# NAGPUR IMPROVEMENT TRUST & ORS v. M/S BOMBAYWALA & ORS

- **Citation:** [2019] 1 S.C.R. 1001
- **Court:** Supreme Court of India
- **Decided:** 2019-01-22
- **Case number:** Civil Appeal No. 937 of 2019
- **Bench:** A. K. Sikri, Ashok Bhushan, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nagpur-improvement-trust-ors-v-m-s-bombaywala-ors-33726
- **Pages:** 28

## Headnote

Maharashtra Regional Town Planning Act, 1966 - Purpose
of its enactment - Held: To make provisions for planning the
development and the use of land in regions established for their
purpose and to ensuring that Town Planning Schemes are made in
a proper manner and their execution is made effective.
Maharashtra Regional Town Planning Act, 1966 - s.59 -
Improvement scheme - Abhyankar Road Widening and Buty Mahal
Street Scheme was framed under Nagpur Improvement Trust Act in
the year 1960 for creating improved means of communications and
facilities for traffic - The scheme provided for 15 metre internal
road - However, the Development Plans made under the MRTP Act
which came into effect on 11.1.1967 did not provide for 15 metre
internal road - NIT decided to implement the scheme - State
Government allotted reconstituted composite plot to the land owners
- Pursuant thereto, the process of widening of Abhyankar Road
was initiated and notices were issued for demolition of shops - Writ
petitions filed for quashing of the notices - High Court quashed
the notices of demolition - High Court also observed that as in the
Scheme sanctioned under s.45 of the NIT Act, 15 metre internal
road is provided, unless the same is varied and/or modified under
s.46 of the NIT Act by the Planning Authority, the same shall have
to be implemented - On appeal, held: The Development Plan made
under the MRTP Act would take precedence over any Scheme to
the contrary - s.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 -
Conjoint reading of ss.39, 43, 46 and s.59 of the MRTP Act showed
that the Development Plans prepared and sanctioned under the
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provisions of the 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 s.45 of the NIT Act may permit such development and/or
construction - In case of a conflict between the MRTP Act and the
NIT Act, the MRTP Act will prevail - Nagpur Improvement Trust
Act, 1936 - s.45.
Maharashtra Regional Town Planning Act, 1966 - s.39 -
Modification of scheme deleting 15 metres wide road - Permissibility
- Held: s.39 of the MRTP Act mandates the Planning Authority to
vary the Scheme in line with the Development Plan sanctioned under
the MRTP Act - In the transferred case in question, 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 - Thereafter,
when the Scheme to the extent in conflict with the DP Plan was
modified as mandated under s.39 of the MRTP Act, the same cannot
be said to be illegal - Therefore, when s.39 MRTP Act and the
provisions of the NIT Act are read harmoniously, the impugned
Notification modifying the Scheme and/or Board Resolution
modifying the Scheme deleting 15 metres wide road, which is in line
with the Development Plan sanctioned under the MRTP Act, cannot
be said to be illegal - Nagpur Improvement Trust Act, 1936 - s.45.
Disposing of the matters, the Court
HELD: 1. The Final Development Plan of 1976 did not
contain the 15 metres internal road from the land in question as
against the 15 metres internal road provided in the final Scheme
of 1964. Thus the Scheme of 1964 prepared and sanctioned the
provisions of the NIT Act to the extent of providing 15 metres
internal road can be said to be not in consonance with the
Development Plan sanctioned under the provisions of the

## Text

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NAGPUR IMPROVEMENT TRUST & ORS.
v.
M/S BOMBAYWALA & ORS.
(Civil Appeal No. 937 of 2019)
JANUARY 22, 2019
[A. K. SIKRI, ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Maharashtra Regional Town Planning Act, 1966 - Purpose
of its enactment - Held: To make provisions for planning the
development and the use of land in regions established for their
purpose and to ensuring that Town Planning Schemes are made in
a proper manner and their execution is made effective.
Maharashtra Regional Town Planning Act, 1966 - s.59 -
Improvement scheme - Abhyankar Road Widening and Buty Mahal
Street Scheme was framed under Nagpur Improvement Trust Act in
the year 1960 for creating improved means of communications and
facilities for traffic - The scheme provided for 15 metre internal
road - However, the Development Plans made under the MRTP Act
which came into effect on 11.1.1967 did not provide for 15 metre
internal road - NIT decided to implement the scheme - State
Government allotted reconstituted composite plot to the land owners
- Pursuant thereto, the process of widening of Abhyankar Road
was initiated and notices were issued for demolition of shops - Writ
petitions filed for quashing of the notices - High Court quashed
the notices of demolition - High Court also observed that as in the
Scheme sanctioned under s.45 of the NIT Act, 15 metre internal
road is provided, unless the same is varied and/or modified under
s.46 of the NIT Act by the Planning Authority, the same shall have
to be implemented - On appeal, held: The Development Plan made
under the MRTP Act would take precedence over any Scheme to
the contrary - s.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 -
Conjoint reading of ss.39, 43, 46 and s.59 of the MRTP Act showed
that the Development Plans prepared and sanctioned under the
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provisions of the 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 s.45 of the NIT Act may permit such development and/or
construction - In case of a conflict between the MRTP Act and the
NIT Act, the MRTP Act will prevail - Nagpur Improvement Trust
Act, 1936 - s.45.
Maharashtra Regional Town Planning Act, 1966 - s.39 -
Modification of scheme deleting 15 metres wide road - Permissibility
- Held: s.39 of the MRTP Act mandates the Planning Authority to
vary the Scheme in line with the Development Plan sanctioned under
the MRTP Act - In the transferred case in question, 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 - Thereafter,
when the Scheme to the extent in conflict with the DP Plan was
modified as mandated under s.39 of the MRTP Act, the same cannot
be said to be illegal - Therefore, when s.39 MRTP Act and the
provisions of the NIT Act are read harmoniously, the impugned
Notification modifying the Scheme and/or Board Resolution
modifying the Scheme deleting 15 metres wide road, which is in line
with the Development Plan sanctioned under the MRTP Act, cannot
be said to be illegal - Nagpur Improvement Trust Act, 1936 - s.45.
Disposing of the matters, the Court
HELD: 1. The Final Development Plan of 1976 did not
contain the 15 metres internal road from the land in question as
against the 15 metres internal road provided in the final Scheme
of 1964. Thus the Scheme of 1964 prepared and sanctioned the
provisions of the NIT Act to the extent of providing 15 metres
internal road can be said to be not in consonance with the
Development Plan sanctioned under the provisions of 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. Section 59 of the MRTP Act is relevant as in
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the present case, the Scheme which provides 15 metres internal
road was prepared and sanctioned under the provisions of the
NIT Act and prior to the enactment of MRTP Act and, therefore,
Section 39 read with Section 92 shall be applicable. A conjoint
reading of Sections 39, 43, 46 and even Section 59 of the MRTP
Act show that the Development Plans prepared and sanctioned
under the provisions of the 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. [Paras 11.7-11.9][1022-D-E, GH; 1022-A-B]
2. 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 were 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. The Development
Plan prepared and sanctioned under the MRTP Act would override
the TP Scheme. 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 sustained. [Para 11.11][1024D-F]
3. 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/developers to put up the
construction as per the 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 law. 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
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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. [Paras 11.13, 11.15][1025B-C, F-H; 1026-A-B]
4. TRANSFERRED CASE (C) No.23/2018:
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. 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.
[Para 12.1][1027-C-F]
Manohar Joshi v. State of Maharashtra & Anr. (2012)
3 SCC 619; Scheduled Caste and Weaker Section
Welfare Association v. State of Karnataka (1991) 2 SCC
604 : [1991] 1 SCR 974 - relied on.
Case Law Reference
(2012) 3 SCC 619
relied on
Para 5
[1991] 1 SCR 974
relied on
Para 8
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 937 of
2019.
From the Judgment and Order dated 15.09.2016 of the High
Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No.
2695 of 2015.
WITH
Civil Appeal Nos. 938, 939, 940, 941, 942 and 943-944 of 2019
and T.C.(C) No. 23 of 2018.
Saurav Kirpal, V. Giri, Mukul Rohatgi, Sr. Advs., Mehul M. Gupta,
Virat Mishra, R. P. Gupta, Satyajit A. Desai, Anshuman Singh, Ms. Anagha
S. Desai, Sameer Rohatgi, Akshay Naik, Akshit Pradhan, Prashant
Pakhiddey, Abhay Kumar, Hrishikesh Chitaley, Shubhranshu Padhi,
Venkita Subramoniam T.R, Rahat Bansal, R. Sharma, Ms. Liz Mathew,
Kush Chaturvedi, Ms. Rukhmini Bobde, Charuhas Dharmadhikari,
Anirudh Ananthakrishnan, Kumar Shashank, Nivesh Kumar, Manik Sethi,
Vishal Prasad, Ms. Soumya, Ms. Mayuri Kulkarni, Shriram P. Pingle,
Ms. Anagha S. Desai, Ms. Deepa M. Kulkarni, Nishant Ramakantrao
Katneshwarkar, Sanjay Ghose, Nitin Bhardwaj, Rameshwar Prasad
Goyal, Aman Varma, S. Padhi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J. Leave granted in all these Special Leave
Petitions.
1. As common question of law and facts arise in this group of
appeals arising out of theimpugned judgment and order dated 15.09.2016
passed by the High Court of Bombay, Bench at Nagpur passed in Writ
Petition No.2695 of 2015, all these appeals are being disposed of by this
common judgment and order. For the sake of convenience, Civil Appeal
arising out of the SLP© No.32089 of 2016 is treated as lead matter and
the facts in the said appeal are narrated.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 15.09.2016 passed by the Division Bench of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur passed in
W.P.No.2695 of 2015 by which the Division Bench has allowed the said
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Writ Petition preferred by the respondents Nos.1 to 18 herein-original
petitioners Nos.1 to 18 some of the occupants/tenants of the building in
question and by which the Division Bench has set aside the notice dated
24.04.2015 issued by the Nagpur Improvement Trust, the original
respondents-Nagpur Improvement Trust and others have preferred the
present appeals.
3. The facts leading to the present appeals in nutshell are as under.
4. 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 as "the 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 roadof 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 Section 44(1) read with Section
45(1)(a) of the NIT Act on 23.09.1964. Accordingly, a Notification to
that effect was also issued under Section 45 of the NIT Act.
4.1 That, thereafter, the Maharashtra Regional Town Planning
Act, 1966 (hereinafter referred to as the "MRTP 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
hereinbelow.
4.2 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
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road which was provided under the Town Planning Scheme under the
NIT Act was not shown in the Development Plan under the MRTP Act.
4.3 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 initiated.
4.4 That a newspaper article was published on 21.06.1981 stating
that the NIT has decided to handover the "Buty 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 proceedings.
4.5 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 17.08.1984.
4.6 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 YadhurajSanghani; (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 owners.
4.7 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 DP.
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4.8 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 the "1983 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.
4.9 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 Award dated
16.12.1997 in respect of the land 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 owners.
4.10 That the Final Development Plan in terms of Section 31 of
the MRTP came to sanctioned in the year 2001.
4.11 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
compromisearrived at between the land owners, the tenants (only on
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writ petitioners) original petitioners to W.P.No.725 of 2002), wherein
inter alia the following conditions were specified:
• The Landlord shall construct a multi-storeyed building on the
reconstituted plot that was to be allotted to him by the NIT.
• The 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 Abhayankar
Road.
The 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 development.
4.12 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 parking.
4.13 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 shops.
4.14 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.320.
4.15 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 metres.
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4.16 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
therein.
4.17 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 plan.
4.18 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 inter alia for 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 application.
4.19 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
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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
parties.
4.20 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 petitioners after the sanctioned layout
plan dated 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 published under Section 45 of the NIT
Act of 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 mischief.
4.21 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.
5. It appears that, in the meantime and after the impugned judgment
and order passed by the High Court, the original Scheme sanctioned
under Section 45 of the NIT Act which provided 15 metres internal road
came to be modified as provided under the NIT Act by deleting 15 metres
internal road. The same came to be published in the Government of
Maharashtra Gazette on 24.04.2017. That the W.P.No.5005 of 2017
was filed by the 18 tenants/shopkeepers before the Nagpur Bench,
Bombay High Court questioning the Resolution passed by the NIT dated
24.04.2017 issued under Section 46 of the NIT Act deleting 15 metres
internal road and another internal road from the Scheme. That a Transfer
Case No.23 of 2018 was filed before this Court praying inter alia for
transfer of W.P.No.5005 of 2017 to this Court. That is how, the Transfer
Case No.23 of 2015 is also listed along with the present group of appeals.
5.1 We have heard the learned counsel appearing for the
respective parties in the transferred Writ Petition No.5005 of 2017 also,
along with the other appeals arising out of the impugned judgment and
order dated 15.09.2016 passed in W.P.No.2695 of 2015.
NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA
[M. R. SHAH, J.]
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6. Mr. V. Giri, Mr. Mukul Rohtagi and Mr. Dhruv Mehta, learned
senior counsel appearing on behalf of the respective appellants have
vehemently submitted that the impugned judgment and order passed by
the High Court is contrary to the provisions of MRTP Act and also the
law laid down by this Court in the case of Manohar Joshi vs. State of
Maharashtra &Anr. 2012 (3) SCC 619.
6.1 The learned counsel appearing on behalf of the respective
appellants-original respondents have vehemently submitted that while
passing the impugned judgment and order the High Court has not properly
appreciated and considered the relevant provisions of MRTP Act.
6.2 The learned counsel appearing on behalf of the respective
appellants have vehemently submitted that though in the original Scheme
framed under the provisions of the NIT, 1936 there was a provision for
15 metres internal road, thereafter when the MRTP Act came to be
enacted and came into force and the Development Plan framed and
sanctioned under the provisions of the MRTP Act did not contain any
"internal road" as was there in the Scheme published under Section 45
of the NIT Act, in view of the provisions of the MRTP Act, the
Development Plan overrides the DP Scheme and, therefore, there is no
question of providing any internal road. It is submitted that the High
Court has not properly appreciated the abovesaid at all.
6.3 It is vehemently submitted by the learned counsel appearing
on behalf of the respective appellants that, as per the law laid down in
the case of Manohar Joshi (supra), the DP Plan overrides the Scheme;
and anything contrary to the DP Plan in the Scheme shall have to be
varied to bring it in line with the Development Plan sanctioned under the
provisions of MRTP Act. It is submitted that, therefore, the High Court
has materially erred in quashing and setting aside the notices of demolition
which are based upon final layout plan sanctioned on 15.05.2012 and
building permit granted on 27.06.2012, and revised on 11.12.2014, which
were as per the provisions of MRTP Act.
6.4 It is further submitted by the learned counsel appearing on
behalf of the respective appellants that the High Court has materially
erred in misreading and/or misinterpreting the judgment of this Court in
Manohar Joshi (supra) and held that the statutory obligations created
upon the NIT under Section 45 of the NIT Act to execute the Scheme to
the extent it is not in variation or modification of the proposals in the
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Final Development Plan, continues to subsist and can be enforced. It is
vehemently submitted by the learned counsel appearing for the respective
appellants that the aforesaid observations are justcontrary to the
observations made by this Court in the case of Manohar Joshi(supra).
It is submitted that in the case of Manohar Joshi (supra) this Court has
specifically observed and held that even if such a variation as directed
under Section 39 of MRTP Act does not take place, the land cannot be
put to use in any way in contradiction with the provisions in the DP Plan.
6.5 It is further submitted by the learned counsel appearing on
behalf of the respective appellants that even the aforesaid finding and
theobservation are contrary to Section 43 of the MRTP Act which provides
that once the declaration of intention to prepare a Development Plan is
presented, no development contrary thereto can be permitted.
6.6 It is further submitted by the learned counsel for the respective
appellants that the High Court has not properly appreciated and considered
the fact that, in view of the subsequent development and the widening
of the existing road, there was no necessity for internal road as provided
in the Scheme under the NIT Act. It is submitted that as such in view of
the subsequent development and widening of the existing road, when
subsequently the DP under the MRTP Act was prepared, there was no
provision for 15 metres internal road as provided earlier in the Scheme
under the NIT Act.
6.7 It is further submitted by the learned counsel that the High
Court has not properly appreciated the fact that as such in the
Development Plan prepared under the provisions of MRTP Act, which
was first prepared in the year 1976 and in the subsequent DP, there was
no provision for the internal road and, despite the same, the same was
not challenged by the original writ petitioners. It is submitted that even
initially what was challenged in the main writ petition was demolition
notices. It is submitted that even subsequently also the DP prepared
and sanctioned under the provisions of MRTP Act,which does not contain
any provision for internal road was not under challenge at all. It is
submitted that, therefore, the layout plan came to be sanctioned under
the provisions of the MRTP Act and the building permit was issued under
the provisions of MRTP Act, which came to be challenged subsequently
by way of amendment. It is submitted that in view of the relevant
provisions of the MRTP Act, the construction has to be made as per the
layout plan and the building permit granted under the provisions of MRTP
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ACT. It is submitted, that, therefore, the High Court has materially
erred in quashing and setting aside the final layout plan as well as the
building permit solely on the ground that the same is in contravention of
the Scheme published under Section 45 of the NIT Act.
6.8 It is further submitted by the learned counsel for the Appellants
that the High Court has not properly appreciated and considered the
stand of the NIT that punctuated lines in the Development Plan only
indicate the boundaries of the Scheme under the control of the NIT and
it has no more significance than this.
6.9 It is further submitted by the learned counsel that the High
Court has materially erred in observing that, in the absence of any
provisions contrary to the internal road, shown in the Development Plan,it
cannot be said that the provisions of the internal road vanishes
automatically. It is submitted that the High Court has not properly
appreciated the fact that as such the Development Plan which has been
prepared in consonance with the provisions of the MRTP Act, specifically
do not provide any internal road, which was earlier provided in the Scheme
under the NIT Act.
6.10 It is further submitted by the learned counsel that even the
Government Resolution dated 07.10.1997 specifically provided and/or
permitted to develop the landin question as per the Development Plan
and not as per the Scheme. It is submitted by learned counsel that while
issuing G.O. dated 07.10.1997,it was specifically noted that the 50 ft. (15
metres) wide road through the land is not provided under the
Development Plan. It is submitted that the aforesaid was even considered
and noted by the NIT. It is submitted that despite the above the High
Court has observed that all throughout the NIT desired to implement the
Scheme.
6.11 It is further submitted by the learned counsel that the High
Court has not properly appreciated the fact that even one consolidated
plot was allotted under the provisions of the MRTP Act and thereafter
the layout plan as per the provisions of the MRTP Act was submitted
and got sanctioned and the development permission was obtained to
carry out the construction which was granted as per the DP sanctioned
under the provisions of MRTP Act. It is submitted that the High Court
has materially erred in quashing and setting aside the demolition notices
which as such were consequent upon the sanction of the layout plan
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and the grant of the permission. It is submitted that the High Court has
materially erred in quashing and setting aside the sanctioned layout plan
as well as the development permission granted under the provisions of
the MRTP Act. It is further submitted by the learned counsel that the
High Court has, therefore, materially erred in observing and holding that
grant of permission/sanction of layout plan which was in contravention
of the Scheme under the NIT Act was a mischief in law to provide an
unfair advantage to the developers and the owners and it deprives the
facility of frontage to the tenants on the internal road.
6.12 It is further submitted by the learned counsel that the High
Court has materially erred in not appreciating the fact that only 18 tenants
filed the writ petition and were aggrieved, against which majority of the
tenants accepted the settlement/compromise before this Court. It is
stated that the appellants are ready and willing to provide the same benefit
to the original writ petitioners herein also. It is submitted, however, for
some oblique reason and/or to get some more benefits, only 18 tenants
approached the High Court and filed the writ petition.
6.13 The learned Counsel appearing on behalf of the respective
appellants have vehemently submitted that, on one hand, the High Court
has specifically observed that, in paragraph 86, the High Court has not
set aside and it is also not necessary for the High Court to set aside the
layout plan and the building permit granted by the NIT,the ultimate
observation made by the High Court in paragraph 89(2) would tantamount
to quashing and setting aside the sanctioned layout plan and even the
building permit.
6.14 Making the above submissions and relying upon the provisions
of NIT Act as well as the MRTP Act and the decision of this Court in
the case of Manohar Joshi (supra), it is requested to allow the present
appeals and quash and set aside the impugned judgment and order passed
by the High Court.
7. The present appeals are vehemently opposed by Ms. Rukhmini
Bobde, learned Advocate appearing for the writ petitioners and Ms.
Deepa Kulkarni learned Advocate also.
7.1 The learned counsel appearing on behalf of the original writ
petitioners have supported the impugned judgment and order passed by
the High Court.
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7.2 It is vehemently submitted by the learned counsel appearing
on behalf of the original writ petitioners that the impugned judgment and
order passed by this High Court is absolutely in consonance with the
provisions of the NIT Act as well as the MRTP Act, which is not required
to be interfered by this Court.
7.3 It is vehemently submitted by learned counsel for original writ
petitioners that on true interpretation of the provisions of NIT Act, more
particularly Section 45(3) and 45 of the NIT Act, the High Court has
rightly observed and held that unless and until the Scheme sanctioned
under the NIT Act is varied and/or is modified under the provisions of
the NIT Act, the Scheme shall prevail and shall have to be acted upon.
7.4 The learned counsel appearing on behalf of the original writ
petitioners have emphasised on the object and purpose to provide 15
metres internal road in the Scheme sanctioned under the NIT Act. It is
submitted that the internal road provided in the Scheme sanctioned under
Section 45 of the NIT Act was a part of Street Scheme so as to avoid
the traffic congestion. It is submitted that the use of land in question on
the date of such Scheme was initially for residential purposes with internal
road, one cinema theatre and the peripheral area being used for shops/
offices purposes. It is submitted that the object and purpose for providing
the internal road under the Scheme/Street Scheme was for creating
new or improving existing means of communication and facilities for
traffic. It is submitted that the execution of the Scheme was for (i)
providing huge commercial complex inside the Scheme area to
accommodate the tenants apart from others, (ii) widening of Mahatma
Gandhi Road and Abhyankar Road outside the Scheme area; (iii) providing
50 ft (15 metres) wide internal road along with others two roads inside
the Scheme area to ease out the traffic and removing congestion, and
(iv) to provide space open to sky for parking . It is submitted that,
therefore, once there was a Scheme/Street Scheme as sanctioned under
Section 45 of the NIT Act with specific object and purpose, merely
because in the Development Plan prepared under the MRTP Act, there
was no specific reference to the internal road, it cannot be said that the
sanctioned Scheme which was sanctioned under Section 45 of the NIT
Act is not to be implemented, even if the same is not varied or modified
under the provisions of the NIT Act.
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7.5 It is submitted that the High Court has rightly observed and
held that unless and until the Scheme is varied or is modified by the
Planning Authority, which in the present case i.e. NIT, after following
the due process under Section 46 of the NIT Act, the Scheme has to be
implemented and anything including the sanction of the layout plan and/
or grant of building permission which would be in contravention of the
Scheme under NIT Act, are illegal and contrary to the provisions of the
NIT as well as the MRTP Act, and, therefore, the High Court has
rightly quashed and set aside the demolition notices and has rightly
observed that it would be open for the NIT to issue fresh notices of
demolition, after sanctioned plan, the building permit as well as
construction, if any, carried out are brought in conformity with the Scheme
published under NIT Act on 23.06.1964.
7.6 It is vehemently submitted by the learned counsel that the
impugned judgment and order passed by the High Court is absolutely in
furtherance of the object of the Scheme published under Section 45 of
the NIT Act i.e.