B.P. Dharmadhikari, J.
1. In this Public Interest Litigation basically modification in user of a plot in Development Plan, its allotment to Respondent No. 9, illegal building construction upon it and failure of land owner Nagpur Improvement Trust (N.I.T.) or Planning Authority Nagpur Municipal Corporation to exercise rights or to discharge obligations, are the challenges which arise for consideration. The development plan was finalized under S. 31 of the Maharashtra Regional and Town Planning Act, 1966 (hereafter MRTP Act) and NIT constituted under the Nagpur Improvement Trust,1936 (NIT Act hereafter) was the planning authority in respect of said plot till 27.02.2002. Thereafter, it is the NMC functioning under the City of Nagpur Corporation Act, 1948. The Development Control Rules of 1983 and 2000 (hereinafter DCR) also need to be looked into.
2. Subject matter is a plot having House No. 1155 CTS No. 1143 at Ward No. 74, ad measuring little over 1.14 Acre. The said plot is for commercial use now. However, at the time of its initial lease on 23.09.1961, granted by the owner NIT to Respondent No. 9 Public Trust (Sabha hereafter), it was meant for public utility.
3. The reliefs claimed in the petition are to direct Respondent No. 8 NIT to immediately cancel allotment of said land to Respondent No. 9 on account of violation of lease deeds, allotment letter and all Land Disposal Rules, to call upon said respondents to re-enter and take possession of plot and to conduct fresh public auction thereof. A direction is sought against Respondent No. 7 Nagpur Municipal Corporation and Respondent No. 8 to demolish unauthorized structure constructed by Respondent No. 9 over it. There is also a prayer for holding of CBI Inquiry and for prosecution of those who have duped State Exchequer. Consequential Resolution No. 29/988 passed by Respondent No. 8 on 30.03.2002, its Resolution No. 7/1034 dated 11.08.2005, Government Notification dated 21.02.2004 under Section 37 of the Maharashtra Regional and Town Planning Act, 1966, are also questioned and sought to be set aside. The Management Agreement signed by Respondent Nos. 9 to 16 (all Private hospitals) on 05.10.2005 as also lease deed by Respondent No. 8 in favour of Respondent No. 9 dated 21.12.2006 are also sought to be set aside. There is also a prayer to direct Respondent Nos. 9 to 16 to stop unauthorized and illegal use of demised property and to proceed departmentally against all officers. The last prayer is to recover property tax on said property at commercial rate with effect from 21.12.2006.
4. On 11.06.2013, this Court has issued notice only to Respondent Nos. 1, 3, 4, 5, 7, 8, 9, 12, 13 and 16. With the result, no notice has been issued to Respondent Nos. 2, 6, 10, 11, 14 and 17.
5. Considering the nature of controversy, we have heard the matter finally by issuing Rule and making it returnable forthwith with the consent of the parties i.e. Respondent Nos. 1, 3, 4, 5, 7, 8, 9, 12, 13 and 16 only.
6. We have heard Shri Tushar Mandlekar, learned counsel for the petitioner, Shri N.R. Patil, learned AGP for respondent Nos. 1, 3 and 4, Shri S.M. Puranik, learned counsel for respondent Nos. 5 and 7, Shri S.K. Mishra, learned Senior Advocate with Shri K. Deogade, learned counsel for respondent No. 8, Shri M.G. Bhangde, learned Senior Advocate with Shri A.P. Kalmegh, learned counsel for respondent No. 9, Shri C.S. Dharmadhikari, learned counsel for respondent No. 12, Shri S.P. Dharmadhikari, learned Senior Advocate with Shri P.D. Meghe, learned counsel for respondent No. 13 and Shri S.V. Manohar, learned Senior Advocate with Shri D.V. Chauhan, learned counsel for respondent No. 16.
7. Shri Mandlekar, learned counsel has submitted that Respondent No. 9 Maharashtra Rashtra Bhasha Sabha (Vidarbha Region) (hereinafter referred to as Sabha), applied to Respondent No. 8 on 24.12.1960 for allotment of a plot of land on North Ambazari Road to act in furtherance of and to advance its objects. Respondent No. 8 Nagpur Improvement Trust (NIT) on 29.12.1960 offered the plot on North Ambazari road (hereinafter referred to as suit plot) ad measuring 1.14 Acres. On 23.02.1961, the terms and conditions of allotment were also informed. As per terms and conditions, the plot could have been used for construction of a building for Sabha for carrying out its aims,objects, for purposes ancillary thereto and for no other purpose. It can not be transferred or otherwise disposed of. Sabha vide its communication dated 28.03.1961 accepted the allotment and terms and conditions. It also deposited necessary amount. A lease deed was then entered into between Respondent No. 8 Trust and Respondent No. 9 Sabha, on 05.11.1962. In Schedule to this lease deed, area of land is mentioned 44211 square feet. As the construction was not commenced by Sabha within the stipulated time of one year and building was not completed within two years, Respondent No. 8 on 10.09.1963 served a show cause notice on Sabha. On 16.09.1963, Sabha pointed out its difficulties. Thereafter no action was taken by Respondent No. 8 in the matter till 27.02.2002 i.e. the date up to which Respondent No. 8 NIT continued to be Planning Authority for suit plot. On 13.09.1996, lease deed was renewed for the period from 01.04.1991 up to 31.03.2021. This is in the face of a communication dated 07.08.1968 by Respondent No. 8 Trust to Respondent No. 9 Sabha, that building constructed was being used for office purposes, which form non confirming use.
8. Shri Mandlekar, learned counsel, submits that Respondent No. 12 Developer, on 19.12.1994 submitted a Development proposal to Respondent No. 9 Sabha, for construction of Wing 'A' and Wing 'B' was envisaged. Wing B was to cost Rs.3,87,00,000/- while Wing A to be used exclusively for Sabha was to cost Rs.76,00,000/-. On 08.08.1996, Respondent No. 9 Sabha executed in favour of Respondent No. 8 NIT, an indemnity bond agreeing to pay enhanced premium and ground rent or both in consideration of lease deed beyond 30 years. It also agreed to demolish construction done after renewal of lease, if so directed by the State Government. Thus, the renewal on 13.09.1996 was obtained in this background. Ultimately, through minor Notification under Section 37(2), on 29.02.2004, user of this suit plot was altered to commercial purpose on the condition that Respondent No. 8 would charge additional premium for extra Floor Space Index (FSI) becoming available as also additional ground rent. FSI was increased from 1 to 2.5. Shri Mandlekar, learned counsel submits that after giving indemnity bond and some understanding with Respondent No. 12 Developer, the first application for change of user was moved on 05.06.2000 and the Hon'ble State Minister immediately called for necessary report with direction that it should be submitted within 10 days.
9. A multistory complex with various amenities such as Auditorium, Office hall, Library, Conference Room, Guest Room and other independent units was to be developed for Respondent No. 9. This was to be identified as Wing 'A' while the shops and other commercial premises was to form part of Wing 'B'. After the Hon'ble Minister called for Report within 10 days, Law Officer of Respondent No. 8 on 09.06.2000 pointed out that a policy decision needed to be taken. He also pointed out that Development Control Rules were to be finalized and hence the question whether to permit transfers and sub-lease be addressed to after finalizing and approving the same. NIT on 17.08.2000 wrote to the Principal Secretary, Urban Development Department of the State Government and pointed out that no sub-division of demised plot was permitted.
10. On 10.04.2001, Respondent No. 9 Sabha directly sent a communication to the Hon'ble Chief Minister, seeking his intervention, pointing out lack of funds and financial support to achieve its aims and objects. It also pointed out that similar permission for commercial use was given in the case of Vidarbha Sahitya Sangh, Nagpur, and Tilak Patrakar Bhawan, Nagpur, in whose cases minor modifications were allowed. This communication was sent by the President of Nagpur Division of Respondent No. 9. Through another communication of same date sent to the Hon'ble Chief Minister, permission to sub-lease was also sought, pointing out that NIT can charge necessary premium and give permission to sub-lease. Shri Mandlekar, learned counsel, points out that this request was already rejected by the NIT on 17.08.2000.
11. Our attention is also drawn to the fact that this plot was shown as public utility plot in final development plan and the effort was to obtain change of user to commercial purposes. All this was being done when Respondent No. 12 Developer was already there. Agreement of development between Sabha and Respondent No. 12 dated 21.02.1999 provided for construction of Wing 'A' with super built up area of 15000 sq. ft. and Wing 'B' (Commercial complex) admeasuring 29211 square feet. The Wings were to remain property of owner i.e. of Respondent No. 9 Sabha and cost of construction was to be collected in the form of non-refundable deposit from prospective tenants by the Developer on behalf of Sabha. Sabha agreed to execute and register lease in favour of such persons nominated by the Developer. Clause 6 of this agreement also contemplated that if FSI in excess of 1.25 became available, Sabha and Developer would mutually revise the terms and conditions of this agreement to proportionately share the additional benefits. Shri Mandlekar submits that the Hon'ble Chief Minister was approached directly at the instance of Respondent No. 12 and pressure was brought on him and the local machinery to change the user in Development Plan from public utility to commercial one.
12. As permission under Section 36 of the Bombay Public Trust was required by Respondent No. 9, it had moved the application for that purpose and on 11.08.1999, incharge Joint Charity Commissioner, Pune Region, Pune, while allowing that application, granted permission to sub-lease the property to Developer for the period up to 31.03.2021, subject to getting permission from the NIT. The said authority also directed completion of transaction within one year and filing of necessary change report. The order was made subject to all existing laws governing such transactions. The Income-tax Authorities granted permission under Section 269(U1) of the Income-Tax Act, 1961, for use of FSI but subject to approval of the Charity Commissioner. The challenge to the order of Joint Charity Commissioner was decided by High Court in Writ Petition No. 2661 of 2001 on 18.10.2001 and the said order was upheld. The Hon'ble Apex Court disposed Civil Appeal No. 4930 of 2004 on 03.08.2004. The Hon'ble Apex Court modified the order slightly after taking note of the fact that the construction of building was almost complete and Respondent No. 9 made a statement that rent of rupee 1/- per square feet per month was enhanced to Rs.2/- per square feet per month, thereby augmenting yearly income by Rs.3,60,000/-. Shri Mandlekar, learned counsel, submits that thus sub-lease was permissible subject to clearance from NIT and that was already rejected on 17.08.2000. It was never sought thereafter.
13. The communication dated 31.07.2001 sent by the Town Planning Department of the State Government to the Secretary, Urban Development Department, is pressed into service to point out that only in certain exigencies an additional FSI can be sanctioned to a public trust like Respondent No. 9. FSI one or built up area of 2880 sq. mtrs. was found sufficient. The proposed extent of commercial area is also considered in this communication. The Town Planning Department has noted that it constituted 80% of total proposed built up area and hence most of the additional FSI, was not to be used by Respondent No. 9 Sabha a public trust. It, therefore, recommended not to sanction additional FSI to Respondent No. 9 Trust. It also opined that as per its earlier recommendation given after inviting objection, North Ambazari road was to be included in the list of roads on which commercial activities were not allowed. The authority, therefore, submitted that commercial user of said plot should not have been allowed.
14. The communication dated 29.08.2002 sent by the said department to the Principal Secretary, Urban Development Department on same lines, letter dated 30.09.2002 sent by the Executive Engineer to the Urban Development Department, opposing change of user, letter dated 10.10.2002 sent by the Nagpur Municipal Corporation to Urban Development Department opposing change of user, are all pressed into service to urge that for valid reasons, these authorities have been opposing commercial user of said plot.
15. Suddenly on 16.07.2003, Nagpur Municipal Corporation wrote to the Urban Development Department, pointing out its Resolution No. 84 dated 27.12.2002 and requested reconsideration of issue of change of user. On 25.08.2003, Town Planning Department objected to constant efforts being made for change of user though said request was already turned down. The Director of Town Planning recommended appropriate disciplinary action against the officers of Nagpur Improvement Trust and Nagpur Municipal Corporation, who should have supervised erection of building on suit plot. Shri Mandlekar, learned counsel, submits that on 28.04.2003, the State Government communicated to Respondent No. 9 that such change of user was not permissible.
16. Thereafter on 03.10.2003, the Chief Minister was again approached for said work and requested to pay personal attention. This communication was sent by the President of Nagpur Unit. The National President also sent a personal letter to the Hon'ble Chief Minister in his name on 08.10.2003 and sought intervention. The then Chief Minister wrote back to the National President intimating that necessary steps were being taken. On 21.10.2003, Special Executive Officer in Town Planning Department wrote to the Nagpur Municipal Corporation and Nagpur Improvement Trust on the request of Respondent No. 9 for change of user and sought immediate information. On 19.12.2003, the President of Nagpur unit again wrote to the Hon'ble Chief Minister on the subject of sanctioning additional FSI and pointed out visits paid by the Principal Secretary Shri Tiwari to said plot. Petitioner highlights this background in which Notification dated 21.02.2004 came to be issued deleting Public/ Semi Public use and including CTS No. 1643 in commercial use. On condition that NIT would charge appropriate premium from Respondent No. 9 for change of user as also for additional FSI. Shri Mandlekar, learned counsel submits that all this has been done mechanically and resolution of the Planning Authority i.e. Nagpur Municipal Corporation dated 26.12.2002 proceeded under the impression that suit plot belong to Respondent No. 9. Even the earlier two refusals were also ignored.
17. He submits that one Shri S.R. Patil, had raised valid objection to the entire process on 09.05.2003. On 07.05.2003, Nagpur Municipal Corporation was approached by Respondent No. 9 pointing out personal grievance of said Patil in the matter and grudge entertained by him.
18. Shri Mandlekar, learned counsel submits that in this process, deletion from reservation as ordered on 21.02.2004 under Section 37(2) is without jurisdiction and shows non application of mind. The owner NIT never sought said change of user and did not pass any resolution to support it. The State Government did not consult NIT before issuing the impugned notification dated 21.02.2004. The deletion of reservation is dealt with under Section 50 of M.R.T.P. Act. Similarly, change to commercial use is a major change. All this necessitated adherence to procedure prescribed in Section 29 read with Section 31 of the M.R.T.P. Act. He has invited our attention to Section 22A thereof to explain what is substantial change. By way of abundant precautions, he adds that as FSI was increased by 150%, it was a case of major modification not amenable to Section 37. Section 31 of the M.R.T.P. Act is pressed into service by him to show that Section 31(6) is binding on the Planning Authority, to urge that procedure envisaged under Section 29 of the M.R.T.P. Act, ought to have been followed for such changing of user to commercial purposes. He seeks to rely upon the judgment in the case of Housilal Balchand Shah vs. State of Maharashtra and Ors., reported at 2006 (3) Mh.L.J. 763.
19. North Ambazari road was supposed to be no shopping frontage street. In this situation, as change of user was already rejected on three occasions, review of that order is/was not permissible in law. Section 37 of the M.R.T.P. Act contemplates a satisfaction that change is necessary and that it is of minor nature. Here, no such satisfaction was reached by any of the Planning Authority or by the owner. No notice of change was served upon the owner NIT or neighbours of the property and proper inquiry under Section 37(2) was never held. The Town Planning Authorities were not effectively consulted and no opportunity of hearing was extended. Thus, with oblique motive, order of rejection of permission passed on 28.04.2003 was suddenly changed to approval on 21.02.2004 without any change in situation. This change of user, according to the petitioner, is only to benefit few as mentioned in Ground No. 20 of writ petition.
20. It is urged that valid assertions in ground 20 are opposed by the respondents only to confer personal benefit on Respondent No. 9 and other respondents like Developer. The State Government did not look into original allotment letter and terms and conditions thereof. Similarly, Land Disposal Rules of NIT were ignored. Rules 6 and 7 provide for auction of commercial land. Once the land is allotted under the Development Control Rules, after change of user as in present case, there has to be a fresh auction after suit plot was allowed to be used commercially. Support is being taken from Rule 5(i), 5(2)(i) and Rule 6 for said purpose. The Resolution of NIT dated 11.08.2005 allotting the land by charging additional premium of Rs. 30 lakh is also questioned by him. It is arbitrary, without following procedure and NIT or public has suffered pecuniary loss in the process. Ground rent at 3% is, therefore, also inadequate. All this has resulted in violation of Rule 7(3) of Land Disposal Rules by NIT framed in 1983. The exercise of calculations undertaken by NIT on 16.11.2005 is also explained with contention that there value has been determined as if land is being allotted in the year 1961. 1961 value of subject plot was Rs.20,266/- and it has been used as base and compared to arrive at figure of the additional amount charged i.e. of Rs.29,67,297/-. 2005 Ready reckoner rate is Rs.23,000/- per square meter and hence value of suit plot then was not less than Rs.23,60,85,672/-.
21. To demonstrate loss caused to public exchequer, our attention is invited to lease deed dated 28.03.2007 executed by Respondent No. 9 in favour of M/s. SMG Hospitals Private Limited (as lessee) with Respondent No. 12 Developer as confirming party. It is submitted that it is for Rs.6.50 crores. Thus, by paying amount of Rs.30 lakh in public exchequer, Respondent No. 9 could pocket Rs.6.20 crores immediately. He further submits that 9 shops constructed on suit plot were sold on 07.05.2002 for Rs.1,61,04,000/- each. By pointing out dates of payment shown in this lease document, it is contended that these payments were made even before Respondent No. 8 gave land to respondent No. 9. Respondent No. 12 sold its rights to M/s. SMG Hospitals Private Limited (Respondent No. 13) and thereafter on 21.12.2006, lease deed has been executed by Respondent No. 8 NIT in favour of Respondent No. 9 Sabha. Shri Mandlekar, learned counsel, submits that huge amounts which changed hands even before these formalities were completed, show nothing but influence of various persons in the matter.
22. None of the parties had any No Objection Certificate from NIT at the time of registration of lease deed by Respondent No. 9 in favour of other persons. Our attention is also drawn to Resolution No. 29/988 dated 30.03.2002 whereby NIT permitted only 15% of plot area to be used for commercial purposes after obtaining indemnity bond from Respondent No. 9. The provisions of Rule 25 of Land Disposal Rules are relied upon heavily to urge that these Rules prevail over lease agreements. Our attention is also drawn to provisions contained in N7. In the face of express stipulation in lease deed, prohibiting commercial user, all this was done only because the Hon'ble Chief Minister was directly approached. The use of the 1961 allotment date for calculating additional premium is also assailed urging it to be perverse by pointing out that when sale of 9 shops was regularized on 31.03.2001, 1983 DCR was already in force. When 1983 DCR was used, the fall back on 1961 allotment date for calculating additional premium is malafide.
23. Our attention is also invited to the fact that when Respondent No. 13 entered into an arrangement with Respondent No. 16 on 05.10.2005, Respondent No. 13 itself had no authority or title in the matter. It derived that authority on 28.03.2007 when Respondent No. 12 leased out the premises to it. Our attention is also invited to various clauses in said lease deed and also to amended Management Agreement dated 20.07.2007. It is contended that all this shows abuse of power and authority to the detriment of public by various respondents. NIT was not joined as party to any of these documents.
24. On 26.03.2012, Nagpur Municipal Corporation issued a notice for demolition and to discontinue changed user. On 17.07.2013, Nagpur Municipal Corporation pointed out that it had not issued any building completion certificate or building occupancy certificate in respect of building constructed on suit plot. On 19.06.2013, it rejected revised building plan submitted by Respondent No. 9. On 24.06.2013, Respondent No. 9 undertook to remove unauthorized construction and declared that it had already commenced the process. Thus, in the absence of Occupancy Certificate under Section 280 of City of Nagpur Corporation Act, read with Rule 7.4 of Development Control Rules, building could not have been put to use. The construction commencement certificate was never renewed as per Rule 6.7. No previous sanction of NIT was obtained as per Rule 7A of the Land Disposal Rules and 6.22 of Development Control Rules. The unauthorized structure has not been removed till date. On 26.03.2007, Respondent No. 9 withdrew its application dated 22.12.2006 for grant of NOC submitted to NIT and, therefore, on 14.08.2008, NIT sought information about subsequent transactions relating to commercial complex entered into by Respondent No. 9. Petitioner submits that hence, till 14.08.2008, directions contained in the order of Joint Charity Commissioner were not complied with.
25. Reliance is placed upon the judgment of the Hon'ble Apex Court in the case of State of Rajasthan and Ors. vs. Basant Nahata, reported at AIR 2005 SC 3401, whereby the Hon'ble Apex Court quashed Section like S. 22A of the Registration Act to show the approach to be adopted while understanding the Land Disposal Rules and provisions prescribing additional conditions. To substantiate his submissions, Shri Mandlekar, learned counsel, has relied upon number of cases and we find it appropriate to refer thereto little later in the course of this judgment.
26. Shri Mishra, learned counsel, while opening the arguments on behalf of the respondents, submitted that Respondent No. 8 NIT is owner of property but it has not remained a Planning Authority after 27.02.2002. He has invited attention to various prayer clauses to demonstrate that there is no prayer to declare that on 11.08.2005, NIT has fixed premium erroneously. He further submits that Development Control Rules and Development Plan is binding on Respondent No. 8. Clause M7 of DCR permits 15% commercial user on subject plot and accordingly the said development was allowed and it is legal. He further states that user as Hospital is also as per said Rule. The petitioner has not alleged violation of said rule anywhere.
27. The land was allotted way back in the year 1961 as per Land Disposal Rules, 1955. Clause 5 of said Rules permitted concessional rate while Rule 7 permitted lease for 30 years or 90 years. There was a provision prescribing providing additional lease money/ premium. These Rules were quashed in 1982 and thereafter Development Control Rules, 1983 have came into force. These Rules deal with land held by NIT or acquired by it. Renewal in 2006 is as per agreement between the parties. Though 1955 Rules were quashed, lease granted thereunder and right of renewal continued. As such, there could not have been any fresh auction, therefore, 1983 Rules could not have been attracted in this matter. He has taken us through allotment on 29.12.1960 and lease deed, to show how it permits sub-division only with permission of NIT and how it also allows change in nature of user with previous permission. He makes a statement that Respondent No. 9 has till date not sub-divided the land. Hence, no NOC of the NIT was called for and withdrawal of its request therefor by the Sabha has no relevance. Renewal of lease in 1996 is as envisaged in original lease deed after coming into force of 1983 Development Control Rules.
28. Finality given to Development Plan under Section 31(6) of the M.R.T.P. Act, can be legally altered only when earmarked user is changed via Section 37. NIT states that concept of minor modification or modification of major/substantial nature existed till 1994. Thereafter word minor has been deleted from Section 37. The petitioner never objected in the year 2000 when Development Plan for City of Nagpur was under preparation. At that juncture, Rule M7 was in force. The Resolution of NIT dated 30.03.2002 is as per DCR and MRTP Act. 1983 DCR applied to acquire lands or lands vesting in NIT and deal with disposal of those lands. Hence, it cannot be applied to earlier allotments. Therefore, challenge to Resolution dated 30.03.2002 is bad. He seeks dismissal of writ petition with heavy costs.
29. Shri Mishra, learned counsel points out that petition has been filed belatedly and there is no explanation for it. He further submits that Respondent No. 8 NIT was not Planning Authority when modification under Section 37 was done. There is no deletion of any reservation under Section 50 of the M.R.T.P. Act. He explains the exercise of calculation of additional premium and ground rent undertaken on 11.08.2005 and submits that it has been rightly worked out with reference to year 1961 as it remains base year or first year of allotment.
30. As on 21.12.2006, new premium was worked out and user of plot underwent change, new lease became necessary. However, new lease deed does not extend the period of lease as renewed in September 1996. There are no allegations of any malice and no prayer to recover any loss or damages from any individual. The land was allotted to Public Trust i.e. Respondent No. 9 Sabha as per law and changed user is only ancillary in nature. Prayer clause 'A' in writ petition is too vague to be appreciated or for being granted. He concludes with submission that the petition is not filed in public interest at all and be dismissed with exemplary costs.
31. Shri Puranik, learned counsel, on behalf of Respondent No. 7 NMC adopts the arguments of Shri S.K. Mishra, learned counsel. He submits that Section 53 notice dated 26.03.2012 was served upon Respondent No. 10 for excess construction of 487.7 square meters. Thereafter notices dated 19.06.2013 and 27.06.2016 have also been served for removing balance unauthorized structure. Respondent No. 16 has recently filed a Civil Suit wherein status quo has been ordered. Therefore, no action can be taken against excess construction. He further harps on facts to urge that present PIL has been filed belatedly and, therefore, should be dismissed with heavy cost.
32. Shri Patil, learned AGP, relies upon the arguments of Shri Mishra, learned Senior Advocate and Shri Puranik, learned counsel. He submits that notification of change dated 21.02.2004 is issued after completing necessary formalities and as per law. As powers under Section 37(2) of MRTP Act are exercised, challenge to it in present PIL is unsustainable.
33. Shri Dharmadhikari, learned Senior Advocate, representing Respondent No. 13 submits that said respondent is a lessee of super structure. The agreement for development was entered into between Respondent No. 9 and Respondent No. 12 on 21.02.1999 and before that there was public advertisement inviting offers for development from various contractors by Respondent No. 9. Permission under Section 36 of the Bombay Public Trust Act, 1950, was also granted after completing necessary formalities. He heavily relies upon observations of the Hon'ble Apex Court in its order dated 03.08.2004 to urge that construction was complete in 2004 itself. According to him, building constructed is a six storied huge building and it houses a hospital. The petitioner who resides in the vicinity could have very well seen the building coming up and the hospital running therein since year 2007. Thus, in 2004 itself, the petitioner could have approached the Court.
34. The change of user on 21.02.2004 is also preceded by proper public notice inviting objections issued by Respondent No. 7. This notice was published on 06.02.2003 and 20.02.2003. He further submits that Respondent No. 16 has invested amount in excess of Rs.25 crores. The premium was fixed on 11.08.2005 and there was Management Agreement between Respondent No. 13 and Respondent No. 16 on 05.10.2005. As such, PIL filed on 06.05.2013 is more than 14 years after the agreement for development or six years after Respondent No. 16 commenced activities of its hospital. The learned Senior Advocate reiterates that since 2007, full fledged hospital is being run in the building.
35. Inviting attention to PIL, it is argued that it is confined to Section 53 of the M.R.T.P. Act only. The petitioner claimed that he learnt about illegalities on 26.03.2012 and those illegalities are continuous in nature. These assertions and explanation are apparently false and a petitioner claiming to act in public interest, with due vigilance and diligence could have taken steps immediately when he saw a huge building being constructed. There is no explanation for delay and the language employed is more apologetic than explanation for delay. He seeks to rely upon the judgments in the case of Delhi Development Authority vs. Rajendra Singh and Ors., reported at (2009) 8 SCC 582, paragraphs 49 to 54; R and M Trust vs. Koramangala Residents Vigilance Group and Ors., reported at (2005) 3 SCC 91, paragraphs 34 and 35; State of M.P. and Ors. vs. Nandlal Jaiswal and Ors., reported at (1986) 4 SCC 566, paragraph 24 and the judgment in Public Interest Litigation No. 23 of 2013, particularly paragraph No. 17, to demonstrate that delay in present matter is fatal.
36. He further points out that though the petitioner had knowledge of similar treatment extended to Vidarbha Sahitya Sangh or Tilak Patrakar Bhawan, he has not made grievance about these buildings, the building of Respondent No. 9, therefore, has been singled out. Thus Public Interest Litigation is malafidely filed.
37. To show that development is in accordance with law and proper and there is no benefit to any individual, he strongly relies upon the proceedings under Section 36 of the Bombay Public Trust Act, and orders passed thereunder in the case of Sailesh Developers and Anr. vs. Joint Charity Commissioner, Maharashtra and Ors., reported at 2007 (3) Mh.L.J. 717. The status of Respondent No. 9 or its position and work done by it for all these years is not in dispute. In this situation, when the Hon'ble Apex Court has accepted the need and development is found in the interest of Respondent No. 9, Public Interest Litigation must fail. The learned Senior Advocate submits that the deal with the developers is found not unfair by the Hon'ble Apex Court.
38. The learned Counsel has invited our attention to the arrangement arrived at between the parties in order to demonstrate how it benefits Respondent No. 9 Sabha. The property continues to be property of Respondent No. 9 and building structure is raised through deposits from tenants. Agreement is fair and even after receipt of additional FSI, same distribution ratio has been followed. Developer Respondent No. 12 gets about 6762 sq. mtrs of constructed area while Sabha gets 2254 sq. mtrs. The Developer builder got approximately amount of Rs.6,50,00,000/- from this project and roughly the rate works out to Rs. 1,000/- per sq. ft. The rate is, therefore, also just and Respondent No. 9 Sabha, as per law undertook and completed the exercise to secure financial independence.
39. Judgment in the case of Mihir Yadunath Thatte vs. State of Maharashtra and Ors., reported at 2007 Supp. BCR 392, paragraphs 23 and 24, is pressed into service to urge that power under Section 37 of the M.R.T.P. Act is legislative in nature and, therefore, it can be resorted to as and when deemed necessary. There is no question of review involved.
40. On 10.04.2001, letters were sent to the then Hon'ble Chief Minister for change of user and intervention of his office was sought only to invoke legislative powers under Section 37. The State Government called for report on 24.05.2001. The Director of Town Planning opposed the change on 31.07.2001. Even Town Planning Department opposed it on 29.08.2002 and NIT also did not agree on 30.09.2002. On 10.10.2002, Nagpur Municipal Corporation also opposed, pointing out that North Ambazari Road was supposed to be no shopping frontage street and there was a College as also a Deaf and Dumb School in the vicinity. On 28.04.2003, the State Government rejected the request of Respondent No. 9. As such, there is no question of any influence by any politician in the matter. In the meanwhile, on 26.12.2002, General Body of Nagpur Municipal Corporation resolved in favour of change and hence the process as envisaged under Section 37 started. Public advertisement inviting objections were published in Marathi Newspaper Lokmat and English daily The Hitavada on 06.02.2003. Notification was published on 20.02.2003 and only one Shantaram Patil objected and he was also heard on 09.05.2003. After fully complying with the procedure, on 16.07.2003 Nagpur Municipal Corporation forwarded the proposal to the State. The Director of Town Planning opposed the change on 25.08.2003 while on 24.09.2003, after consulting Nagpur Improvement Trust, the proposal was recommended. Respondent No. 9 thereafter sent another letter to the Hon'ble Chief Minister through its local President at Nagpur on 03.10.2003 and its National President wrote to the Hon'ble Chief Minister on 08.10.2003. On 30.10.2003, the Chief Minister sent suitable reply to the National President. On 21.10.2003, Government had called for say of NMC and NIT. NMC submitted its reply on 01.11.2003 while NIT gave its no objection on 07.10.2003. On 10.10.2003, the Deputy Director of Town Planning also expressed his opinion. Thereafter, State Government permitted change of user. Proper procedure is followed and after looking into the entire material, the decision has been reached. The change is not for individual benefit but for enabling an institution with National repute to survive more efficiently. It permits effective utilization of property and in the absence of change of user, Respondent No. 9 could not have functioned properly. There is no misuse or abuse of power. Letters sent by the Hon'ble Chief Minister do not, in this situation, show any influence even of that office.
41. Shri Dharmadhikari argues that section 22A of the M.R.T.P. Act, as in force then, applied to only Draft Development Plans and was/ is not relevant under Section 37 of the M.R.T.P. Act. Section 37 does not envisage only minor modification and test therein is whether character of the Development Plan undergoes change. There is no deletion as contemplated under Section 50 of the M.R.T.P. Act, in present matter and ingredients thereof are not satisfied. Appropriate Authority there would have been NIT as defined in Section 2(3) of the M.R.T.P. Act. To show that there is no change in character of plan because of permission of commercial development granted only to one plot, he seeks to rely upon the judgment in the case of Sangharsh Kruti Samiti, Nagpur vs. State of Maharashtra and Ors., reported at 2007 (2) Mh.L.J. 681, paragraphs 21 and 22. The judgment in the case of Mihir Yadunath Thatte vs. State of Maharashtra and Ors., (supra) also reported at (2006) SCC On Line 1152, paragraphs 35, 36 and 38 is also relied upon for this purpose.
42. He further submits that an exercise of fixation of premium performed on 11.08.2005 is in accordance with law and the year 1961, has rightly been treated as relevant year. The change of user does not put an end to lease but lessee only gets additional FSI subject to its fulfilling additional obligations. The additional FSI in relation to land already leased out to it practically results in grant of more TDR and additional FSI. Calculation, therefore, is rightly restricted to this additional FSI. For that additional FSI, rate of Rs.48 to 50 per square feet has been used in the year 2005. It cannot be said to be low or unfair. Plot has not been sub-divided and there is no loss of revenue to any public body. Inviting attention to terms and conditions of lease, he submits that there is no sub-division, nature of demise does not undergo any change. As such, there never was any bar on sub-lease or transfer. The previous permission is required only in case of sub-division of the plot. NIT had given No Objection Certificate for executing sale deeds on 30.04.2002. Lease deed has been executed in favour of Respondent No. 9 on 28.03.2007 and it is only about super structure. NMC has on 26.10.2007 also given occupancy certificate. He contends that thus, there is no merit in the Public Interest Litigation and it deserves to be dismissed.
43. Shri M.G. Bhangde, learned Senior Advocate on behalf of Respondent No. 9 Sabha has, in addition to arguments advanced by other respondents, submitted that third lease dated 21.12.2006 was and is uncalled for. The period of second renewed lease deed was/is till 31.03.2021 and hence before expiry thereof, third lease as executed is superfluous. According to him, at the most, execution of a corrigenda or correction deed to second renewed lease could have been insisted upon.
44. The modification in the Development Plan on 21.02.2004 is not a review and Planning Authority (NMC) passed the resolution as envisaged under Section 37 of the M.R.T.P. Act for the first time in December 2002. This resolution dated 26.12.2002 was not before the State Government when it rejected the request of NIT on 28.03.2003. On that date, NIT was not even the Planning Authority. The resolution of NMC dated 26.12.2002 is about several plots or lands and this resolution or consequential procedure was never questioned by the petitioner. He, therefore, does not have any locus to file this PIL. Support is being taken from the judgment in the case of Delhi Administration vs. Gurdip Singh Uban and Ors., reported at (1999) 7 SCC 44, paragraph 8.
45. Unexplained delay and laches are also strongly pressed into service. The judgment in the case of Printers (Mysore) Ltd. vs. M.A. Rasheed and Ors., reported at (2004) 4 SCC 460 (paragraphs 1, 3 and 25) are relied upon for this purpose. To explain what is reasonable period in exercise of this jurisdiction, paragraphs 14 and 15 from the judgment of the Hon'ble Apex Court in the case of Leelawanti and Ors. vs. State of Maharashtra and Ors., reported at (2012) 1 SCC 66 are relied upon.
46. Shri Patil, learned Assistant Government Pleader, on behalf of Respondent Nos. 1, 3 and 4, with the leave of Court, adopts the above arguments. He states that when State Government initially rejected permission to change user, exercise under Section 37 of the M.R.T.P. Act was not even initiated.
47. Shri C.S. Dharmadhikari, learned counsel for respondent No. 12 Developer adopts the arguments of all Advocates mentioned supra.
48. Shri S.V. Manohar, learned Senior Advocate on behalf of Respondent No. 16, points out that Hospital of Respondent No. 16 started functioning in the multistory structure on said plot in 2007 itself openly and this was never questioned by anybody. Respondent No. 9 Sabha pointed out such change of user permitted in relation to other sites on North Ambazari Road itself. He contends that in this background only prayer which can be looked into is implementation of notice issued by NMC on 26.03.2012 and for declaration that the Management Agreement dated 05.10.2005 is illegal. The affidavit of NMC is relied upon by him to show that most of the alleged unauthorized construction is already removed and only small part of about 486.770 sq. mtrs. is now remaining. In view of receipt of notice from NMC on 27.06.2016, Respondent No. 6 has filed Regular Civil Suit No. 762 of 2016 as advised. The documents of present PIL are enclosed with it and Civil Court has granted order of status quo on 22.07.2016. Thus, the disputed questions pertaining to alleged unauthorized structure is now pending before competent Civil Court. As instructed, he also makes a statement that as FSI is in balance, the request has been made to regularize this construction. Respondent No. 16 has spent almost an amount of Rs.29 crores on its hospital on subject plot. He, therefore, states that in this situation, any intervention in PIL would defeat public interest. The judgment in the case of Bombay Environmental Action Group and Anr. vs. State of Maharashtra and Ors., reported at 2001 (4) Mh.L.J. 260, paragraph 39, is relied upon by him to point out laches and its effect in PIL. The judgment in the case of R and M Trust vs. Koramangala Residents Vigilance Group and Ors., reported at (2005) 3 SCC 93, paragraph 24 is relied upon by him.
49. In reply arguments, Shri Mandlekar, learned counsel, states that PIL No. 8 of 2013 was filed earlier on 03.12.2012. Appreciating the need of extensive amendment therein, this Court on 17.04.2013 granted liberty to file fresh PIL. The petitioner had filed applications under Right to Information Act (RTI) on 05.05.2011 and up to 31.08.2012 he received the knowledge that Building Plan was rejected on 01.11.2012 and that NMC had issued demolition notice on 26.03.2012. The petitioner sent representations on 17.04.2011 and 14.07.2011. He also sent a representation to the Hon'ble Chief Minister on 23.12.2011. PIL has been filed within one year thereof.
50. On 17.07.2013, the petitioner got knowledge of extent of illegal construction and removal of part of it is admitted by the respondents. The absence of completion certificate is also not in dispute. All these facts and even knowledge of loss caused to public revenue surfaced only in response to queries under RTI. He submits that challenge is to change of user under Section 37 of the M.R.T.P. Act and also to charging of very meager premium for additional FSI. These challenges are interlinked.
51. He relies upon paragraph 13 in the case of M/s. Dehri Rohtas Light Railway Company Limited vs. District Board, Bhojpur and Ors., reported at (1992) 2 SCC 598, to urge that test in such matter is whether illegality should be allowed to be suffered. Paragraphs 17, 18 and 20 in Royal Orchid Hotels Limited and Anr. vs. G. Jayaram Reddy and Ors., reported at (2011) 10 SCC 608,, are also relied upon for this purpose.
52. To point out collusion between Nagpur Municipal Corporation and Respondent No. 16, he states that notice dated 27.06.2016 has been issued almost after three years and only to help Respondent No. 16. Its copy has not been produced before this Court. He further submits that breaches of lease deed are already pointed out and the same were not cured on 20.03.2007 when lease deed was executed. No sanction from the Chairman of Nagpur Improvement Trust was obtained as contemplated by Rule 24(a)(b) of DCR Rules. He invites attention to Land Disposal Rules, 1983, to urge that the same do not apply.
53. Shri Mandlekar, learned counsel submits that calculations performed while working out additional premium are incorrect and stand that Land Disposal Rules of 1983 do not apply, runs counter to the stand of NIT in other PIL or Court Cases. Our attention is invited to an order in earlier writ petition (page 483 of record) to show that there Rule 7(3) of 1983 Rules, has been applied. He further submits that Respondent No. 9 Sabha has surrendered old lease in lieu of new lease on 16.12.2006. As new lease has come into force, it is disposal of land and, therefore, public auction or then premium determined as per market rate should have been the guiding factor.
54. He further states that if 1983 Rules cannot apply, Appendix M7 with 2000 DCR also cannot apply. Again attention is invited to the stand of NIT in public interest litigation filed by Dr. Bhalchandra Subhedar and a judgment in the matter of Shriram Dharamshala. He contends that thus, in this matter, due to obvious pressure, NIT is deviating from its earlier stand. As this Court has already held in above two Public Interest Litigations that Appendix M7 did not apply, respondents cannot expect a contrary view in present matter. He further states that after 1972, neither NIT nor NMC exercised their rights or took action for violations and tolerated unlawful activities, though land was not allotted for commercial purposes.
55. Inviting attention to the scheme of Section 37 of the M.R.T.P. Act, he submits that there is no direction by the State Government either to NIT or to NMC to effect any modification. He attempts to distinguish the judgments relied upon by Shri Dharmadhikari, learned counsel. He further submits that apparent non-application of mind in resolution of NMC dated 26.12.2013, has not been commented upon by any of the respondents. He has relied upon the judgment of Division Bench of this Court at Bombay in Writ Petition No. 369 of 2011 to submit that in such matters of change of user, positive recommendation of the Director of Town Planning, is must and in present case, the Director of Town Planning had rejected the proposal on more than one occasion. Inviting attention to the communication dated 21.10.2003 and previous similar letter dated 13.08.2003 sent by the State and a reply thereto dated 07.10.2003, he contends that though the State called information regarding any of the lacunae, that information was not supplied. Relying upon the judgment in the case of Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack De Sequeria, in Civil Appeal No. 2968 of 2012, decided on 21.03.2012, he urges that truth has to prevail. He adds that Respondent No. 9 is not at all propagating Hindi language or any Charitable public purpose and land has been used only for commercial exploitation. Such commercial potential could have been used more effectively by NIT or by State. He, therefore, states that in this matter, a direction to hold inquiry through Central Bureau of Investigation (CBI) is must. He further adds that inquiry must be against all the respondents i.e. including those to whom this Court has not issued notices.
56. We find that the first event of which entire public could have gained knowledge is the proceedings under Section 36 of the Bombay Public Trust Act, instituted by respondent No. 9. This permission was granted by the Joint Charity Commissioner on 11.08.1999. It was objected to by one Shantaram Ramchandra Patil only. This person also filed Writ Petition No.2661 of 2001 at the principal seat of this Court. His writ petition was dismissed by the learned Single Judge on 18.10.2001. The High Court in paragraph No.3 found that the proceedings under Section 36 were after giving wide publicity in Newspapers in English and Marathi language at Nagpur and also at Pune. The subject property is situated at Nagpur, while respondent No. 9 has its head office at Pune. Shantaram Ramchandra Patil appears to be a resident of Pune. Through Newspapers advertisement tenders were invited. Larsen and Company Private Limited; Salpekar Developers Private Ltd., and Prajakta Constructions, Nagpur submitted their offers. The offer of Prajakta Constructions was found best. This Court has noted that respondent No. 9 Sabha was getting a structure worth Rs. 1.8 Crores and would also earn annually rent of Rs. 3.6 lakh. Thus, respondent No. 9 Sabha was getting an asset without spending anything. This Court has also taken note of the fact that the developer Prajakta Developers could have entered into subject lease only after permission of the Nagpur Improvement Trust.
57. This adjudication by the learned Single Judge forms subject matter of Civil Appeal No. 4930 of 2004, which was filed by Shantaram Ramchandra Patil before the Hon'ble Apex Court. The Hon'ble Apex Court has noted that much could have been said about the manner in which the Joint Charity Commissioner disposed of the application under Section 36 of the Bombay Public Trust Act, just before his retirement, but then it was not sufficient to set at naught sanction accorded by him, particularly when construction of building was almost complete. The Hon'ble Apex Court observed that it could not be demonstrated that respondent No. 9 Sabha, was not being benefited or the deal was patently unfair. The developer before the Hon'ble Apex Court stated that the rent of rupee 1/- per square feet agreed to be paid to Sabha would be enhanced to Rs.2/- per square feet per month. Thus, income of respondent No. 9 was augmented by about 3.60 lakh per year more, hence, only to that extent the Hon'ble Apex Court on 03.08.2004 modified the order of the Joint Charity Commissioner and disposed of the appeal. This order has attained finality.
58. Scrutiny of the application for change of user or its consideration by the State Government was also after due public advertisement. This was the second opportunity to any diligent citizen to learn about everything. For the purpose of present discussion one can take note of the fact that respondent No. 7 Nagpur Municipal Corporation became Planning Authority on 27.02.2002. Its General Body passed a resolution on 26.12.2002 for converting the user. This resolution No. 84 is cleared in the Special meeting and it is expressly under Section 37 of the Maharashtra Regional and Town Planning Act. The Commissioner of the Nagpur Municipal Corporation was authorized to submit necessary proposal and in it lands at Gandhibagh, Dharampeth, land of I.G.M.C. as also subject land were put up to consider proposed change of user. Though subject land i.e. city survey No. 1643 on North Ambazari Road is mentioned as belonging to respondent No. 9, that by itself is not sufficient to vitiate the unanimous resolution of the Nagpur Municipal Corporation. The user change is permitted on 21.02.2004 by the State Government after complying with the procedure under Section 37 of the M.R.T.P. Act. In this permission and notification about it, fact that the subject land is given to respondent No. 9 Sabha on lease by the Nagpur Improvement Trust is expressly mentioned. It also records that necessary inquiries were made and the Director of Town Planning was consulted. It is not in dispute before us that the process is preceded by a public advertisement inviting objections and only above mentioned Shantaram Patil objected to the proposed conversion. He also participated in the hearing. There was no other objection about this change. Petitioner has not said anything about this advertisement.
59. In the case of Mihir Yadunath Thatte vs. State of Maharashtra and Ors., (supra), Division Bench of this Court has looked into the scope and nature of powers exercised under Section 37 of the M.R.T.P. Act. The change of user sought for was for inclusion of part of Survey No. 86 in residential zone. The land was located at Parvati in Pune and adjacent Survey No. 87 was already converted into residential zone. Thus, modification was to exclude that part of Survey No. 86 from H.T.H.S. Zone. The Division Bench took note of the judgment of the Hon'ble Apex Court in the case of Pune Municipal Corporation vs. Promoters and Builders Association, reported at (2004) 10 SCC 796, and noted that making of D.C.R. or amendments thereof are legislative functions and hence Section 37 needed to be viewed as repository of legislative power. The legislature has not intended to provide for a public hearing before according sanction. Delegated legislation cannot be questioned for violating the principles of natural justice except when the statute itself provided for compliance therewith. The provision worded like such inquiry as it may consider necessary , by a subordinate legislating body is generally an enabling provision to facilitate subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody. In paragraph 24, Division Bench finds that legislative nature of that power and all functions of State Government under Section 37 seemed irrefutable. Such change, however, cannot lead to change in the character of the plan. On the basis of this exposition by the Supreme Court, the Division Bench concludes that delegated legislative power cannot be questioned for violating the principles of natural justice and unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere in exercise of that power.
60. The Division Bench in this matter has in paragraph 35 of the judgment considered the designation of area as Hill Top Hill Slope Zone (H.T.H.S. Zone) and then conversion of part of Survey No. 86 i.e. area ad measuring 1.75 Hectares from H.T.H.S. Zone to residential zone. It finds that long before impugned change, 0.98 Hectares of land out of another Survey Number of Parvati situated adjacent to Survey No. 86 was converted from H.T.H.S. Zone to residential zone in 1992. Smaller area ad measuring 1.28 Hectares out of different survey numbers from H.T.H.S. Zone was also converted in residential zone, public and semi public zone during this period. Total converted area worked out to hardly 0.03% out of total area of 1273 Hectares. Though H.T.H.S. Zone by itself is found to be distinguishing feature of Development Plan of City of Pune, this minuscule change is found not to have changed the character of the entire development plan. This change did not emasculate and deface the basic characteristics of that plan. It has, therefore, concluded that there was no change of character of Development plan of City of Pune.
61. In paragraph 38, it has then looked into the case of malafides as pleaded by the petitioner. It has noted that there was rejection first and thereafter on second occasion, State Government directed Pune Municipal Corporation to complete the procedure for including that part of Survey No. 86 into residential zone under Section 37(1) of the M.R.T.P. Act. Pune Municipal Corporation complied with the procedure and on 26.04.2001 requested the State Government to issue necessary sanction for such change. Thereafter, State Government on 04.04.2002 issued necessary orders and notified conversion subject to the condition that H.T.H.S. portion of land should not be cut. This notification was published in official gazette on 25.04.2002. Ultimately, this Court has found that there was nothing wrong in the procedure followed and upheld the change. This precedent therefore shows that a change of user can be brought about under S. 37 if it does not affect the character of the development plan. A modification affecting very small area of land out of total provision for a particular purpose is found not affecting the said character.
62. The contentions about breach of lease conditions or raising of unauthorized construction or not obtaining occupancy certificate or completion certificate or not securing NOC from NIT for subleasing and violation of S. 36 permission thereby, may all pale into insignificance, if everything else is found in order and no fraud on public revenue is detected. The most serious concern in the matter is about change of earmarked user from pubic utility to commercial one. To succeed in challenge under S. 37 MRTP, at least a change in character of the development plan ought to have been demonstrated with necessary facts and figures. None of the parties bothered to touch this aspect. We may here note what is meant by this concept of character of a development plan. The Division Bench of this Court considers the phrase character of the development plan in S. 37 in D.B. Realty Limited and Anr. Vs. State of Maharashtra through its Urban Development Department and Ors., reported at 2015(6) LJS 72=2015(3) Bom. C.R. 640. It finds that that Section 22A of the MRTP Act defines modification of a substantial nature for the purposes of Section 31 of the MRTP Act. This special definition for the purposes of Section 31 of the MRTP Act cannot be extended to Section 37(1AA) of the Act. Moreover, the words defined in Section 22A of MRTP Act are 'modification of a substantial nature' while Section 37(1AA) of MRTP Act uses the words 'change the character of such Development Plan'. The words 'change the character of the Development Plan' in Section 37(1AA) of the MRTP Act mean much more than mere modification. It would be a new and/or substituted Development Plan. It relies upon the Apex Court judgment in Bombay Dyeing v/s. Bombay Environmental Action Group, reported at 2006 (4) LJ SOFT (SC) 21 = 2006 (3) SCC 434 at paragraph 249 thereof, observed that the words 'change in the character of plan' would necessarily mean alteration of the entire plan in its totality." Thus, this Division Bench finds that the test for the purposes of Section 37 of the MRTP Act is whether the change resulted in the original Development Plan losing its identity. This appears to be the correct approach even in present In the case before it, the land which being used for housing the US under the Development Plan continued to be used for the same purpose for which it was originally approved in the Development Plan. Thus there was no replacing/substitution of the uses of the land as dedicated in the Development Plan. On aspect of procedure, this Division Bench mentions that though Section 37(1AA) of the MRTP Act was not followed, but Section 37(1) of the MRTP Act was followed, requiring the proposal to be initiated by the Planning Authority. The requirement of inviting objections and suggestions in both the modes was mandatory. In view of the above, no prejudice is seen caused to the Petitioner D.B. Realty Limited on account of not following that procedure prescribed under Section 37 of the MRTP Act but adopting Section 37(1AA) of the MRTP Act to issue the notification. This appears to be the correct approach even in present PIL before us.
63. Perusal of the Hon'ble Apex Court judgment in Bombay Dyeing v/s. Bombay Environmental Action Group reveals that there in para 243, the total area affected by the change on an average is noted to be approximately 3.07% of the total area of the wards and the mill lands occupy only 0.6% of the entire land area of Bombay. In this backdrop, in paragraph 245, Supreme Court observes -
245. A development plan is an organic document in the sense that periodic changes are contemplated thereby. A development plan is required to be changed every 20 years. Such changes are to be brought about keeping in view the past experience of the planning authority and the intended future development of the town. While, therefore, interpreting the words "change in the character of plan" the question would be as to whether the change in the character is referable to alteration of the entire plan. The change in the character would, therefore, necessarily mean the change in the basic feature thereof and the entire plan as a whole wherefor the same must be read in totality. In this case, the changes made do not brought about any significant changes so as to come to a conclusion that its basic features are altered.
The plots adjacent to subject plot are already holding reputed old and big private educational institute. There is a deaf and dumb school on one side while Plot on other side is occupied by a reputed Junior and Senior College for Girls since last few decades. Petitioner has not brought on record any adverse social or environmental impact due to this conversion and Hospital of respondent No. 16 which is functioning since last 8 years. If north Ambazari Road was to be a no shopping frontage street and, therefore, a special feature in the development of the city, activities existing on said road and its nature ought to have been placed on record to gather the character of the development plan and impact of respondent 16 Hospital on that character. Definitely, the burden is to be discharged by the petitioner. It is not his case also that this hospital has any shops or such shops have opening on the north Ambazari road. State Government has in discharge of its legislative obligation found that character of the development plan is not affected. In absence of necessary data, we can not even embark upon the exercise to find out any such character change.
64. In Girish Vyas and Anr. vs. State of Maharashtra and Ors., reported at AIR 2012 SCW 3088 =2012(6) LJ SOFT (SC) 300, the Hon'ble Apex Court has considered similar challenge. Petitioner has placed strong reliance upon it. It is a Public interest petition alleging assailing illegal shifting of reservation for primary school and granting permission to develop that plot for private residences Grievance was that Rules and procedures were circumvented to benefit a close relative of the Chief Minister. There is a specific finding that independent of one's right either under the D.P. Plan or the T.P. Scheme, one ought to have a permission for development granted by the planning authority traceable to an appropriate provision of law and in case before it there was none. While considering the aspect of deletion of reservation, Hon'ble Apex Court holds that under sub-section (1) of Section 50 of the MRTP Act, the appropriate authority defined u/s 2(3) has to be satisfied that the land is not required for the public purpose for which it is reserved, "Appropriate authority" is a public authority on whose behalf the land is designed for a public purpose in any plan which it is authorised to acquire. In that case, the acquiring body was Pune Municipal Corporation (PMC), it is held that its general body needed to be satisfied that the land was not required for the earmarked public purpose. Officers of the Planning Authority as well as of the concerned Government department were not in favour of deleting the reservation but the Municipal Commissioner gave a favourable report on the direction of the Minister of State. It is declared that Commissioner's opinion could not have been treated as the opinion of PMC. Hon'ble Apex Court has also noted wrong roll played by said Municipal Commissioner as he acted under political pressure. Here there are no allegations against the municipal commissioner of NMC or the Chairman of NIT. On the contrary, there is a unanimous resolution of general body of NMC recommending the user change. In so far direction of criminal investigation against Municipal Commissioner and Minister of State issued by the High Court is concerned, Hon'ble Apex Court noted that they acted only to oblige a senior Minister i.e. the then Chief Minister without any personal motive in matter. Hence both were given the benefit of doubt. Hon'ble Apex Court points out that the directions under S. 154 have to be normally general in character and not for the benefit of any particular party. Before us, no one has relied upon S. 154 of the MRTP Act.
65. In case of Girish Vyas (supra), thr Hon'ble Court also observes that the Government and Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. Deletion or modification should be resorted to only in the rarest of rare case. Greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. It directs that any unauthorized construction particularly on the lands meant for public amenities must be removed forthwith. Ultimately, since the direction was given by the State Government, Hon'ble Court notes that it was necessary for it to act under Section 37 (1AA), and to publish a notice in the Official Gazette to invite objections and suggestions from the public at large, and also from the persons affected by the proposed modification. Thereafter the State Government was required to send the proposal to PMC for its say and then it had to consult the Director of Town Planning. The modification under Section 22A required following of the procedure under Section 29 of the MRTP Act. Apart from a notice in the official gazette, a notice should have been published in the local newspapers for the information at the public at large, so that they could make their suggestions or file objections thereto if they so deem it fit. Supreme Court invites attention to Section 39 which specifically directs that the planning authority shall vary the T.P. scheme to the extent necessary by the proposal made in the final Development Plan. Guidelines have been laid down to avoid such kind of gross deletions in the future, and to see that the provisions of the MRTP Act are strictly implemented in tune with the spirit.
66. It is important to note that there was a specific plea in paragraph 10 of Writ Petition No.4433 of 1998 to the effect that "the fundamental and legal right of the citizens of Pune of submitting objections and suggestions to any modification in the Final Development Plan u/s 37 of the act has been infringed", and that was solely on account of the developer being a close relation of the then Chief Minister who was also the Minister for Urban Development which controls the appointments of a Municipal Commissioner to a Corporation established under the B.P.M.C Act 1949. Hon'ble Supreme Court also finds that the procedure under Section 29 of the Act to publish a notice in local newspapers also, inviting objections and suggestions within sixty days should have been followed and not procedure under S. 37 dealing with the minor modification.
67. This judgment in case of Girish Vyas and Anr. Vs. State of Maharashtra and Ors., (supra), therefore, shows that due to political influence, mandatory statutory provisions were given a go bye and rights of citizens were defeated and powers were abused. As such, there was no question of any delay or latches in said case. In case before us, the procedure stipulated in S. 37 has been adhered to and all parties likely to be affected or aggrieved, were also given the opportunity. If there was any procedural impropriety, the same could have been pointed out by the petitioner and perhaps corrected then and there. There is no fraud played on statute and any diligent citizen could have protested and approached the court of law to stop the conversion or construction. This judgment, therefore, has no application in present facts.
68. The fact that owner NIT never sought change of user and did not pass any resolution to support it therefore does not advance the case of the petitioner. Act of Nagpur Municipal Corporation in proceeding on 26.12.2002 to consider and resolve on conversion under the impression that suit plot belonged to Respondent No. 9 Sabha, also does not have any material impact on exercise of legislative powers. Even its overlooking the earlier two refusals for such conversion are not very relevant for that purpose. We have already found above that mention that subject land i.e. city survey No. 1643 on North Ambazari Road belonged to respondent No. 9 Sabha by itself is not sufficient to vitiate the unanimous resolution of the Nagpur Municipal Corporation. The submission that deletion under S. 50 of MRTP is not at the instance of the appropriate authority also becomes redundant as that appropriate authority (respondent no. 8 NIT) never opposed the change of user after 21.02.2004 and the deletion is consequential to the legislative exercise u/S. 37 of MRTP Act. Moreover, the subject land was not reserved or earmarked for NIT and hence, it can not become appropriate authority for S. 50 and that provision has no application here.
69. This brings us to the consideration of challenges in PIL. The preliminary objection of the respondents on account of delay and latches on the part of petitioner calls for consideration here. We find that alleged breaches of lease conditions by the respondent 9 Sabha prior to renewal of lease deed in 1996 (for period from 1991 to 2021) are not material at this point of time as the same are not continuing now. Hence, violations after 1996 can be looked into, if the challenge thereto is not barred. The illegalities recent in origin or of such a nature that they would not have come to light without some extra effort, may call for separate consideration. It will be apt to briefly narrate the alleged illegalities or the irregularities here to facilitate the application of mind.
A. Change of User on 21.02.2004 and use of S. 37(2) of the. Maharashtra Regional and Town Planning Act, 1965. P.U. Plot converted to commercial user and Hospital is running on it. There was no such proposal by NIT the then planning authority which happened to be also the owner of subject plot. It was also opposed by NIT on 30.09.2000. It was earlier opposed by the Director of town planning and ADTP on 31.07.2001. Town Planning department also recommended rejection on 29.8.2002. NMC had also opposed it on 10.10.2002.
Resolution dated 26.12.2002 of the later planning authority NMC is mechanical and without application of mind qua the ingredients of S. 37 i.e. character of the development plan . NMC also did not verify the facts and presumed Sabha to be the owner of subject land. This course was followed and all defects crept in and tolerated due to political influence. Efforts were made to defeat MRTP Act as development agreement dated 21.02 1999 with builder entered already existed. On 19.12.1994 said Respondent 12 developer had also given estimate for the development. Petitioner states that State Government had rejected change on 28.04.2003 and by the impugned action this was reviewed to yes on 21.02.2004. State Government does not get power to review under Section 37 of MRTP Act. In any case, the State ought to have extended an opportunity and a proper notice therefor to land owner NIT. We have already dealt with part of these challenges above and negated it. We gave also concluded that there is no error in decision making process which is legislative in nature.
Question to be pondered over is whether this challenge is time barred.
B. Petitioner also asserts need of fresh advertisement and auction or allotment after the impugned change of user. The potential of the property itself increases due to change of user and the nature or type of the construction allowed on it. Due to these drastic modifications, earlier lease must lapses or deemed to be lapsed. As the new DCR as also Art. 14 are attracted, these provisions warranted a new advertizement and public auction.
C. In any case after new lease in 2006, new premium and ground rent is not worked out as per Development Control Rules (DCR) of 1983 but as per 1955 Rules which were quashed in 1982 and hence not available. In 2005-06, it was not legal to resort to quashed Rules and 1983 DCR with the market rate/ ready reckoner ought to have been adopted. NIT itself has urged that DCR is binding on even NMC.
D. Petitioner also points out violation of permission granted under S. 36 of the Maharashtra Public Trust Act. Joint Charity Commissioner has on 11.08.1999 permitted sublease till 31.03.2001 only. NIT has on 17.8.2000 rejected sublease and hence all subleases or transactions thereafter are bad in law. No objection under Section 269U of the Income Tax Act for transfer of FSI only is also dated 30.06.1999. As there is no permission of the NIT to any sublease, construction of two wings A and B and sublease only of superstructure in favour of nominee of the developers also amounts to subdivision of plot. This has resulted in violation of the Lease by respondent 9 Sabha.
E. Respondent No. 9 did not develop within time. It also put illegal and unauthorized construction. Thus it breached the terms of lease in its favour and that lease stood terminated. Still no action was taken either by the NIT or Nagpur Municipal Corporation (NMC). One notice by the NMC after filing of this writ petition and one in June,2016 are only to facilitate filing of the RCS by respondent 16 M/s Wockhardt Hospitals.
It is not in dispute that this is a PIL and a non-adversarial litigation. Nobody has averred that Petitioner has any oblique motive or he approached this Court with any ulterior purpose. We find that interest of public also obliges us to appreciate following points as they also arise here-F. Whether NIT has knowledge of the terms and conditions of the agreements or documents executed or registered in favour of the occupants of the commercial shops or management agreement dated 05.10.2005 or amended agreement dated 20.07.2007 through which Respondent No. 16 M/s. Wockhardt Hospitals Pvt. Ltd. ? What is the effect of withdrawal of its application dated 22.12.2006 submitted to NIT for grant of NOC by the respondent No. 9 Sabha on 26.03.2007? On 14.08.2008, NIT sought information about subsequent transactions relating to commercial complex entered into by Respondent No. 9, but then there is no further action.
G. Whether any private concern or individuals earned huge profits at the cost of public?
H. Whether provisions of Rule 25 of Land Disposal Rules prevail over subleases or agreements or arrangements between the Respondent No. 9 Sabha and actual occupants ?
I. Whether said Rule 25 can be applied even now?
J. How the additional income becoming available is being used or used by the respondent No. 9 Sabha? Has it increased sphere of its or frequency of its activities?
K. Whether the Budget and accounts of Respondent No. 9 support its public charitable purpose ?
70. Whether any of these challenges can be treated as continuous cause in the interest of general public is also a moot question. The relevance of concept of delay, its impact on public cause and what should be the reasonable period to raise above challenges can be comprehended with the assistance of the following judgments.
In DDA v. Rajendra Singh, (supra), Hon'ble Apex Court lays down that
49. Now, let us consider whether the writ petitions filed in the High Court in the year 2007 are justifiable and ought to have been dismissed on the ground of delay/latches. Though an objection was raised by all the official respondents before the High Court about the inordinate delay in filing the writ petitions by the petitioners, the said aspect was not either adverted to or considered by the Division Bench.
50. We have already referred to the fact that the site in question was changed to public and semipublic way back on 21-9-1999. Before reclassifying the site, DDA and the authorities concerned issued public notice calling for objections/suggestions. The particulars furnished by the official bodies clearly show that after getting the suggestions from the public change of land use for the site falling in Zone O was changed on 21-9-1999 from agricultural and water body to public and semipublic purpose. Apart from this, the decision of hosting the Commonwealth Games at Commonwealth Games Village site was taken in 2003. The Department also issued a global tender process for public-private partnership ( PPP ) participation in the residential portion of the Commonwealth Games Project which was floated in December 2006 and was completed in June 2007.
51. Apart from these materials, it was also highlighted before the High Court as well as before this Court to the effect that environmental clearance was granted on 14-12-2006 permitting permanent structures on the site after taking into consideration that the MoEF had stated since environmental significance and public open space amenity of the river flood plain should be recognized, it was urged that the authorities concerned (DDA) that an extension of similar development in the area between Yamuna and its flood protection bunds must not be proposed without due environmental planning and prior environmental clearance . It was highlighted that in the light of the suggestions of Ministry of Environment and Forests, studies were carried out and after completion of such studies permanent structures were permitted to be constructed on the site in April 2007. Unfortunately, the High Court has lost sight with regard to these material aspects.
52. In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 para 229, this Court has held that PIL should be thrown out at the threshold if it is challenged after the commencement of execution of the project. It was also held that no relief should be given to persons who approach the Court without reasonable explanation under Articles 226 and 32 after inordinate delay.
53. We reiterate that the delay rules apply to PILs also and if there is no proper explanation for the delay, PILs are liable to be summarily dismissed on account of delay. In the case on hand, it is not in dispute that both the petitioners though claiming that they are very much conversant with environment and ecology, approached the High Court only in the middle of 2007, hence on the ground of delay and laches, the writ petitions were liable to be dismissed.
In Printers (Mysore) Ltd. v. M.A. Rasheed, (supra), in 1988, a public interest litigation was filed by the first respondent herein, inter alia, on the ground that the impugned alienation dated 19.06.1985 was against public policy and, thus, illegal and void having regard to the fact that neither was any public auction held therefor nor was any tender called for; nor was any public advertisement for sale of the said land issued. In paragraph 25 Hon'ble Apex Court states :
25. Furthermore, the writ petition should not have been entertained keeping in view the fact that it was filed about three years after making of the allotment and execution of the deed of sale. The High Court should have dismissed the writ petition on the ground of delay and laches on the part of the first respondent. The Division Bench of the High Court also does not appear to have considered the plea taken by the appellant herein to the effect that the first respondent had been set up by certain interested persons. In a public interest litigation, the court should, when such a plea is raised, determine the same.
Hon'ble Apex Court in Leelawanti v. State of Haryana, (supra), rely upon State of M.P . v. Bhailal Bhai, reported at AIR 1964 SC 1006 where a Constitution Bench of Supreme Court held that even though no period of limitation is prescribed for filing a petition under Article 226 of the Constitution, the High Court can non-suit the petitioner who is guilty of latches. The Constitution Bench also observed that if the delay is more than the period prescribed for filing a suit then the same would ordinarily be treated as unreasonable and the High Court will be fully justified in using discretion and denying relief to the petitioner under Art. 226 unless cogent explanation is offered for the delay. While holding that PILs should be sparingly entertained and where public at large was to suffer, in R and M Trust v . Koramangala Residents Vigilance Group, reported at (2005) 3 SCC 91, Hon'ble Supreme Court observes:
34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third-party interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights?
35. We are of the opinion that delay in this case is equally fatal, the construction already started by the appellant in 1987 and building had come up to three floors. Thereafter it was stopped in 1988 and in March 1991 it resumed after permission was granted. The writ petition was filed in November 1991 meanwhile construction was almost complete. Therefore, delay was fatal in the present case and learned Single Judge rightly held it to be so. It was also brought to our notice that 46 multistory buildings have come up in this area. Learned counsel has produced photographs to show that buildings more than three and four floors have been constructed in and around this area.
In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, reported at (2013) 5 SCC 357, Apex Court holds that the petitioners in the transferred case failed to make out a case for directing the respondents to regularise the construction made in violation of the sanctioned plan. Rather, the ratio of the judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana, reported at (2006) 7 SCC 597, was clearly attracted. It reiterates that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas. This judgment does not contain any discussion on aspect of delay and laches.
71. We have the benefit of about 40 cases cited at the bar by the learned Counsel for parties in this exercise, and with thanks and respect, we wish to place it on record that the mention of the above precedents is sufficient for present adjudication. Copies of all these judgments are available on record. The concept of minor modification has been removed after 1994 amendment to S. 37 of MRTP Act and all modifications, whether substantial or otherwise are possible in the development plan if the same does not prejudice its character. Hence, case law having bearing on the nature of modification is not relevant here.
72. The judgments noted supra by us show that if the petitioner could have with normal prudence comprehended the illegality or then, taken steps to prevent it, he can not be presumed to be a diligent litigant. If there are any public advertisements or notifications or an opportunity to raise the objections, as a diligent citizen, he must have taken objection to it. He can not attempt to raise those objections open at that juncture at later point of time, after the things have proceeded further or irreversible. Having not availed the opportunity to stop the proposed change or denied a chance to those undertaking it to make amends at the threshold, petitioner can not be allowed to spring a surprise for anybody. This principle will have to be followed more stringently if third party interests are created and are being affected because of his inaction. However, there may be few factors which may not be perceived unless the files of concerned department are perused. Not obtaining NOC for subleasing or occupancy certificate, improper utilization of the funds or determination of premium or ground rent etc. may be few of them. If the knowledge of these factors is received later and grievance regarding any public injury is sustainable on its basis, this Court will be obliged to order rectification therein to the extent possible without displacing the third party interests.
73. Development agreement dated 21.02 1999 with builder, previous estimate given on 19.12.1994 by said Respondent 12 developer about wing A and wing B all could have been learnt by the petitioner before the permission under S. 36 of Maharashtra Public Trust Act was granted to the Sabha. Nature of transaction between the developers and Sabha could have been scrutinized by him had he seen the clearance given by the Income Tax Department. He could have also opposed the modification in development plan by objecting to the public notices. Illegalities or the irregularities urged by the petitioner noted by us as (A), (B), (D) and (E) supra are noting but fall out of the actions completed as a sequel of the public processes. When the construction started and was nearing completion in 2004, he could have raised the objection and stopped it. He permitted the hospital to come up and start functioning in 2007. He has woken up only in 2013. His RTI efforts started in 2011 only. We therefore find that contention about need of fresh allotment process and fresh lease as also grievance about not determining the additional premium or ground rent as per law can only be looked into. These issues which deserve to be looked into are (F) to (K) in paragraph 69 above.
74. In public inquiry under S. 36 of the BPT Act while permitting the Respondent 9 Sabha to develop the plot and to sublease it. This inquiry is after due public notice. This application u/S 36 is preferred after public advertisement inviting offers for development and the design to develop the plot commercially is apparent in it. One S.R. Patil had then acted with due diligence and objected to the permission granted under S. 36 not only in High Court but also before the Hon'ble Apex Court. Petitioner also could have been aware of these events had he shown due diligence. 9 shop blocks were constructed and sold on 07.05/2002 by Sabha. This also could not have escaped the attention of the petitioner. Change of user U/S 37 of the MRTP Act is after due public notice inviting the objections by the NMC (respondent 7) and this was in the year 2003. Said S.R. Patil only objected and opposed that change. The change of user on 21/02/2004 was also not a clandestine affair. Hospital of respondent No. 16 started functioning in 2006-2007 itself on suit plot and petitioner could have seen it. He ought to have shown his inquisitive nature and vigilance even then. In any case Petitioner claiming to be vigilant citizen and residing in vicinity, ought to have seen a huge building coming up on public utility plot and objected to it. In its order, Hon'ble Apex Court in 2004, has noted that this building was almost complete. Petitioner could have made inquiries at that juncture and gathered information. Petitioner has not explained why he could not raise voice on any of these occasions. This omission or inability militates with his stature as a diligent litigant propounding a public cause in such litigation. Obviously, this delay or latches can not be condoned. Had he acted with due vigilance, he could have attempted to stop change of user of subject plot and construction upon it. He could have also prohibited creation of third party interest and saved things from becoming irreversible. That way he would have served public in more better manner. As per the development agreement, the respondent 12 developer was to recover the construction cost from the tenants seeking the blocks or shops as non-refundable deposits. Thus these tenants who have given the deposit will suffer if the reliefs as sought are given to the petitioner, condoning his lapse. Moreover the activity being carried on suit plot is a Hospital and not a shop or any commercial office or blocks where different types of the businesses function and hence, people with varying background visit the premises. Hospital is a specialized activity where patients only visit, needing peculiar facilities and its raising requires huge amount. Once erected, it can not be put to any other use, otherwise the whole infrastructure will be a wastage. It is definitely catering to needy people and if We do not find any thing wrong in change of user, and, therefore with the commercial exploitation of plot is as per MRTP Act, then the discontinuation of Hospital would result in loss to its owners and inconvenience to the general patients. When the situation has already become irreversible, the larger interest has to prevail. The larger interest is to see that the Hospital continues on suit plot. The petitioner had filed applications under Right to Information Act (RTI) as late as on 05.05.2011 and up to 31.08.2012 he received the knowledge that Building Plan was rejected on 01.11.2012 and that NMC had issued demolition notice on 26.03.2012. The petitioner sent representations on 17.04.2011 and 14.07.2011. He also sent a representation to the Hon'ble Chief Minister on 23.12.2011. PIL has been filed within one year thereof.
75. There is one event which may not have come to the knowledge of the petitioner immediately. On 16/04/2005, the revised premium and ground rent has been determined by the respondent 8 NIT. It surfaced only during inquiries by him. It is regarding assessment of additional premium after the change of user for more FSI becoming available and ground rent accordingly. Though the user change is on 21/02/2004 and additional premium as also ground rent was to be worked out thereafter, it has been calculated with reference to year in 1961 when the suit plot first leased out. But then petitioner could have also learnt had he cared about the consequences and development. However, we can not overlook the loss sustained by the public revenue even if it is brought before the Court by one who is not diligent. None of the respondents have alleged any malice or dishonest intention and complained of victimization at hands of petitioner. Loss of public revenue not only to a local body like NIT but also to respondent 9 Sabha to whom the suit plot came to be allotted on concessional basis. Can such beneficiaries or then, at their cost, the private builders/developers can earn? Whether public properties can be exploited for the personal gains, is the cardinal question. If the respondent 9 Sabha does not qualify as a State under Art. 12 of the Constitution Of India, it is apparent that it can not escape the mandate of Art. 14. Respondents have not pleaded any special status enabling it to claim an exceptional treatment. Though the other challenges in this PIL may be eclipsed due to latches or delay, the loss to public revenue which has been caused while determining the additional premium or ground rent on 16/04/2005 could not have been imagined by anybody. This aspect, therefore, only needs to be examined as per law in this PIL.
76. The defence of the respondents in the matter of computation of additional premium or ground rent is that they have used initial year of grant of lease as base year. NIT however has also pointed out how it appendix M7 is extended by it to the respondent 9 Sabha. Respondents rely upon Rule 14.1 of DCR, 2000 to justify the construction of 9 shop blocks on subject plot. Said Regulations are sanctioned by the State Government under S. 31(1) of MRTP Act. Said rule allows various uses of buildings, occupancies and premises in various zones as given in Appendix M. Those uses can be modified by the Authority with the approval of the Director of Town Planning. It is not in dispute that in present matter we are concerned with Appendix M7. Appendix M7 lists uses permissible in public/semipublic zones. Schools, Colleges, Hostel for the students, Essential staff quarters are allowed. Similarly, Hospital, Dispensary, Maternity Homes, Health Centers, Complex for such uses, Dharmashala for use by the visitors to patients, Essential staff quarters, Veterinary hospital, Auditorium, Exhibition hall, Gallery are also permitted. Mangal Karyalaya and Community Halls are also included in it. Besides this, if subject plot is in excess of 4000 Sq. Mtrs., 15% of the area can be used for commercial purposes. These purposes can be Convenient shopping, bank's branch, small hotel etc. Income derived from such user is to be used for the purpose or object for which the subject plot is allotted. Before 2000 DCR, with effect from 18.05.1983, 1983 DCR was in force. As per Rule 7, the premium of land disposed of is to be the bid of the highest bid in auction or bid. Procedure stipulated therein envisages a fair market premium for it. Even when the land is disposed of at predecided premium, the Committee of Chairman of NIT, Collector of the City and Deputy Director of Town Planning have to determine it after considering the sale of similar or similarly situated lands in the vicinity of subject land, in immediately preceding year. The premium can not be less than the expenditure incurred for acquisition and development of such land. 1955 Rules have been quashed by this Court obviously as violating the provisions of Art. 14 of the Constitution of India. That judgment is not made available by any of the parties. However, when the respondent 9 Sabha is not claiming any privilege, allotment to it in 1960-1961 without following any transparent process for allotment needed to be rectified to the extent possible when revising the premium.
77. Whether conversion of user from public/ semipublic utilization to commercial purpose and additional FSI consequentially resulting itself warrants a process of reauction now must be looked into. No term either in initial lease deed of 1961 or then later renewed lease upto 31.03.2021 is pressed into service to demonstrate this result. Similarly no legal provisions in support are also brought to our notice. MRTP Act or the DCR permit change of user and hence, such change does not ipso facto result in determination of interest of holder therein. Lease granted as per law is thereafter a matter in realm of contract and the bilateral agreed terms can be superimposed only statutorily or modified bilaterally. Grant of land to respondent 9 in 1961, renewed lease for period from 1961 to 2021 are beyond the legal scrutiny in this PIL. We find the change of user is as per S. 37 of MRTP Act and hence, only question is whether any new lease deed was necessitated after such change. The sanction to such change in 2004 is subject to charging additional premium for more FSI becoming available to respondent 9 Sabha and proportionate hike in ground rent. This exercise and stipulation is also indisputable in this litigation. Accordingly, NIT has worked out the additional FSI and ground rent. Legality of this exercise is being evaluated little later in this judgment. Bit parties to the lease accepted that computation and hence, execution of appropriate document incorporating it became essential. Parties decided to enter into new lease deed providing for those terms and conditions. They could have also executed a corrigenda or an amendment deed. Unless a legal provision prescribing a particular course of action is pointed out, this exercise jointly agreed and taken, can not be objected to. User of subject plot was getting changed, commercial user was in offing and hence, terms suitable to allow exploitation as per the sanction order dated 21.02.2004 as per law while safeguarding the interest of respondent 8 NIT needed to be added. Accordingly, after working out additional premium and ground rent, the parties have entered into a new lease deed for the remainder of the renewed term i.e. upto 31.03.2021. Thus, for all practical purposes change in development potential of the subject plot for future has been recognized and provided for. Respondent 9 Sabha continues to hold very same plot for very same term but with added benefits and obligations. Hence, petitioner has failed to substantiate the contention that fresh advertisement or fresh auction of the subject plot was essential after 21.02.2004. In any case, this contention was open and could have been raised within reasonable time after the change of user or after the design to construct a huge building on subject plot became obvious to everybody. We therefore find no merit in the contention and also find it not open for judicial scrutiny due to laches and delay on part of the petitioners.
78. When the design to have a multistory building on PU or semipublic utility land was apparent to everybody, it follows that for a diligent mind it was a cause to inquire. Petitioners could have shown their diligence by submitting representations and knocking the doors of Courts, if the same were found not effective. Petitioner could have stopped the development, protected public property, public money as also third parties by taking timely steps. He can not be permitted to jeopardize the settled interests of third parties when he did nothing to stop the affairs from becoming irreversible. Challenges that building was occupied without securing proper occupancy certificate or completion certificate, its additional premium or ground rent is fixed on lower side illegally or malafidely could have surfaced had he been vigilant and made inquiries in 2004 or 2006. He has become active only in 2011 and then approached this Court in 2013. He has confined his challenge to only one development on North Ambazari road. Thus for his delayed waking up, interests of third innocent parties settled as per law can not be disturbed. Even grievance in relation to the unauthorized building construction or its extent and unwillingness of the respondent No. 7 NMC to proceed against it, is not of a nature warranting an order of its demolition in extraordinary jurisdiction. Though, we find substance in contention of Shri Mandlekar, learned counsel that notice for its removal is issued on 27.06.2016 by NMC to save its face here in the PIL, the issue is now pending in civil suit. We feel that interest of justice can be met with by expediting it.
79. However, if there are any highhanded or illegal deeds by such interest holders or third parties, or the facts on record demonstrate their participation in impugned action and if the same has resulted in loss of property or revenue to public bodies , the perspective has to be different. The parties to fraud on public can not in such circumstances plead bar of laches or delay. It appears that respondent no. 16 Hospital now in possession of Wing B , may not have been in picture either on 21.02.2004 or thereafter till it entered into an agreement of management with the developers. But the role of respondent No. 8 NIT, its officers, office bearers, position of respondent No. 9 Sabha, its officers, office bearers and position of other respondent developers , its officers, office bearers, in finalizing the terms and conditions of new lease or additional premium or ground rent needs to be investigated. If we hold that this computation is on lower side or due care caution was not taken while settling the new terms after the change of user, then these authorities or any other government department or officer found at fault must be dealt with as per law. If the errors or damage to public interest can be cured without prejudicing the settled interest of innocent third parties, those remedial measures can be adopted in future. The fixation of additional premium or ground rent on lower side, not obtaining NOC for creating any interest of third party, no or improper utilization of the funds by respondent 9 Sabha and State or NIT or NMC or the Charity Commissioner overlooking or avoiding to look into it, may be few such facets which can be rectified for future.
80. Having already negated the arguments on need of fresh public process for allotment on lease of the subject plot on account of change of user, only other factors noted by us as (F) to (K) supra in paragraph 69 survive for consideration. User has been changed subject to payment of additional premium for additional FSI and ground rent. All citizens can legitimately presume that NIT is going to calculate it as per law and protecting the public interest. Mischief or wrong committed by it can not see the light of day without first getting knowledge of lack of bonafides on part of respondent no. 8 NIT, its officers or office bearers. Even if person with knowledge of this error or mischief, suppresses his knowledge, once the same is pointed out to High Court, it can not refuse to examine the grievance if it is susceptible to rectification for future and public interest warrants it. If deliberately low premium is worked out, it may also indicate some abuse of position by the concerned for extraneous considerations. Dependent on it are the questions like whether any private concern or individuals earned huge profits at the cost of public in this development? How the additional income becoming available to it is used by the respondent No. 9 Sabha? Whether the Budget and accounts of Respondent No. 9 support its public charitable purpose? Whether respondent No. 8 NIT inserted any condition in the renewed lease deed requiring production of audited accounts, and whether NIT or then the Deputy/ Joint Charity Commissioner are monitoring adherence therewith? NIT ought to have insisted for obtaining its NOC before ushering any third person in possession of any portion of subject property. Whether NIT has knowledge of the terms and conditions of the agreements or documents executed or registered in favour of the occupants of the commercial blocks or the Hospital Respondent No. 16. Further more, to examine the defence that new DCR could not have been made applicable to 1961 disposal of land in favour of respondent No. 9 Sabha, we have to see whether provisions of Rule 25 of Land Disposal Rules prevail over subleases or agreements or arrangements between the Respondent No. 9 Sabha and actual occupants? It is not in dispute that 1955 Rules have been quashed by this Court and initial allotment to respondent No. 9 Sabha was under those rules. These Rules were not in force in 1996 when renewal from 1991 till 31.03.2021 was granted. 1983 Land Disposal Rules are occupying the field since 18.05.1983. Similarly, Development Control Rules of 2000 governed the construction and development works in Nagpur on 21.02.2004 and continue to do so on all relevant dates. Impact of these provisions on the above factors needs the scrutiny.
81. Respondents rely upon Rule 14.1 of The Development Control Regulations, 2000 (DCR, 2000) to justify the permission to construct 9 shop blocks on subject plot. Said Regulations are sanctioned by the State Government under S. 31(1) of MRTP Act. Said rule allows various uses of buildings, occupancies and premises in various zones as given in Appendix M. Those uses can be modified by the Authority with the approval of the Director of Town Planning. It is not in dispute that in present matter we are concerned with Appendix M7. Appendix M7 lists uses permissible in public/semipublic zones. Schools, Colleges, Hostel for the students, Essential staff quarters are allowed. Similarly, Hospital, Dispensary, Maternity Homes, Health Centers, Complex for such uses, Dharmashala for use by the visitors to patients, Essential staff quarters, Veterinary hospital, Auditorium, Exhibition hall, Gallery are also permitted. Mangal Karyalaya and Community Halls are also included in it. Besides this, if subject plot is in excess of 4000 Sq. Mtrs., 15% of the area can be used for commercial purposes. These purposes can be Convenient shopping, bank's branch, small hotel etc. However, this is subject to the condition that the income derived from such user is to be used for the purpose or object for which the subject plot is allotted. With effect from 18.05.1983, The Nagpur Improvement Trust Land Disposal Rules, 1983 were already in force. These rules are referred to as 1983 Rules hereafter. As per Rule 7, the premium of land disposed of is to be the bid of the highest bidder in auction or bid. Procedure stipulated therein envisages a fair market premium for it. Even when the land is disposed of at predecided premium, the Committee of Chairman of NIT, Collector of the City and Deputy Director of Town Planning have to determine it after considering the sale consideration of similar or similarly situated lands in the vicinity of subject land, in immediately preceding year. The premium can not be less than the expenditure incurred for acquisition and development of such land. As per rule 25, if there is any conflict between the provisions of 1983 Rules and the terms in the lease deed entered by the NIT, the provisions of 1983 Rules prevail. These 1983 Rules are framed by the State Government under S. 76 read with S. 89(1)(m) of the NIT Act, 1936. Its S.1(2) applies 1983 Rules to all lands vested in or acquired by the NIT under NIT Act, 1936. 1983 rules have come into force since 18.05.1983. Its preamble declares that 1983 Rules operate in supersession of Nagpur Improvement Trust Land Disposal Rules, 1955. The allotment to respondent No. 9 Sabha was under these 1966 Rules. Rule 6 of 1983 Rules contemplates disposal of land for commercial purpose only through public auction. We have already noted Rule 7 which permits disposal at pre-decided premium. Rule 8 of 1983 Rules is about terms of lease. It obliges NIT to dispose of the land only on lease in consideration of premium or ground rent or both for a term not exceeding 99 years. Sub rule (2) of Rule 8 is important for our purposes. It lays down that in cases where the lease period below 99 years is over and the lessee seeks renewal, respondent 8 NIT has to extend the lease period on payment of lease rent at market price prevalent at the time of renewal of lease. This renewal can be for balance period out of 99 years and without calling fresh tenders or resorting to auction. As per Rule 9, ground rent has to be 2% of this premium. Hence, this sub rule also militates with the need of fresh allotment or tender for renewal even if there is change of user.
82. It is not in dispute that 1955 Rules have been quashed by this Court. That judgment is not made available by any of the parties. However, the respondent 9 Sabha is not claiming any privilege and allotment to it in 1960-1961 appears to be without following any transparent process for allotment. There is no challenge to 1983 Land Disposal Rules before us. From reading of its preamble, Rule 8 and Rule 25, it is obvious that when first lease of 30 years in favour of Sabha expired, respondent 8 NIT was under obligation to allow renewal for period from 01.04.1991 to 31.03.2021 by charging premium at market rate prevailing in 1991. This first renewal is done in 1996. Nobody has challenged this renewal or then the premium or ground rent then charged. But this shows that even then, computation with reference to market prices in 1961 was out of reckoning. It could not have been relevant on 11.08.2005 when the impugned calculations were undertaken for a new renewal deed ultimately entered into between NIT and Sabha in 1996 after the change of user allowed on 21.02.2004. This renewal is upto 31.03.2021 only. In the light of express provisions of 1983 Rules seen above, it is apparent that even in 2005 or 2006, the lease premium ought to have been as determined with reference to market rate prevalent in year 2003 - 2004. Thus, even then NIT could not have and should not have fallen back on year 1961. Exercise undertaken by the NIT on 11.08.2005 is thus contrary to 1983 Rules. Thus charging less premium or ground rent, has resulted in loss of revenue to public and it is continuous one. Here that loss will continue till 31.03.2021. In view of this clear legal position, we do not find it necessary to look into terms of the first lease deed which has expired on 31.03.1991 or then renewal deed executed in 1996 between respondent 9 and NIT. 1983 Rule apply to subject land and have overriding effect on all earlier leases granted even under 1955 Rules if renewal thereof falls due after coming into force of 1983 Rules. Sub rule (2) would be redundant if NIT's contention that it applies to disposals under 1983 Rules only is accepted. On the contrary, above provisions of 1983 Rules indicate intention to subject the disposal of lands under 1955 Rules to 1983 Rules. Otherwise, rule 8(2) can not operate at all. Strenuous contentions of Adv. Mishra that 1983 Rules do not operate retrospectively need mention only to note that 1983 Rules do not affect leases under 1955 during its initial agreed term but force compliance with stipulations therein at renewal. Terms and conditions of such old leases are rendered nugatory by Rule 8(2) read with Rule 25 of the 1983 Rules. The conditions statutorily imposed operate of its own force and consent of parties is immaterial. This may be due to quashing of 1955 Rules by this Court. Hence, it is not necessary to delve into justification or explanation of 11.08.2005 exercise offered by NIT or calculations explained by advocate Shri Mishra. By no stretch of imagination, NIT could have used 1961 as base year for computation of premium or ground rent either in 1996 or then in 2005.
83. The relationship as lessor-lessee between respondent 9 Sabha and respondent 8 NIT continues even today. It has to last till 31.03.2021. Hence, the error then committed can be corrected and loss sustained by the public revenue can be recouped even now. Whether it is deliberately done by any officers or the office bearers of NIT and was it in due to political pressure or some other extraneous consideration with participation of respondent 9 Sabha are all irrelevant considerations. Collusion between the parties may at the most prove fraud on public and may call for some penal or disciplinary action. But the rectification and reimbursement can be allowed without touching said aspect.
84. Resolution No. 29/988 passed on 30.03.2002 by NIT permitting commercial use on 15% area of subject plot if Sabha i.e. Respondent No. 9 gave an indemnity bond to appropriate additional income generated thereby for its main object i.e. public charitable purpose is not in dispute. NIT has obtained an indemnity or undertaking accordingly. However, in this PIL neither NIT nor State Government has asserted that the income earned by the Sabha has been utilized as per that undertaking or bond. Respondent No. 9 Sabha should have itself placed on record increased sphere or frequency of its activities justifying the approvals given to it. In fact the respondent No. 8 NIT must regularly obtain the audited accounts and return from Sabha to discharge its obligation. Similarly, the Sabha should have produced before us the copies of accounts and budgets filed in the office of the Joint Charity Commissioner at Nagpur to demonstrate how the additional fund has been spent. Neither petitioner nor the concerned respondents have placed on record any data in this respect. To find out actual income of the respondent No. 9 Sabha, NIT should have perused the documents executed by the agents or attorneys of Sabha authorizing the persons who have paid for construction to occupy their respective blocks. There is no such plea by the NIT. Section 36 of the Maharashtra Public Trust Act directed NOC of NIT with a particular intention. Income Tax Department has allowed transaction in relation to additional FSI only. Hence, what is the nature of interest of such occupants in the structure or the land is not explained by anybody. Whether the persons paying get only a license which can be put to an end at any time by the NIT or then the arrangements also cast some obligations upon NIT is the moot question. NIT could have after perusal of all such documents or authorizations pointed out how its title is not diluted by the said arrangement. Though, there is no physical sub-division of the subject plot, whether the person who paid in full for the structure and is occupying it, can be said to have no right to the underneath land i.e. joint undivided share to the extent of FSI consumed by the structure purchased by him needed to be answered by the NIT. As per letter of NIT dated 17.8.2000 sent to State on the subject of grant of additional FSI to Sabha, no sub-lease or subdivision of plot was permissible. An undivided share only could have been transferred. Such permission was never sought thereafter, more particularly after 21.02.2004 and in any individual case. Copies of all such deeds should have been placed before us or then a responsible statement could have been made in this respect. One can not accept that normally the person paying for his constitution has also to pay for the proportionate FSI so as to secure his structure permanently. NIT, therefore, should have been a consenting party to all such agreements with the persons who have booked the commercial areas in subject plot i.e. its Wing B . Scrutiny of matter with this perspective in mind may throw more light and help in securing public interest in this matter or in other matters. The concerned authorities may thereafter either elect to use their rights and evolve suitable measures to prohibit repetition of such wrongs in other cases. We also grant leave to respondent No. 8 NIT or its successor and respondent No. 1 State to consider after such inquiries and as per its outcome, whether to renew the lease in favour of respondent No. 9 Sabha beyond 31.03.2021 following Rule 8(2) of the Land Disposal Rules, 1983 or then, to find new lessee through open competitive process ready to accept the subject plot in as is where is condition.
85. Before parting, it is to be noted that impact of change to commercial purpose from the public utility or semipublic purpose on the development plan or then on its character does not figure as a relevant yardstick in the entire exercise under S. 37 of the MRTP Act. No authority has commented upon the variation in total public or semipublic reservation percentage thereby. It is apparent that merely because such change is allowed in relation to the one land, it can not be claimed by the adjacent lands. Such change has to be an exception and an exception made on valid grounds can not become a comparable instance to invoke Article 14 of the Constitution of India. Here, we have refused to intervene only due to delayed approach or as the things have become irreversible. However, respondent State Government and Local Bodies are not allowed and can not permit further addition to structures on subject land. A fresh decision about desirability of tolerating such development after 31.03.2021 or lease in favour of the respondent No. 9 Sabha shall be then examined as per law. We hasten to add that these observations do not prohibit the said authorities to act as per law and take necessary decisions and measures, remedial or otherwise, in view of confidence reposed in them by the law.
86. As we have applied our mind in public interest and in non-adversarial lis, we will be failing in our duty if we do not place on record the relevant developments on judicial side having bearing on the planned development of the cities and towns as per MRTP Act.
87. Several writ petitions have been filed because of inability of the State Government or the Local Bodies or the Appropriate Authorities to acquire the lands earmarked for the public purposes. All landowners find that though the period of ten years has expired, these authorities are not in position to commence the land acquisition as per S. 126 of the MRTP Act. The owners or the developers, as their agents serve notices under S. 127(1) of the said Act, wait for stipulated period and then get a declaration from the Court that reservation earmarked on their land has lapsed and they are free to develop their land for the purpose/ user for which adjacent land can be developed. This notice can be issued after 10 years of the coming into force of the development plan and the person issuing notice has to wait for two years. The reservation on the land mentioned in notice does not lapse if steps for its acquisition are taken within said period of two years. Earlier this period was of 6 months and then in 2010, it was increased to 12 months, now it has been further amended to 24 months. Law on this deemed lapsing is seen in State of Maharashtra Vs. Bhakti Vedanta Book Trust and others, reported at 2013 (5) Mah. L.J. (SC) 195 and Shrirampur Municipal Council vs. Satyabhamabai Bhimaji Dawkher, reported at (2013) 5 Mah. L.J. (SC) 492 at Aurangabad Bench of this Court, one municipal council had approached with a grievance that as it was not getting sufficient revenue after withdrawal of the octroi, it was not in position to acquire. A Division Bench here also expressed concern after noticing the manner and speed with which the reservations were allowed to lapse and inability of Local Bodies or the State to provide funds for acquisition. A PIL then registered has been disposed because of special fund made available for such acquisition and increasing of waiting period after service of notice from 12 months to 24 months. Recently, again the local bodies have started making grievance of lack of funds. In one matter. It was pointed out that the Local Body was not in position to hike the taxes and generate funds. Almost all the Local Bodies are finding it difficult to pay pension, gratuity as also regular salaries. In a writ petition filed against Municipal Corporation, Akola , very recently the Municipal Commissioner has pointed out large number of vacancies and consequential delay in monitoring the developments which results in illegal constructions.
88. Illegal or unauthorized constructions are legalized regularly under public pressure in public interest by the Government. Even the encroachments have been regularized. This has not remained a one time measure and gave boost to those who wield influence to indulge in it for profit making. Conversion of user of land to a more profitable purpose through machinery under S. 37 is also sought. The municipal councils, under pressure, pass resolution either for deletion of reservation or for its alteration. Thereafter, on the strength of such resolutions, again intervention of the State is being sought. Thus legal scientific development of towns is getting paralyzed due to various factors and forces. All this has cut in roads in MRTP Act. In one matter before us, it became clear that the State Government does not have data ready with it to show the percentage of earmarked reservations lost by the law abiding public in the process. MRTP Act is intended for scientific development of towns by providing requisite extent of lands for public utility, gardens, playgrounds, residential purpose etc. These lands for garden, school, hospital, playground etc. are encircled by the residential complexes and hence, their residential or commercial potential increases. Influential owners or their developer agents then attempt to get the same dereserved. Hence, when under S. 37 of the MRTP Act, impact of proposed change on the character of the development plan is the norm, without all this material, it is impossible to comprehend it. A suo motu PIL is perhaps still being considered by this Court. A writ petition for declaration of lapsing of reservation of a Fire Station for NMC is being heard at the instance of members of a cooperative society which sold them the plots on said land. Their plots are recently regularize by the NIT under Gunthewari Regularization Act.
89. Sum and substance of this discussion is that more fundamental issue to be addressed is whether MRTP Act has served or is serving the purpose for which it has been enacted. If reservation earmarked has to remain on paper and disappear therefrom only at the instance of landowners because people are not ready and willing to pay for its acquisition, it may be felt that said Act and planned development is not the need of society. If it is still wanted by the Society, then as private lands can not be effectively earmarked for any user or if already marked, need to be acquired by paying compensation; the object of MRTP Act may again fail. Then, only alternative to provide lands for garden, playgrounds etc. are the lands vested with or owned by the State Government or the Local Bodies. Such Reservation necessarily needs to be fastened on these lands or then shifted to it, if some scientific orientation is to be maintained. The said lands therefore must continue with the State Government or the Local Bodies and their user must not be allowed to be modified. Commercial exploitation of such lands whether allotted at concessional rate or otherwise by any such allottee must be disallowed. In present matter as rightly pointed out by the town planning, plot with such high FSI was not required by the respondent 9. Said office pointed out proportion of FSI being shared by respondent No. 9 Sabha and the developer and had opposed the change of user or modification in development plan. A plot with 1/3rd area was ideal for Sabha and such huge plot with commercial potential could have been put to better public use. Respondent no. 9 can not sell major part of subject plot and through proceeds thereof, attempt to sustain itself on small piece thereof. Public bodies or Local Bodies have to remain relevant because of need of their work by the Society. Such bodies or Local bodies can not be allowed to sell the government property to sustain themselves. These bodies must generate revenue or funds as per law constituting them and provide service to public in proportion thereof. Profit resulting from any commercial activity on such plots must become part of public revenue. Individuals or their trusts or organizations can not be allowed to profit by procuring such lands and then disposing it of directly or indirectly in open market. All these are obviously policy decisions which may have been or are being taken by the elected representatives after due deliberations. We find that it is high time for having proper deliberations in this connection and there is no point in being complacent as MRTP Act exists.
90. Accordingly, we proceed to pass the following order :
1) We find the exercise dated 11.08.2005 for determination of additional premium and ground rent by the respondent No. 8 NIT, bad and quash it.
2) NIT shall undertake fresh decision on quantum of lease premium as also ground rent charged to respondent No. 9 Sabha at the first renewal for the period from 31.03.1991 to 31.03.2021 as also after change of user, with effect from 21.02.2004 till 31.02.2021, for additional FSI, as per Rule 8(2) of the Land Disposal Rules, 1983. This exercise shall be completed as per law within next three months after giving an opportunity of hearing to the respondent No. 9.
3) The additional premium and ground rent so becoming payable shall be recovered from the respondent No. 9 Sabha.
Current premium and ground rent shall be paid by Sabha to NIT within two months of its computation. Arrears shall be recovered by the NIT in 12 equal bimonthly installments either from the Sabha or then from the Respondent no. 16 Hospital, either jointly or severally.
4) We expedite the Regular Civil Suit 762 of 2016 filed by the respondent No. 16 against NMC assailing the notice dated 27.06.2016 for removal of unauthorized construction issued by it and direct completion of its adjudication within one year.
5) Respondent No. 8 NIT or other competent authority like NMC or State Government to study the documents by or through which the occupiers are placed in possession of their respective structures and correspondence regarding it, to find out whether there is any parting with its rights by respondent No. 9 Sabha in their favour by conferring upon them joint and undivided share.
6) Respondent No. 8 NIT or successor authority like NMC or State Government to study the audited books of accounts regularly maintained by respondent No. 9 Sabha to gather whether the additional income is used and utilized as per indemnity bond / undertaking furnished by Sabha.
7) If it is found that there is any transfer or a parting or subdivision of its title by respondent No. 9 Sabha in violation of 1983 Land Disposal Rules or the permission given by the Joint Charity Commissioner under S. 36 of the Maharashtra Public Trust Act or then the earnings due to change of user are not put to use as undertaken, the concerned respondent shall take suitable action as per law, after extending the opportunity to all likely to be affected thereby.
8) Respondent State Government through its Joint Charity Commissioner shall also verify whether budget for each year and duly audited accounts therefor have been presented to the competent authority as per Maharashtra Public Trust Act and funds have been properly made use of to increase or to add to its activities by the respondent No. 9 Sabha.
9) Respondent No. 8 NIT or its successor as also the State Government shall, also consider the need of renewing lease of subject plot after 31.03.2021 in favour of respondent No. 9 Sabha and adopt that course which would be more in the interest of general public. This decision shall be taken after a public advertisement and hearing all concerned within one year from today.
10) Respondent State Government also to deliberate on various issues having bearing on implementation of MRTP Act as noted supra in paragraph 88 and 89 above. These deliberations be also completed within next one year. However, before taking final decision on any proposal for dereservation, lapsing of reservation or then for change of the user, the State shall examine the data relevant to comprehend the factual impact of proposed deletion or change on character of the development plan.
11) If during any such hearing or inquiry, Chairman of respondent No. 8 NIT or then respondent No. 1 State finds any abuse of power or then wrongful gain by any of its employee or its office bearer, elected or nominated, ex or present, or by or on behalf of respondent No. 9 Sabha which has resulted in loss to public revenue, or then that any individual or any concern has secured any unwarranted gain or undue advantage in the process; requisite legal actions, civil as also criminal, against such person or concern, shall be initiated immediately.
12) We also grant to the petitioner costs of Rs. Ten Thousand each from the respondent No. 8 NIT and respondent No. 9 Sabha. Costs shall be deposited with the registry of this Court within next four weeks.