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M/s. Bombaywala and Others Vs. State of Maharashtra, through its Secretary, Urban Development Department and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberWrit Petition No. 2695 of 2015
Judge
AppellantM/s. Bombaywala and Others
RespondentState of Maharashtra, through its Secretary, Urban Development Department and Others
Excerpt:
nagpur improvement trust act, 1936 - section 31, section 39 -land acquisition act,1894 -section 4 - nagpur improvement trust (land disposal) rules, 1993 -rule 5(2) maharashtra regional and town planning act, 1966 - section 39,section 22, section 59,section 127- acquisition of land - deceased was the owner of property which was partitioned amongst his legal heirs and their shares are devolved upon descendants/respondents petitioners/board of trustees of nit passed a resolution to frame the scheme under section 31 of the act, 1936 involving acquisition of properties and issued notices for removal of unauthorized tenants - petition was filed challenging government resolution along with the notices of demolition which was dismissed hence instant petition issue is whether of sanction.....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 market on the sides of mahatma gandhi road and abhyankar road, located in 'v' shape, from the junction of variety square,.....
Judgment:

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 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 coordination 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 shopkeepers 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 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.

(3) Abhyankar Road is proposed to be widened from existing 26 45 feet to 60 feet. The buildings to be constructed and reconstructed 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 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.

(7) 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 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 shopkeepers and the residents in the area covered by the Scheme, formed the Association, viz. Buty Mahal Merchants and Professional Tenants 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 reconstituted plot and showed their willingness to accommodate all the tenants in the reconstituted 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 reconstituted plot and to 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 reconstituted 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 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 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 n 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 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 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 reconstituted 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 landowners Buty family assigned the rights of development of Khasra No.320, bearing corresponding 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 reconstituted plot, admeasuring 1,14,079.36 square meters.

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 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 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 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 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 partheard.

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. 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 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 AnnexureR4.

Thus, the NIT, in categorical terms, has admitted that the Scheme provides connectivity between two roads, viz. 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 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.

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 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 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 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 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 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 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 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?

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 rebuilding scheme;

(c) a rehousing scheme;

(d) a street scheme;

(e) a deferred street scheme;

(f) a development scheme;

(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 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 relaying out of all or any of the lands so acquired, including the construction and reconstruction 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 out, 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 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, reconstruction 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:

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 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 pr ovisions 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 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, parkways, railways, waterways, canals and air ports, including their extension and development; ...

The development plan prepared under Section 21 of the 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 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 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.

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.

(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 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 the 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:

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 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 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 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:

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, 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 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 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 SchemeTotal area notified under the scheme (Approx.) in Hectares
(1)(2)(3)
1.Eastern Industrial Area Street Scheme.320.60
2.Itwara Station Road Street Scheme.4.77
3.Sitabuldi (West) Improvement Scheme.6.15
4.Abhyankar Road and Buti Mahal Steet Scheme.3.24
5.Wathoda Extension Housing Accommodation cheme (New Scheme).170.00
6.Shivangaon Jaitala Township (New Scheme).257.00
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 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 and 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 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 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 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 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 and 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 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 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 29A and 29B. 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.

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 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, 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 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 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 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 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 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.(iib), 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 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.

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 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.

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.

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, parkways, 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 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 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.

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 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 paperbook 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 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 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 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 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 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 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 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 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 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 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 :

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.

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 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 road50 feet and the parking. Even the insistence of the NIT upon the petitionertenants, as is apparent from the impugned notices, is to accept the terms of compromise dated 8-4-2002. It is 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.

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 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 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.

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 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 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 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 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.


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