SAI KRIPA MANGAL KARYALAYA & ORS. VERSUS NAGPUR MUNICIPAL CORPORATION & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 5577 of 2004, Judgment Date: Feb 12, 2015
In absence of the sanctioned plan, we are of the view that the High
Court was not justified in deciding the disputed question of fact as to
whether the building was constructed in accordance with Town Planning
Scheme.
the High Court was
not justified in entertaining the so called Public Interest Litigation
filed by persons who had personal dispute with respondent no.4.
we set aside the impugned judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5577 OF 2004
SAI KRIPA MANGAL KARYALAYA & ORS. ... APPELLANTS
VERSUS
NAGPUR MUNICIPAL CORPORATION & ORS. ... RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal has been preferred by the appellants against the judgment
and order dated 30th April, 2002 passed by the High Court of Judicature at
Bombay, Nagpur Bench, Nagpur in Writ Petition No.1485 of 1984. By the
impugned judgment, the High Court allowed the writ petition filed by
respondent nos.5 and 6 and held as follows:
(i) The building permits granted by Nagpur Municipal Corporation to
the land belonging to respondent No.4-Gorakshan Sabha, a Public Trust
are unauthorized and illegal and hence buildings put up pursuant to
such building permits are liable to be demolished
(ii) The parties may make fresh applications seeking building permits
within one month from the date of judgment in accordance with revised
sanctioned development plan of 2000-2001 and the Planning Authority
shall dispose of such applications within four months.
(iii) The Planning Authority shall demolish the said structures if
they were found not in conformity with the revised sanctioned plan of
2000-2001.
2. The factual matrix of the case is as follows:
2.1 One Shri Dhondiba Diwadkar gifted land bearing Survey No. 471,
admeasuring 18.25 acres situated at Mouza Lendhra, Tahsil, District Nagpur
to respondent No. 4 - Gorakshan Sabha, a Public Trust. The said land was on
the outskirts of Town of Nagpur and with the passage of time is now within
the Municipal limits of City of Nagpur.
2.2 In the year 1936, the Nagpur Improvement Trust Act (For short, '1936'
Act) was enacted with a view to make provisions for the improvement and
expansion of the then town of Nagpur. Under the 1936 Act a Trust namely
Nagpur Improvement Trust (hereinafter referred to as 'N.I.T' for short) was
constituted and N.I.T was empowered to frame various improvement schemes
specified u/s 27 of the 1936 Act for any area and on such scheme being
sanctioned by the State Government, the N.I.T. was to implement the scheme,
if necessary by acquiring the land as contemplated under the 1936 Act.
2.3 With the gradual development of "Town of Nagpur" into the "City of
Nagpur", the city of Nagpur Corporation Act, 1948 (for short, 'the
Corporation Act') was enacted with a view to make special legislative
provisions to consolidate and amend the law relating to the Municipal
affairs of the City of Nagpur. Section 2 of the Corporation Act
specifically provides that the N.I.T constituted under the 1936 Act shall
in the city of Nagpur continue to exercise the powers and perform duties
conferred and imposed under the 1936 Act. Section 3(5) of the Corporation
Act provides that all the provisions of 1936 Act shall apply to the city of
Nagpur. Section 5(10) of the Corporation Act defines "City of Nagpur" means
the larger urban area specified in the notification issued under Clause (2)
of Article 243(Q) of the Constitution of India. With the enactment of the
Corporation Act, certain amendments to the 1936 Act were carried out. As a
result of amendment to section 1(2) of the Trust Act, the jurisdiction of
N.I.T. was extended to the area comprised within the limits of the city and
to such other area outside these limits as the State Government may declare
from time to time by notification. Section 2(m) of 1936 Act which was
amended in 1952 provides that all references to anything required to be
done under the 1936 Act shall include anything required to be done under
the Corporation Act which the N.I.T by virtue of 1936 Act has power to
enforce. Thus, both the Nagpur Municipal Corporation ('N.M.C' for short)
constituted under the Corporation Act and the N.I.T constituted under the
1936 Act were entrusted with the responsibility of the orderly development
of the city of Nagpur.
2.4 In the year 1966, the State Government enacted the Maharashtra
Regional and Town Planning Act, 1966 ('T.P. Act' for short) inter alia,
with a view to make provisions for planning the development and use of
lands in the regions established for that purpose and for the constitution
of Regional Planning Boards thereof for the creation of new towns by the
Development Authorities. Section 2(15) of the T.P. Act defines the local
authority, to include inter alia, the N.M.C. under the Corporation Act,
1948 and the N.I.T. constituted under the 1936 Act, which, on being
permitted by the State were entitled to exercise the powers of a Planning
Authority under the T.P. Act for any area under its jurisdiction. Section
2(19) of the T.P. Act defines 'Planning Authority', as local authority
which includes such other authorities as prescribed under the Act. Under
the T.P. Act, it is obligatory on the part of the Planning Authority to
survey a region and prepare an existing land-use map and prepare a draft
development plan for the area within its jurisdiction in accordance with a
regional plan or in such other manner as may be prescribed. Section 22 of
the T.P. Act provides that a development plan shall generally indicate the
manner in which the use of the land in the area of a Planning Authority
shall be regulated, and also indicate the manner in which the development
of a plan shall be carried out. It is further provided in Section 22 of the
T.P. Act that the development plan in particular shall provide for
proposals for allocating the use of land for the purposes, such as
residential, industrial, commercial, agricultural, recreational and
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 State Government. The T.P. Act
provides for modification of the draft plan on receiving objections and
suggestions from the general public. Section 31 of the T.P. Act provides
for sanction to the draft development plan by the State Government and on
the final development plan coming into force it is binding on the Planning
Authority. Section 42 of the T.P. Act provides that on the coming into
operation of any plan or plans referred to Chapter III of T.P. Act, 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. Section 43 of
the T.P. Act provides restriction on the development of a land after the
date on which the declaration of intention to prepare a development plan
for area is published in the Official Gazette. Thus, once declaration of
intention to prepare draft development for any area or a 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 change the use of the land or carry out any development of the land
without the permission in writing of the Planning Authority except as
permitted under proviso appended thereto.
2.5 By a notification dated 6th October, 1967 the State Government
permitted N.I.T. to exercise the powers of a Planning Authority under
section 2(15) of the T.P. Act for the entire area under its jurisdiction.
2.6 In accordance with the aforesaid provisions, the N.I.T. on 12th
December, 1972 published draft development plan of the city of Nagpur and
the same was published in the Government Gazette on 28th December, 1972.
After considering the objections and suggestions, modifications to the
draft development plan were made on 20th October, 1973 and the same were
published on 17th January, 1974. Subsequently the draft development plans
as further modified by the N.I.T. were forwarded to the State Government
for sanction under section 30(1) of the T.P. Act on 23rd October, 1974. The
State Government extended the period for sanctioning such plan and
ultimately with minor modification the draft development plan was approved
by the State Government. Thus, the final development plan for the city of
Nagpur, as sanctioned by the State Government, came into force on 3rd June,
1976.
3. It appears that final development plan came into effect from 3rd
June, 1976. Both N.M.C and N.I.T were granting
development permission in their respective areas and later, Government
noticed the problems created due to the existence of two sets of
regulations in the Municipal Corporation Area. For the said reason, Deputy
Secretary to the Government, Urban Development Department Mantralaya,
Bombay, vide letter dated 1st January, 1993 intimated the Municipal
Commissioner, N.M.C, Nagpur about Government decision that draft byelaws
published by the N.M.C u/s 169 of the T.P. Act read with Section 115 and
other sections of the Corporation Act, 1948 will not be operated and the
N.M.C like N.I.T will follow the draft Development Control Rules and
Building Byelaws prepared by the N.I.T as submitted to Government on 12th
October, 1990 which are under scrutiny of Government until further orders.
The aforesaid letter being relevant reads as follows:-
"Confidential No.TPS 2490/1504/CR-101/UD-9
Urban Development Department
Mantralaya, Bombay-400 032.
Dated: 1st January, 1993.
To,
The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
Sub: Regulation of Building Control Activity and
implementation of Development Control Rules and Building
Bye-Laws in Nagpur City.
Sir,
The Nagpur Improvement Trust (N.I.T) is a planning Authority
for the city of Nagpur in terms of the Maharashtra Regional & Town
Planning Act, 1956. Accordingly if prepared the development plan
alongwith building regulations and Development Control Rules were
approved by Government vide Notification No.:TPS 2476/478/UD-5, dated
the 3rd July, 1976.
With a view to standing the I.C. rules and building Bye-laws,
Government had directed all the Municipal Corporations i.e. the
Planning Authorities (Nagpur Improvement Trust in this case) to
undertake modification under Section 37 of the Act and follow
standardized Development Control Rules and Building byelaws and has
forwarded the proposal for government approval on 12th October, 1990.
2. The Nagpur Municipal Corporation (N.M.C) has framed the
building Byelaws under City of Nagpur Corporation Act, 1948 which were
approved by the Government vide notification No.N.M.C 5365/33770,
dated the 24th June, 1965. Subsequently, the Nagpur Municipal
Corporation in exercise of the powers conferred under section 159 of
the Maharashtra Regional Town Planning Act, 1966 read with Section 415
and other relevant sections of the City of Nagpur Corporation Act,
1948 published draft revised byelaws. Those byelaws have been sent to
Government for approval vide letter No.GAD/18/G, dated 24th February,
1987 and they are yet to be approved. Both the Nagpur Municipal
Corporation and Nagpur Improvement Trust are granting Development
permission in their respective areas.
Thus there has been no uniformity in the matter of the (not
eligible) There have been two sets of regulations operated in the
Municipal Corporation area and has been admittedly creating certain
serious problems.
3. Government has examined the matter and after careful
examination is pleased to issue directions under section 154 of the
Maharashtra Regional Town Planning Act, 1956 as follows:
"Pending the approval of Government for the proposal of
Development Control Rules and Building Byelaws submitted by the Nagpur
Improvement Trust vide its letter No.D/630, dated 12th October, 1990.
i) The draft Byelaws published by the Nagpur Municipal Corporation
under section 169 of the Maharashtra Regional Town Planning Act,
1956 read with Section 115 and other sections of the City of
Nagpur Corporation Act 1948 will not be operated.
ii) The Nagpur Municipal Corporation like Nagpur Improvement Trust
should follow the provisions in the draft Development Control
Rules and Building Byelaws prepared by the Nagpur Improvement
Trust as submitted to Government on 12th October, 1990 which are
under scrutiny of Government until further orders.
4. The action taken may please be intimated to government.
Yours faithfully,
(C.S.Pentabalekungri)
Deputy Secretary to Government"
4. Between 1973 and 1983 lands were leased to the appellants by
respondent no.4 and building plans were sanctioned by the N.M.C. The N.M.C
was empowered to issue NOC during the said period as evident from letter
dated 15th September, 1981 written by Circle Engineer (P1), N.I.T to Shri
Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted below:
"OFFICE OF THE NAGPUR IMPROVEMENT TRUST
No.Sch/NOC/2017 Nagpur, dated the 15.9.1981.
To
Shri Padmakar Joshi & Bros.
Sitabuldi, Nagpur.
Subject:-No Objection Certificate for Petrol Pump.
Reference:-Your application dated 29.6.1981.
With reference to above, I have to inform that the Nagpur
Municipal Corporation is empowered to issue no objection certificate
in conformity with proposals of Development Plan of Nagpur. You may,
therefore, approach Nagpur Municipal Corporation, Nagpur in this
matter.
Sd/-
Circle Engineer (P1)
Nagpur Improvement Trust."
From the aforesaid letter, it is clear that inspite of draft
Development Plan which was published on 25th December, 1972 followed by
final Draft Plan on 3rd June, 1976, the N.I.T abdicated its authority and
delegated it in favour of N.M.C by stating that N.M.C is empowered to issue
NOC in conformity with proposals of Development Plan of Nagpur.
5. Respondent nos.5 and 6 preferred a Public Interest Litigation under
Article 226 of the Constitution of India before the Bombay High Court Bench
at Nagpur inter alia, seeking a direction to N.M.C and N.I.T to remove the
structures standing on the lands owned by respondent no.4-Trust on the
ground that the same are contrary to the building regulations and the
development plan sanctioned by the State Government under the T.P. Act. In
the said writ petition, the impugned judgment was passed on 30th April,
2002 as noticed in the opening paragraph.
6. Learned counsel for the appellants while referring to the facts, as
narrated above, submitted that the writ petition was filed by respondent
no.5 after inordinate delay to vent out their personal vendetta. The said
writ petition cannot be termed to be Public Interest Litigation as
respondent nos.5 and 6 vented out their private dispute.
7. Learned counsel for the appellants further submitted that the said
writ petition was primarily filed by respondent no.5 claiming to be a
member of respondent no.4- Trust and respondent no.6 a member of the
locality alleging mismanagement by the said Trust in leasing lands to the
appellants. Apart from the aforesaid fact the respondent nos.5 and 6 did
not disclose the nature of public interest involved. A personal grudge of
respondent no.5 is clear as he was claiming to be a member of the Trust
which was not accepted by the Trust. It was further submitted that the writ
petitioners having not approached the Court with clean hands and it being a
private dispute between respondent no.5 and Trust the said writ petition
was not maintainable. It is further contended that in absence of challenge
to the sanctioned layout the High Court ought not to have declared them
unauthorized and illegal.
8. Learned counsel for the parties relied upon Section 2 (15) (c) (ii)
(iii), Section 2(19), 20 and 154 of the T.P. Act. Reliance was also placed
on final Development Plan dated 3rd June, 1976 sanctioned by the State
Government. A photocopy of True copy of Resolution dated 3rd June, 1976
enclosing copy of the notification issued under the letter head of N.I.T
alongwith part Development Plan of Nagpur City was also produced separately
for perusal.
9. Respondent nos.5 and 6 have taken similar pleas as were taken before
the High Court. Counsel for respondent no.4 also supported the case of
respondent nos.5 and 6.
10. We have heard the rival contentions raised by the parties and perused
the record.
11. It is not in dispute that the respondent no.4-Trust has leased the
property in favour of the appellants. Respondent no.5 was claiming to be a
member of the Trust and Respondent no.6 claims to be a member of the
locality and as noticed above they filed the writ petition before the High
Court alleging mismanagement by the Trust in leasing lands to the
appellants. But what we find is that the respondent no.4-Trust is now
supporting respondent nos.5 and 6.
12. The aforesaid fact clearly shows that writ petition filed by
respondent nos.5 and 6 was not bona fide but it was filed only on account
of personal disputes between the parties i.e. inter se between the members
of the respondent no.4-Trust indirectly affecting the appellants-tenants.
Respondent no.4-Trust in its reply before the High Court supported the
appellants but before this Court their learned counsel supported the case
of respondent nos.5 and 6.
13. There is no dispute that no such notification was issued by the State
Government empowering the N.M.C to exercise the power of Planning
Authority. By letter dated 1st January, 1993, the State Government asked
the N.M.C to follow the draft development Rules framed by the N.I.T there
being conflict between two draft Rules one drafted by the N.M.C and another
by N.I.T. The State Government on 27th February, 2002 has
rescinded/withdrawn the notification dated 6th October, 1967 and permitted
N.M.C to exercise the powers of a Planning Authority in the area under its
jurisdiction except the areas in which the N.I.T has improvement schemes as
more particularly set out in the said notification. Thus, prior to 1967
N.M.C was the authority to exercise the same power sanctioning the plan and
since 27th February, 2002 the N.M.C was again empowered to sanction the
plan. During the period from 1967 till 2002, though N.I.T was the Planning
Authority for the city of Nagpur, it abdicated its power, delegated it in
favour of N.M.C and did not sanction any building plan which is also clear
from letter dated 15th September, 1981 issued by N.I.T to one Shri Padmakar
Joshi & Bros., Sitabuldi, Nagpur as quoted above.
14. True copies of notification dated 3rd June, 1976 and Part Development
Plan of Nagpur City have been produced wherein respondent no.4-Gorakshan
Sabha has been shown within the area of public institutions and offices. In
absence of original coloured plan the true copy of the plan cannot be
relied upon to hold any construction illegal in view of the fact that the
N.M.C which sanctioned building plan supposed to have gone through the
original plan.
15. In absence of the sanctioned plan, we are of the view that the High
Court was not justified in deciding the disputed question of fact as to
whether the building was constructed in accordance with Town Planning
Scheme. The High Court ought to have looked into the sanctioned plan to
find out whether it was for office (Karyalaya) or for residential or for
commercial purpose for coming to a definite conclusion. Further, there
being a long delay of eight years in filing the writ petition and in
absence of challenge to the plan sanctioned by N.M.C, the High Court was
not justified in entertaining the so called Public Interest Litigation
filed by persons who had personal dispute with respondent no.4.
16. For the reasons aforesaid, we set aside the impugned judgment and
order dated 30th April, 2002 passed by the High Court of judicature at
Bombay, Nagpur Bench in Writ Petition No.1485 of 1984 and dismiss the Writ
Petition preferred by respondent nos.5 and 6. The appeal is allowed but
there shall be no orders as to cost.
....................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
....................................................J.
(PRAFULLA C. PANT)
NEW DELHI;
FEBRUARY 12, 2015.