Case: NAGPUR IMPROVEMENT TRUST  Vs. M/S. BOMBAYWALA

3. The facts leading to the present appeals in nutshell are as under4. That the Nagpur Improvement Trust Act 1936 (hereinafter referred to as the NIT Act) was enacted on 25.12.1936.That the Nagpur Improvement Trust (hereinafter referred to as the NIT) vide Board Resolution dated 29.10.1960 framed an improvement Scheme known as Abhyankar Road Widening and Buty Mahal Street Scheme (hereinafter referred to asthe Scheme) in respect of 8.7 acres of land bearing Khasra No.320 and 315 (part) Mouza Sitabuldi, belonging to the Buty Family. That the same Scheme came to be framed under Section 31 of NIT Act for creating new or improving the existing means of communications and facilities for traffic . That,inter alia, a new 15 metres wide road was to be constructed to join Mahatma Gandhi Road to Abhyankar Road.That the internal road of 15 metres provided in the said Scheme is the subject matter of issue in the present matters.That, the said Scheme came to be published on 29.10.1961 as per Section 39 of the NIT Act. That, the NIT sought approval of the State Government of the above Scheme.That the State Government sanctioned the said Scheme in exercise of powers under Section44(1) read with Section 45(1)(a) oftheNIT Acton 23.09.1964.Accordingly, a Notification to that effect was also issued under Section 45 of the NIT Act4.1 That, thereafter, the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as theMRTP Act) came into effect on 11.01.1967.At this stage, it is required to be noted that, as per the MRTP Act, any Development Plan made under the said Act had to take precedence over any Scheme to the contrary. The same shall be discussed hereinbelow4.2 That NIT was appointed as the Planning Authority under the MRTP Act for Nagpur.That, in the year 1967, the First Final Development Plan for the City of Nagpur under Sections 22 and 31 of the MRTP Act was prepared and sanctioned.At this stage, it is required to be noted that, in the said final Development Plan, the above 15 metres road which was provided under the Town Planning Scheme under the NIT Act was not shown in the Development Plan under the MRTP Act4.3 That the NIT, in Board meeting dated 05.06.1981 and 31.12.1981, decided to implement the Scheme. That, a Special Land Acquisition Officer came to be appointed by the State Government for acquisition of the land and the proceedings of the land acquisition came to be initiated4.4 That a newspaper article was published on 21.06.1981 stating that the NIT has decided to handover theButy Mahal Development Scheme to the land owners for redevelopment. That, in the year 1983, a Writ Petition being WP.No.2326 of 1983 was filed by the land owners before the Nagpur Bench of the Bombay High Court challenging the acquisition.Initially, the High Court granted an interim stay on the acquisition proceedings4.5 That, on 07.06.1984, the land owners – Shri Yogeshwar Buty and Smt. Madhuribai Buty approached NIT to allot a reconstituted plot or plots bearing Nos.6, 7 and 8 belonging to them.However, the said request came to be rejected by the NIT on 17.08.19844.6 That, on 13.03.1995, one Smt. Indirabai Buty (land owner) submitted an application for permission to develop the land stating inter alia, that; (1) Development of the land would be as per the Development Plan of the NIT; (2) All the tenants would be accommodated in the proposed Scheme; (3) The betterment charges would be paid to the NIT.That, the Board of NIT in its meeting held on 11.03.1996 passed a Resolution wherein it was,inter alia, decided ……………..(1) A plot was allocated in the matter of Shri Yadhuraj Sanghani; (2) Smt. Indirabai Buty and others land owners to accommodate in their proposed Scheme, the tenants in the area of the reconstituted plot and (3) All the petitions in respect of the subject plot would have to be withdrawn unconditionally.On the basis of the said Resolution of the NIT dated 11.03.1996, Writ Petition No.2326 of 1983 challenging the acquisition was withdrawn by the land owners4.7 In the meantime, in the year 1989, the First Final Development Plan which was earlier prepared and sanctioned in the year 1986, came to be revised. Again, the above 15 metres internal road was not depicted in the revised DP4.8. It appears that, in the year 1997, NIT addressed letters to the Urban Development Department requesting the latter to obtain permission from the Government to relax Rule 5(2) of the NIT (Land Disposal) Rules, 1983 (hereinafter referred to as the1983 Rules) under Rule 26 of the 1983 Rules, to allocate the reconstituted plot in the present Scheme.That the State Government vide order dated 07.10.1997 issued under Rule 26 of the 1983 Rules relaxed Rule 5(2) and allotted the reconstituted plot in Survey Nos.3117, 3119, 3123, 3127, 3120, 3122, 3124 and 3125 in Khasra No.320 Mouza Sitabuldi, subject to certain conditions including inter alia that …………(i) The Applicants would accept the compensation of the land fixed by the Land Acquisition Officer and give possession of the lands to him;(ii) Development of the land would as per the Development Plan of NIT;(iii)All the tenants are to be accommodated in the Scheme and(iv) That in the interest of tenants the NIT fixed the plot allotment rate @ 50% of the market value, without prejudice to Rule 7(3) of the 1983 Rules.9 That the NIT passed a Board Resolution on 23.10.1997 to implement the altered Scheme in terms of G.O. dated 07.10.1997. That the Special Land Acquisition Officer, NIT passed an Awarddated16.12.1997 in respect oftheland admeasuring 5677 sq.ft bearing Khasra No.320 Sitabuldi, Nagpur. That, pursuant to the Award declared by the Land Acquisition Officer, possession of the land was taken by the Land Acquisition Officer and handed over to NIT.It appears that, out of 271552.60 sq.ft of the land, only 114079.36 sq.ft was acquired by NIT and the rest of the lands remained with the land owners4.10 That the Final Development Plan in terms of Section 31 of the MRTP came to sanctioned in the year 20014.11 That pursuant to the G.O. dated 07.10.1997, the process of widening of the Abhyankar road was initiated and notices were issued for demolition of shops. At that stage, Writ Petition No.798 of 2002 was filed by some of the Abhyankar Road tenants challenging the demolition notices issued by the NIT to the tenants in the process of road widening.The said Writ Petition came to be dismissed by the High Court by judgment and order dated 22.02.2002. The matter was carried before this Court. Before this Court, a compromise was reached between the petitioners of W.P.No.798 of 2002 and land owners and NIT.By order dated 08.04.2002, SLP© No.4846 of 2002 was disposed of in terms of the compromise arrived at between the land owners, the tenants (only on writ petitioners) original petitioners to W.P.No.725 of 2002), whereininter aliathe following conditions wereThe Landlord shall construct a multi-storeyed building on the reconstituted plot that was to be allotted to him by theThe Tenant and Landlord shall within a period of one week from the filing of the compromise petition would vacate such area out of the property covered in the instant proceedings in their possession as is required for widening of the Abhayankare compromise also provided, NIT to allot one single reconstituted plot and redevelopment of suit property to be carried out in accordance with the Development Plan of Nagpur City and all tenants to be rehoused post development4.12 That thereafter, on the request made by the owners, the Resolution was passed by the NIT dated 23.10.2003 to allot a single reconstituted plot admeasuring 10602.09 sq.mts as undivided share and the same was offered to the Buty family. That thereafter, the Government by letter dated 12.11.2003 allotted the reconstituted plot to the owners.From the letter dated 12.11.2003, it appears that the land for road will be provided as per the Development Plan and that the beneficiaries will have to make land available for road widening and parking4.13 It appears that thereafter the NIT represented to the State Government vide Representations dated 16.08.2005 and 29.03.2006 purportedly under Section 37(1) of the MRTP Act in order to increase the width of the Abhyankar Road from 12 metres to 24 metres and for converting the reconstituted plot from residential to commercial in order to accommodate the tenants running commercial shops4.14 It appears that thereafter on 02.08.2006, the owners entered into a development agreement with one of the petitioners herein – M/s Goel Ganga Infrastructure & Real Estate Pvt. Ltd. For developing the property bearing Khasra No.3204.15 That thereafter the State Government passed an order dated 22.06.2007 under Section 37(1) of the MRTP Act permitting the change of use in respect of Khasra No.320 and 315 (Part) from residential to commercial.It appears that the permission was also granted by the State to widen the Abhyankar Road to 24 metres in place of 12 metres4.16 It appears that thereafter the provisional sanction was granted by NIT on 22.04.2008 to the drawing/building map to the layout plan submitted by developer for the construction of a commercial complex. It appears that thereafter vide letter dated 18.08.2009, the NIT issued a letter to the land owners allotting a single reconstituted plot admeasuring 114079.36 sq.mts to the land owners, subject to the conditions mentioned in the said letter.That thereafter, on 10.02.2010, a lease deed was executed between the NIT and the land owners in respect of the reconstituted plot subject to the terms and conditions mentioned in the allotment letter dated 18.08.2009. It appears that thereafter on 15.05.2012, the NIT sanctioned the Final Layout Plan in respect of the reconstituted plot as per the D.C.R. of Nagpur City. That the building plan also came to be sanctioned on 27.06.2012 in accordance with the D.C.R. of Nagpur City. That, on 10.12.2014, building permit and commencement certificates were issued by the NIT subject to certain conditions specified therein.That a revised building plan was also sanctioned by the NIT on 11.12.2014 subject to the conditions mentioned therein4.17 That thereafter on 24.04.2015, the NIT issued notices to the tenants asking them to vacate a portion of their shops so as to enable construction as per the layout plan4.18 The aforesaid notices gave rise to filing of Writ Petition No.2695 of 2015 before the High Court of Bombay, Nagpur Bench.In the said Writ Petition, the Respondents Nos.1 to 18 herein the original writ petitioners prayed interaliafor an order quashing the notices issued by the NIT on 24.04.2015. That the said petition was opposed by the original writ petitioners as well as the NIT.It appears that thereafter the original writ petitioners filed an application being C.A.No.1615 of 2015 in W.P.No.2695 of 2015 praying for amendment to the prayers in the writ petition and allow them to challenge the sanctioned plan dated 27.06.2012 and the revised plan dated 11.12.2014.The said amendment was opposed by the original land owners and the developers. However, thereafter High Court allowed the said Amendment application4.19 It appears that, during the course of the hearing, the High Court by order dated 03.09.2015 in W.P.No.2695 of 2015 directed the Chairman, NIT to explore the possibility of an amicable settlement by calling the representatives of both the tenants and the developers and land owners and directed to submit a report to the Court.It appears that, pursuant to the order dated 03.09.2015, the Chairman, NIT called all the parties.That thereafter the Chairman, NIT submitted a report on 15.10.2015 stating that no settlement could be arrived at between the parties4.20 That thereafter, by impugned judgment and order, the High Court has allowed the Writ Petition and has quashed and set aside the demolition notice dated 28.04.2015 issued by the NIT.The High Court has also further observed that it will be open for the NIT to issue fresh notices of demolition to the writ petitionersafterthe sanctionedlayout plandated 15.05.2012, the building permit granted on 27.06.2012 revised on 11.12.2014 as well as the construction, if any, carried out are brought in conformity with the Scheme publishedunder Section 45 oftheNIT Actof 23.09.1964. While passing the impugned judgment and order the High Court has observed and held that the layout plan sanctioned in the building permit granted are contrary to the provisions of the Scheme published and sanctioned under Section 45 of the NIT Act and that the same suffers from vice of internal mischief4.21 That the impugned judgment and order passed by the High Court dated 15.09.2016 in W.P.No.2595 of 2016 is the subject matter of the present appeals.

Reasoning:
11.8 Section 43 of the MRTP Act provides for restrictions on development of the land after the date on which the declaration of intention to prepare the Development Plan for any area is published in the official gazette except as provided under proviso to Section 43 of the Act.Section 46 ofthe MRTP Actprovides that the PlanningAuthorityin considering the application for permission for development shallhave due regard to the provisionsof any draft or final planor proposals published by means of notice submitted or sanctioned under the MRTP Act.Section 59 of the MRTP Act provides for preparation of the Scheme under the MRTP Act, which specifically provides that the Planning Authority may prepare one or more Town Planning Scheme for the area within its jurisdiction or any part thereof for the purpose of implementing the proposals in the Final Development Plan. As such, we not concerned with Section 59 of the MRTP Act, as in the present case, the Scheme which provides 15 metres internal road was prepared and sanctioned under the provisions of the NITAct and prior to the enactment of MRTP Act and, therefore, Section 39 read with Section 92 shall be applicable11.9 Therefore, on conjoint reading of Sections 39, 43, 46 and even Section 59 of the MRTP Act, the Development Plans prepared and sanctioned under the provisions ofthe MRTP Act shall prevail. Therefore, there cannot be any development and/or construction permitted contrary to the Development Plan prepared and sanctioned under the provisions of the MRTP Act, though the Scheme prepared and sanctioned under Section 45 of the NIT Act may permit such development and/or construction. As such, the aforesaid view which we are taking is supported by the decision of this Court in the case of Manohar Joshi (supra). In the case of Manohar Joshi (supra), after considering the relevant provisions of the MRTP Act as well as the NIT Act, this Court has specifically observed and held that when there is a conflict between the Development Plan prepared and sanctioned under the provisions of MRTP Act and the Scheme sanctioned under the provisions of the NIT Act, the DP shall override the TP Scheme.It is also further observed that even if the variation, as directed under Section 39 of the MRTP Act does not take place,the land cannot be put to use, in any way, in contradiction with the provisions of DP Plan.In the case ofManohar Joshi(supra)this Courtconfirmed the findings recorded by the High Court that the DP Plan overrides the TP Scheme. This Court did not accept the submission that the Development Plan and the TP Scheme operate independent of each other and, until the State Government exercise its power of eminent domain under the Development Plan, and acquires the land, the land owners can develop its property as per the user permitted under the TP Scheme.While not accepting the above submission, it is observed by this Court that permitting a development contrary to the provisions of the Development Plan, knowing fully well that the user under the TP Scheme is at variance in the Development Plan will make provisions of Sections 39, 42, 46 and 52 of the MRTP Act meaningless.Therefore, the contrary observation and finding recorded by the High Court that unless and until the Scheme is varied under Section 46 of the NIT Act as required under provisions of Section 39 of the MRTP Act, the Scheme sanctioned under Section 45 of the NIT Act shall subsist and can be enforced, cannot be sustainedand the same deservestobequashedand set aside11.10 It is required to be noted that though in the Scheme sanctioned under the provisions of the NIT Act proposing 15 metres internal road was in operation since 23.01.1964,when the MRTP Act came into force and even thereafter when the First Development Plan was sanctioned under Section 31 of the MRTP Act for Nagpur in the year 1976 in whichthere was no proposal for 15 metres internal road, and even thereafter, twice the Development Plan was revised first in the year 1989 and again in the year 2001 in which also there was no provision for the 15 metres internal road, despite the above, at no point of time, anybody including the original writ petitioners challenged the Development Plan under the MRTP Act in which the 15 metres internal road was not shown.Even thereafter also, at no point of time, and even in the writ petition, the original writ petitioners challenged and prayed to set aside the Development Plan in which there was no provision for 15 metres internal road, though the same was mentioned in the Scheme prepared and sanctioned under Section 45 of the NIT Act11.11 It is also required to be noted that even the land owners/developers have got the layout plan sanctioned and obtained the building permission under the provisions of the MRTP Act.Considering the object and purpose of the MRTP Act noted hereinabove, it appears that though there was a provision for internal 15 metres road in the Scheme under the NIT Act which was sanctioned in the year 1964, thereafter much development had taken place and there are changed circumstances. In the Development Plan/revised Development Plan the existing road came to be widened from 12 metres to 24 metres and, therefore, when the DP was prepared and sanctioned under the MRTP Act, there was no proposal for 15 metres internal wide road. As discussed hereinabove, the Development Plan prepared and sanctioned under the MRTP Act would override the TP Scheme. As observed hereinabove, there cannot be any development and/or construction permitted contrary to the DP Plan under the MRTP Act. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained11.12 A faint attempt was made on behalf of the original writ petitioners that, in the DP Plan, there was punctuated line which can be said to be 15 metres internal road from Abhyankar Road.However, on considering the part plan of sanctioned Development Plan of Nagpur City sanctioned by Notification dated 10.09.2001 (upon which the reliance has been placed by the original writ petitioners), the aforesaid cannot be accepted. As rightly contended on behalf of the NIT, the punctuated lines are described as Mouza Boundary/NIT Scheme Boundary.It is to be noted that even the High Courtnoted that there is a conflict between the DP Plan and the Scheme sanctioned under Section 45 of the NIT Act11.13 Even the findings recorded by the High Court that the action of the NIT in sanctioning the layout plan and granting building permit is mischief of law, cannot be accepted.The layout plans are sanctioned and the building permit has been granted absolutely in consonance with the DP sanctioned under the MRTP Act.The demolition notices were received pursuant to and in furtherance of the building permit and so as to enable the original land owners/developersto put upthe constructionas perthe layout plan sanctioned and the building permit granted. Therefore, the High Court has erred in holding that the action of the NIT was mischief in law11.14 It is required to be noted that, on one hand, the High Court has specifically observed in paragraph 86 that the High Court has not set aside and it is also not necessary for theHigh Court to set aside the layout plan and the building permit granted by the NIT, the observations made by the High Court in paragraph 89(2) would tantamount to virtually quashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observations made by the High Court in paragraph 89(2),the observation made by the High Court in earlier part of the judgment virtually restrains the original land owners/developers not to put up any construction on thebuildinglayoutplan and thebuilding permitgranted under the MRTP Act.Therefore, it appears that though not specifically quashing and setting aside the sanctioned layout plan and the building permit granted under the MRTP Act, the High Court has nullified the sanctioned layout plan and the building permit granted under the MRTP Act11.15 It is also required to be noted that the dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants.Now, only 18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers.As,at this stage,it is required to be noted that even those tenants with whom the original land owners/developers have entered into a compromise before this Court have appeared through the Advocate and have stated that they are out of possession since last more than ten years and therefore, they all have requested to quash and set aside the impugned judgment and order passed by the High Court and permit the land owners/developers to complete the construction11.16 Insofar as the submission made by the learned counsel appearing on behalf of the original writ petitioners that after the impugned judgment and order passed by the High Court, the NIT has modified the Scheme as permitted by the High Court and, therefore, the impugned judgment and order passed by the High Court is acted upon and, therefore, the impugned judgment and order passed by the High Court may not be permitted to be challenged by the NIT and/or the developer is concerned, the same has no substance.Merely because to avoid any further legal complication, if the NIT has modified the Scheme that would not preclude the NIT and/or the original land owners/developers to challenge the impugned judgment and order11.17 In view of the above submissions and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court deserves to be quashed and set asideTRANSFERRED CASE © No.23/2018:12. Now, so far as the Transferred Case © No.23/2018 is concerned, the Writ Petition filed by the original writ petitioners being WritPetition No.5005 of2017has been transferred to this Court pursuant to the order passed by this Court dated 03.11.2017. In the petition, the original writ petitioner have prayed to quash and set aside the Notification dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167 dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which the original Scheme of 1964 sanctioned under Section 45 of the NIT Act has been modified in exercise of power under Section 45 of the NIT Act and the 15 metres internal road has been deleted12.1 It is vehemently submitted on behalf of the original writ petitioners that the Notification modifying the Scheme and deleting 15 metresinternal road iswithout followingany procedure as required under the Act and without inviting any objections and even the approval of the State Government has not been obtained.However, considering the contents of the counter affidavit filed on behalf of the NIT in which it is specifically stated that after considering the objections sent by the 15 writ petitioners in Petition No.2017, the Authority unanimously passed a Board Resolutionin exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to the petitioners. The decision to modify the Scheme by deleting 15 metres internal road has been taken after considering the objections raised by the writ petitioners.It is required to be noted that Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act.It is required to be noted that when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001,the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned under the MRTP Act,the same cannot be said to be illegal warranting interference of this Court.Therefore, challenge to the Notification dated 21.04.2017 issued by the NIT and the respective NIT Resolution modifying the Scheme deleting 15 metres internal road fails.