Sujala Yeshwant Nitsure and others vs Municipal Corporation of City of Pune and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1995 Supreme(Bom) 447

IN THE HIGH COURT OF BOMBAY
M.S. Rane, J.
Smt. Sujala Yeshwant Nitsure and others....... Appellants.
Versus
The Municipal Corporation of City of Pune and others....... Respondents.
Second Appeal No. 538 of 1982, decided on 10/11-10-1995.
Advocates appeared :
M.A. Rane, for the appellants.
R.G. Ketkar, for the respondent No. 1.
Virendra V. Tulzapurkar, for respondents 2 to 11.

Headnote:
The permission granted by the Municipal Commissioner of the Municipal Corporation, Pune to the plot holders for the construction of Mangal Karyalaya does not amount to any essential or material changes so as to effect or substantially modify the development plan or Town Planning Scheme itself.
Fact of the Case:

The plaintiffs filed a suit in their representative capacity and on behalf of the residents of Karve Road, Prabhat Road area, against the Municipal Corporation of City of Pune (hereinafter referred to as the Municipal Corporation, Pune). The plaintiffs alleged that the permission granted by the Municipal Corporation Pune to the plot holders for the construction of Mangal Karyalaya on the said plot was illegal, ultra-vires, and they claimed injunction restraining the plot holders from proceeding with the construction work and also for demolition of the construction work executed by them.
Finding of the Court:

The Court held that the permission granted by the Municipal Commissioner of the Municipal Corporation, Pune to the plot holders for the construction of Mangal Karyalaya does not amount to any essential or material changes so as to effect or substantially modify the development plan or Town Planning Scheme itself. The Court further held that under Regulation No. 247-A the Commissioner was reasonably empowered to grant such concession with a view to remove hardship.
Issues: 1. Whether the plaintiffs prove that the suit is in representative capacity. 2. If not, whether the suit is maintainable? 3. Whether plaintiffs prove that regulations Nos. 5 and 6 under Town Planning Scheme No. 1 are applicable in respect of a Mangal Karyalaya. 4. Whether defendants Nos. 2 to 11 prove that Regulations Nos. 5 and 6 are illegal, ultra-vires and void. 5. Whether plaintiffs prove that Mangal Karyalaya falls in the category of "service industry" or "industry". 6. Whether Defendant the Mangal Karyalaya is a residential building. 7. Whether plaintiffs prove that Mangal Karyalaya is a permanent nuisance to the neighbours and especially considering the various conditions imposed by the defendant No. 1 on defendants Nos. 2 to 11. 8. Do plaintiffs prove that defendants Nos. 2 to 11 have obtained permission in collusion with defendant No. 1 as pleaded in para 15 of the plaint? 8A. Do plaintiffs prove that permission granted by defendant No. 1 to defendant Nos. 2 to 11 is illegal, ab initio void and is granted by usurping powers which the defendant No. 1 did not possess ? If so, whether building in consequence deserves to be demolished as pleaded in amended para 15 of plaint ? 9. Whether plaintiffs prove that the Commissioner acted mala fide in granting permission to construct a Mangal Karyalaya to defendants Nos. 2 to 11. 10. Whether plaintiffs are entitled to an injunction when defendants Nos. 2 to 11 are constructing Mangal Karyalaya on their own plot and as per permission from competent authority the Poona Municipal Corporation. 11. Whether the defendants prove that the suit of the plaintiffs is mala fide for the reasons given in para 10 of the written statement, of the defendants Nos. 2 to 11. 12. Whether the suit is barred by limitation. 13. Whether the suit is not maintainable under section 486 of the Bombay Provincial Municipal Corporation Act. 14. Whether notice under section 487 of the Bombay Provincial Municipal Corporation Act is necessary. 15. If yes, whether the suit is maintainable against the defendant No. 1. without giving such notice? 16. Whether the suit is barred by acquiescence and laches. 17. Whether the plaintiffs suit is barred by estoppel. 17A. Whether this Court has no jurisdiction to entertain and try this suit. This Court has jurisdiction to try this Suit.
Ratio Decidendi: The Court held that the permission granted by the Municipal Commissioner of the Municipal Corporation, Pune to the plot holders for the construction of Mangal Karyalaya does not amount to any essential or material changes so as to effect or substantially modify the development plan or Town Planning Scheme itself. The Court further held that under Regulation No. 247-A the Commissioner was reasonably empowered to grant such concession with a view to remove hardship.
Final Decision: The Court dismissed the appeal and confirmed the order of the 1st Appellate Court. However, there shall not be order as to the costs.

Judgement Key Points

Case Summary

This is Second Appeal No. 538 of 1982 in the High Court of Bombay, decided on 10/11-10-1995 by M.S. Rane, J., arising from Regular Civil Suit No. 2171 of 1977. [1995 Supreme(Bom) 447][1996 2 BomCR 503] (!) (!)
Appellants (original plaintiffs) are residents of Karve Road, Prabhat Road area, suing in representative capacity against Municipal Corporation of Pune (respondent No. 1) and plot holders (respondents 2-11) owning final plot No. 35/12 in T.P.S. No. 1. (!) [4000084120001][4000084120003]
Suit sought declaration that permission granted by Municipal Commissioner to plot holders for constructing Mangal Karyalaya (community hall) on residential plot was illegal/ultra vires, injunction against construction/use, and demolition. [4000084120001][4000084120007]
Plot falls under Town Planning Scheme No. 1 (Final Varied), sanctioned in 1939 under Bombay Town Planning Act 1915, saved under Maharashtra Regional and Town Planning Act 1966 (MRTP Act); reserved exclusively for residential use under unamended Scheme Regulations 5 & 6. [4000084120003][4000084120005][4000084120037]
Plot holders applied for permission on 25-3-1974; objections raised by plaintiffs on 17-8-1974; initial permission/commencement certificate on 19-8-1976 (valid 1 year); extension granted 10-8-1977 with condition no loudspeakers; construction completed 16-5-1978; completion certificate issued. (!)
Trial court decreed suit for plaintiffs on issues including applicability of unamended Reg. 5 & 6, permission illegal ab initio, mala fides/collusion, no nuisance found but permission void warranting demolition. [4000084120015][4000084120016][p_19 to p_56]
First Appellate Court (Civil Appeal 412/1979) reversed trial court, dismissed suit: permission valid considering draft amendment to Reg. 6(d) permitting Mangal Karyalaya (proposed 1973, approved by Arbitrator/Committees, though not Govt-sanctioned till 1979); Reg. 247-A allowed discretion to relax for hardship/public interest (no Mangal Karyalaya in locality); protected under MRTP ss.147,149. [4000084120018][4000084120019]
High Court framed points: suit bar u/s 149 MRTP; s.46 compliance; efficacy of regulations; draft Reg. 6(d); Reg. 247-A scope; mala fides; relief. [p_75 to p_82][4000084120025]
MRTP Act is complete code for planning/development; Scheme/Development Regulations part of statute u/s 86(3); finality to orders u/s 149 unless ultra vires/bad faith; protection u/s 147 for good faith actions. [4000084120022] (!) (!) (!) [4000084120026 to 4000084120035]
Permission granted under Ch.IV MRTP (ss.44-46): due regard to draft/final plans/proposals; draft Reg. 6(d) (min. 1/4 acre plot, 40ft road, 30ft setback, premium Rs.1/sqft) considered validly as approved by Arbitrator/Committees. [4000084120042] (!) [4000084120049 to 4000084120051]
Development Regulations (inc. Reg. 208, 247-A) apply supplementally to Scheme Regulations for implementation; Reg. 247-A permits modification of "any such regulation" to remove grave hardship (not limited to Development Regs., applicable to Scheme Regs.). [4000084120043] (!) (!) [4000084120044 to 4000084120046]
Relaxations granted: plot shortfall 390sqft (10,502 vs. 10,890sqft min., post-setback 9,752sqft); 30ft vs. 40ft road; individual case, not general/essential change to scheme/plan; public need (no local Mangal Karyalaya); conditions imposed (no loudspeakers); processed over 2yrs by 2 Commissioners/Arbitrator. [4000084120052][4000084120059 to 4000084120062] (!)
Relaxations do not materially modify scheme/plan or exceed discretion u/Reg.247-A (distinguished from general relaxations); action in good faith per s.46, protected u/ss.147,149 barring suit. [4000084120054 to 4000084120058] (!) (!) [4000084120063 to 4000084120065]
No mala fides/collusion (processed by multiple officers); no nuisance pressed; laches/acquiescence (construction complete/functioning since 1978, no interim relief sought); plaintiffs not seeking demolition. [4000084120066 to 4000084120068][4000084120067]
Appeal dismissed confirming first appellate decree; no costs. [4000084120069][4000084120070] (!)

Ratio Decidendi

Permission for Mangal Karyalaya via relaxations u/Reg.247-A does not amount to essential/material changes substantially modifying development plan/Town Planning Scheme; Commissioner empowered to grant concessions to remove hardship/public interest in individual cases. (!) (!) [Final Decision]

JUDGMENT

M.S. RANE, J.:---The appellants in this appeal are the original plaintiffs in the Regular Civil Suit No. 2171 of 1977 on the file of Civil Judge, Junior Division, Pune (hereinafter they will be referred to as the plaintiffs). The 1st respondent is the Municipal Corporation of City of Pune (hereinafter referred to as the Municipal Corporation, Pune). The respondent Nos. 2 to 11 are owners of a plot of land being final plot No. 35/12 in T.P.S. No. 1 (hereinafter respondent 2 to 11 will be referred to as the plot holders and said final plot No. 35/12 as the said plot for brevitys sake).

2. The plaintiffs filed the suit in their representative capacity and on behalf of the residents of Karve Road, Prabhat Road area, against the Municipal Corporation of Pune and the plot holders inter-alia claiming declaration and injunction to the effect that the permission granted by the Municipal Corporation Pune to the plot holders for the construction of Mangal Karyalaya on the said plot was illegal, ultra-vires, and they claimed injunction restraining the plot holders from proceeding with the construction work and also for demolition of the construction work executed by them. The trial Court by his Judgment and decree dated 25th April, 1979 decreed the suit of the plaintiffs.

3. The plot holders being aggrieved by the said decree of the trial Court filed appeal being Civil Appeal No. 412 of 1979 in the District Court of Extra Joint Judge, Pune, challenging the said decree. The 1st Appellate Court by his Judgment dated 30th January, 1982, allowed the appeal of the plot holders by setting aside the decree passed and ordered the dismissal of the suit of the plaintiffs. The plaintiffs have filed the Second Appeal herein against the said order and judgment dated 30th January, 1982, of the 1st Appellate Court.

4. The plaintiffs are the residents of Erandavane, Pune and holders of a property comprising of house situated at Karve Road, Prabhat Road in the limit of the Municipal Corporation, Pune. The plot holders also own the property compromising of Plot No. 35/12 which is nearby and adjoining to the property of the plaintiffs which they had purchased in or about February 1974. Both the plots fall under the Town Planning Scheme No. 1 framed by the Municipal Corporation, Pune under the provisions of Town Planning Act. According to the plaintiffs their plot as also the plot of the plot holders under the Town Planning Scheme is exclusively reserved for the residential purpose. The user of the said plot by the plot holders for any other purpose other than the residences, for that matter, for Mangal Karyalaya will not be permissible under the Town Planning Scheme. The plaintiffs assert that although under the provisions of the Town Planning Act and the Rules and Regulations framed thereunder as also the final development plan and final scheme sanctioned the said plot being exclusively reserved and ear-marked for the residential purpose, the Municipal Corporation, Pune have allowed the same to be used for the construction of Mangal Karyalaya by the plot holders which is illegal and ultra-vires. This is a crux of the controversy in the matter herein.

5. It is contention of the plaintiffs that notwithstanding the specific reservation of the said plot for the purpose of residence in the development plan and Town Planning Scheme, the 1st respondent - Municipal Corporation, Pune allowed the plot holders to construct a Mangal Karyalaya on the said plot in total defiance and violation of the provisions as contained in the Town Planning Act as also development plan and Town Planning Scheme. It is the case of the plaintiffs that such permission was granted by the Municipal Corporation, Pune to the plot holders despite their objections. According to the plaintiffs, therefore, the permission granted by the Municipal Corporation, Pune allowing the plot holders to construct Mangal Karyalaya on the plot is in excess of the power and authority vested upon it by

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