then submitted that the Scheme under the Rules for allotment of lands

by public auction, tender etc. is required to be taken into consideration,

while allocating land to the petitioner. These submissions would

indicate that Respondent no.3-NIT has some limitations.

18. Shri Kaptan, learned senior counsel has relied upon the

judgment, in the case of Akhil Bhartiya Upbhokta Congress vs. State

of Madhya Pradesh and others:(AIR 2011 SC 1834) wherein in

paragraph nos. 31 to 34, it has been held as under :-

"31. What needs to be emphasized is that the State and or its agencies /instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/ or officers of the State. Every action/decision of the State and/ or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made Judgment 11 wp2384.21-1.doc

known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented /executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit license etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.

32. We may add that there cannot be any policy, must less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions de hors an invitation or advertisement by the State or its agency/ institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/ instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favourtism and/ or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.

33. This, however, does not mean that the State Judgment 12 wp2384.21-1.doc

can never allot land to the institutions/ organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions / organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similar situated eligible persons, institutions/ organisations to participate in the process of allotment, whether by way of auction or otherwise In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.

34. The allotment of land by the State or its agencies instrumentalities to a body organisation/ institution which carry the tag of caste, community or religion is not only contrary to the idea of Secular Democratic Republic but is also fraught with grave danger of dividing the society on caste or communal lines. The allotment of land to such bodies organisations/institutions on political consideration or by way of favourtism and/ or nepotism or with a view to nurture the vote bank for future is constitutionally Judgment 13 wp2384.21-1.doc

impermissible."

19. The above finding is rendered in the context of the

issue of allotment of land to the bodies/organisations/

institutions upon political consideration or by way of favouritism

or nepotism or with a view to stop opening of floodgates for such

allotments in future. The Hon'ble Supreme Court held that such

allotment of land is Constitutionally impermissible.

20. In our considered opinion, the aforesaid findings

must not be read in isolation and that they need to be understood

by reading together with them observations in other paragraphs.

Then, by order dated 19th April 2021 in Suo Moto IL No.4/2020,

this Court has neither directed nor even indicated to consider

allotment of land in breach of any provisions of any law. In fact,

the answer to the submissions made by Shri Kaptan, senior

counsel, can be found by also considering observations in

paragraph 18 of the same judgment which read as under :-

"18. For achieving the goals of Justice and Equality set out in the Preamble, the State and its agencies/ instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and State Legislatures bestow upon them Judgment 14 wp2384.21-1.doc

powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers / officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/ or its agencies / instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State of public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of rule of law."

(emphasis supplied)

21. Thus, it is clearly found by the Hon'ble Supreme Court

that in the larger public interest and for public good, the State

Government can use its discretion to achieve such public interest. In

fact, there are provisions to that effect in the Maharashtra Regional and

Town Planing Act, 1966, so also the Nagpur Improvement Trust Act,

1936 which will come to a little later.

22. Shri Dharmadhikari, learned senior counsel for the

petitioner, in response to the submissions made by Shri Kaptan, learned Judgment 15 wp2384.21-1.doc

senior counsel for respondent no.3 contends that directions in

paragraph 9 of the judgment dated 19 th April,2021 were issued in

public interest. Efficient and effective health structure was need of the

hour and will be helpful for all times to come. The order is applicable

to all private hospitals which together constitute a class in itself in the

sense that if any private hospital intends to set up oxygen plant and

other amenities, it was given liberty to apply for allocation of any

adjoining land, if any, which belonged to State Government or the

Corporation and the same was directed to be made available by

completing all formalities by the authorities like the respondents, that

too on payment of appropriate market value of the land or premium

determined as per the market value of the land. Thus, it is argued that

any private hospital could have applied for allotment of land and the

petitioner-hospital is one of such hospitals. According to petitioner, the

contentions of respondent no.3 that there will be a flood of such

requests is without any substance.

23. We do find force in the aforesaid submissions. The order

dated 19th April 2021 passed in Suo Moto PIL No.4/2020 was already

in public domain. It allowed all private hospitals to apply for allotment

of adjoining land. It was equitable in nature and public oriented in its Judgment 16 wp2384.21-1.doc

impact. Its purpose was to save precious human lives, then and future,

by increasing medical oxygen production capacity by putting together

pubic and private resources. It was issued with a view to encourage

private hospitals to contribute their bit in strengthening the

infrastructure relating to production of medical oxygen. The reason

was that Government alone could not have expanded the existing

infrastructure for various reasons. There was lock-down in force,

number of patients were increasing on every passing day, there was

shortage of medicines, medical oxygen and even Doctors and trained

staff, there were no beds available in Covid hospitals, the Government

was running short of money on account of closing down of various

businesses with resultant decline in accumulation of revenue, there

was paucity of time and there was inadequacy of manpower as well.

In other words, task was Herculean and time was slippery. This

required the State and Corporation or the local authorities like the NIT,

which was in the same position as the Corporation, to come forward

with a helping hand and complete all formalities like granting

exemptions, notifying de-reservations etc. and allot the land by

exercising the discretion for serving a public cause, for achieving

greater good of greater people, whenever it received applications from

private hospitals for allotment of adjoining land. If any of such Judgment 17 wp2384.21-1.doc

applications lacked in some details or was addressed to just one

authority though it ought to have been addressed to more than one

authorities, given the jurisdictional issues, it was the duty of the State

to co-ordinate between the hospital and multiple authorities involved

in the whole process and see that all necessary permissions etc. were

issued and land was allotted, lest healthcare of the patients in the State

suffered. The State was thus expected to play a pro active role, all for

improving the health care system of the State.

24. The proposal of the petitioner, however, has not found

favour with the NIT rather, we find that there is resistance to it on the

part of the NIT. Surprisingly, the NIT also does not come out with a

case that it would utilise this piece of land by setting up an oxygen

plant on its own or in collaboration with some others. On the contrary,

we can notice that NIT sees a difficulty when a private hospital like

the petitioner shows its willingness to contribute towards a public

cause at its own expenses. The Division Bench of this Court had,

through its order dated 19th April 2021, triggered a process of

amalgamation of Government effort with private enterprise with aview

to build up a robust health infrastructure within four corners of the law

but it appears now that the alloy of sound health infrastructure is far Judgment 18 wp2384.21-1.doc

from being created and health management of the patients has taken a

back seat.

25. Man is considered to be intelligent because he is gifted with

the ability to learn from the mistakes. During first and second wave of

Covid-19 pandemic, we suffered a lot; we also learnt something. We

learnt that our suffering became worse due to paucity of medical

oxygen on several occasions, but what have we not learnt is how to

alleviate our sufferings. We feel that any civil society is intelligent and

we wish it to remain so, if we allow it to be so. It means, let us not

repeat our mistakes and do whatever we can in whatever way it is

possible and as permissible in law, to build up a strong health

infrastructure.

26. Coming back to this case, we find that it is not even the case

of respondents that many such applications have been received by

them. It is so because there may not be many hospitals where adjoining

land is belonging to the State Government or Corporation or NIT. The

order dated 19th April 2021 does not say any hospital may apply for

allotment of Government land situated in any place in city. The

argument of respondent No.3 for such allotment will open floodgate of Judgment 19 wp2384.21-1.doc

similar requests is uncalled for. Rather, the proper spirit would be to

entertain as many applications of similar nature as will be received in

this regard to build medical infrastructure to handle a situation like

present Covid-19 pandemic.

27. Shri Dharmadhikari, learned senior counsel, in this

regard, has rightly placed reliance upon the judgment in the case of

Prem Chand Shah and another vs. Union of India and another: (1991)

(2) SCC 48 wherein, the Hon'ble Supreme Court while dealing with

the argument by the petitioners therein of treating unequals as equals

under the import and export policy held in paragraph 8, as under :

"8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to be protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversly discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia Judgment 20 wp2384.21-1.doc

which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."

(emphasis supplied)

28. What we find in the underlined portion in paragraph 8 of

above judgment, so also in paragraph 18 of the Akhil Bhartiya

Upbhokta Congress's judgment cited by respondent no.3 is the answer

to the difficulties put forth by the respondents in processing the

proposal of the petitioner in terms of the order passed by this Court.

The Respondents ought to have processed the proposal in terms of

order passed by this Court which if intended to be executed would find

support in the judgments cited by both the parties.

29. Apart from the above, the answer also lies in Rule 26 of

the NIT Land Disposal Rules, 1983 which provides as under :-

"26. The Government may, for the reasons to be

recorded in writing, relax any of these rules in respect

of a case which, in its opinion, is of a special nature."

30. The above rule takes care of the apprehension of the Judgment 21 wp2384.21-1.doc

respondent no.3-NIT that the land under question cannot be

allotted in terms of NIT Land Disposal Rules, 1983. This

provision enables the Government to relax any of these rules in

respect of a case, which is considered by it to be of special nature.

In our view, any application based on the order dated 19 th April

2021 passed in Suo Moto PIL No.4 of 2020 would be the one

which by itself would be in a class of special nature, we are,

therefore, of the opinion that the apprehension of the NIT that

any positive consideration of the case of the Petitioner would

lead to a train of more requests for allotment of land is without

any reasonable foundation.

31. Another such provision finds place in Section 37 of

Maharashtra Regional and Town Planning Act, 1966, more

particularly Section 37(1)(1AA)(a), which reads thus,

"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 Judgment 22 wp2384.21-1.doc

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.

(1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereupon the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority.

(1AA)(a) Notwithstanding anything contained in sub- sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development plan of such a nature that it will not change the character of such Development plan, the State Government may, on its own, 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 the Planning Authority.

(b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the Government.

(c) The State Government shall, after giving hearing to Judgment 23 wp2384.21-1.doc

the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, publish the approved modifications with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development plan shall be deemed to have been modified accordingly.

(1-B) Notwithstanding anything contained in sub- section (1), if the Slum Rehabilitation Authority appointed under section 3A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 is satisfied that a modification of any part of, or any proposal made in, a final Development plan is required to be made for implementation of the Slum Rehabilitation Scheme declared under the said Act, then, it may 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.

(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."

(Emphasis supplied)

32. To our understanding, Section 37(1)(1AA)(a) Judgment 24 wp2384.21-1.doc

empowers the State Government to urgently modify Development

Plan, in public interest but without changing the character of such

Development Plan. The petitioner is seeking 10000 Sq.Ft. land

out of 87833.509 Sq.Ft. which is reserved for Primary School

since the year 1968. We feel that the reservation of the land that

appears in Development Plan would not change the character of

the plan if a small piece of 10000 Sq.Ft. out of 87833.509 Sq.Ft.is

allotted to be used for the cause which is in the interest of public

at large, particularly when the purpose for which the land is

reserved is waiting its implementation for last more than fifty

years.

33. The aforesaid provisions have been quoted just to indicate

the recourse that was available to the parties before us had there been

intention to comply our order dated 19 th April 2021 in its proper spirit.

In addition, the respondents are at liberty to invoke such other

provisions as could help the cause of strengthening the medical

infrastructure in Nagpur city. The respondents are at liberty to have

additional measures apart from one that we are dealing with to

empower the medical / health infrastructure in Nagpur city.

34. In the light of the above and since we have found that Judgment 25 wp2384.21-1.doc

the Respondents have failed to process the proposals dated 28.04.2021

and 02.06.2021 forwarded by the petitioner in the manner as

expected in terms of the order dated 19 th April 2021, they are directed

to process these proposals afresh in the light of the observations made

in the body of this order. In particular, we direct respondent Nos. 2

and 3 to do so while ignoring decision of respondent no.3 rejecting

these proposals and communicated vide respondent no.3's letter dated

26.12.2021 to the petitioner and forward these proposals for necessary

permission/approval afresh in coordination with each other to the

respondent No.1 at the earliest and preferably within four months from

the date of the judgment. We further direct respondent No.1 to take

appropriate decision on the proposals as per law, keeping in view the

observations made hereinabove and by taking necessary steps, if

required, in accordance with law, within three months from the receipt

of the proposals.

35. So far as the disputed construction is concerned which is

the subject-matter of demolition notice dated 7 th July 2021, the same

shall not be demolished until final decision of the respondent no.1,

upon forwarding the proposals to it by respondent nos.2 and 3 is

rendered subject to the condition that the petitioner shall furnish an Judgment 26 wp2384.21-1.doc

undertaking to this Court that within two weeks from the date of the

order that if the proposals forwarded by respondent nos.2 and 3 are

found to be not acceptable by respondent no.1, the petitioner shall

demolish the disputed structure within fifteen days from the date of

receipt of the communication to the petitioner indicating rejection of

proposal by the respondent no.1. The Writ Petition is accordingly partly

allowed. Rule accordingly. No order as to costs.

36. At this stage Shri Kaptan, the learned Senior Advocate makes

a request to issue direction to the petitioner to deposit with respondent

No.3 an amount of Rs.56,48,440/-. Such a request, however, cannot

be considered at this stage for the reason that we have directed the

respondents to consider the proposals of the petitioner. Therefore,

decision in this regard is left to be taken by respondent No.1 at the

time when it finally decides the proposals received by it in terms of this

order.

                (ANIL L.PANSARE, J)                     (SUNIL B. SHUKRE, J)
sahare.




                                                                 Digitally Signed ByNARENDRA
                                                                 BHAGWANTRAO SAHARE
                                                                 Location:
                                                                 Signing Date:21.02.2022 18:38