2002 Supreme(Bom) 747

IN THE HIGH COURT OF BOMBAY
V.G. Palshikar P.V. Kakade, JJ.
Raja Bahadur Motilal another .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 2591 of 2001, decided on 26-7-2002.
Advocates appeared :
V.V. Tulzapurkar Sr.A. with S.C. Dharmadhikari, S.G. Karandikar, for petitioner.
C.R. Sonawane A.G.P., for State-respondent No. 1.
R.G. Ketkar, for respondents 2 to 6.
S.G. Aney Sr.A. with V.B. Naik, for respondent No. 7.

Headnote:Constitution of India, 1950 - Article 226 - Scope of writ jurisdiction - It is a remedy available under constitution for protection of fundamental rights - It can not be utilised to resolve intra parties disputes that originate from within contractual obligations. - The writ jurisdic- tion is a remedy for protection of fundamental rights and it is not a forum for resolving intra parties disputes arising out of contractual obligations, depending upon contractual interpretations for that purpose the best Court is civil Court as created under Civil Procedure Code, 1908, about 42 years prior to creation of Article 226 of Constitution.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 45 and 149 - Permission or refusal for construction - Challenged in a civil suit - Scope of Section 149 regarding bar - Section 149 has very limited application regarding orders for grant or refusal of permission - However parties are not barred from challenging deemed permission under Section 45(5) of the Act. - What is necessary under Section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious, therefore, that a suit or legal proceeding for quashing a deemed permission under Section 45(5) is maintainable. Even otherwise under Section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by Section 149 is therefore very limited.

       Constitution of India, 1950 - Article 226 - Scope of writ jurisdiction on contractual issues - High Court should avoid taking up contractual matters - No matter even if one parts is any statutory authority - Only if there is breach of fundamental right by such contractual issue Court cannot take up matter in writ jurisdiction. - High Court should not interfere in contractual matter, even if the contracts are with the statutory authority(s). Merely because the statutory authorities are involved the contract does not become a statutory contract and even in matter of statutory contract, no interference under Article 226 is possible unless the effect of that breach of contract or violation of conditions of contract have direct bearing upon the fundamental right of a person.

       Constitution of India, 1950 - Article 226 - Maintainability of writ petition - Where one alternate remedy is available - Rare and urgent grounds if available Court can allow considering a writ petition even if alternate remedy is available. - In an exceptional case of public interest where large number of people are affected it may be that a writ petition could be entertained but the question is whether it would be a writ jurisdiction to be invoked as a matter of course even in dispute intra-parties, where there is no public interest at all or involved at all. Taking into consideration the fact that the question is even respected the courts are pressed to decide that question so that as far as Court is concerned the same principle of law that writ jurisdiction should be invoked where alternate remedy is available has to be followed.

       MRTU & PULP Act, 1971 - Section 45 - Granting or refusing to hear objectors - Section 45 does not postulate granting of or rejection of permission. - The provision of Section 45, do not contemplate hearing even to the person applying under Section 44 and the only remedy available to such person after the order is made is that, without hearing as contemplated by Section 45, it will have to be held that both the applicant and the objectors if any are entitled to hearing.

       MRTU & PULP Act, 1971 - Sections 149 and 45 - Granting of deemed permission - Suit seeking for quashing of deemed permission granted - Bar provided under Section 149 - Bar has limited scope - Conditional or unconditional permission may be granted - Quashing is also available under proper grounds. - An appeal is provided against the order granting permission or refusing permission under Section 45. There is obviously no appeal against deemed permission under Section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under Section 45(5) of MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of its acquiring finality as contemplated under Section 149.

       Maharashtra Regional and Town Planning Act, 1966 - Section 45 - Effective remedy in civil suit available - Scope of writ petition - Petitioner opposed municipal permission for construction with added TDR to respondent - Ground that petitioner could utilise his rights on his own land - Contention that this question could be divided in a civil suit and as an alternate remedy - Writ petition cannot be resorted to where alternate remedy at civil Court is available. - That takes Court to the main question of entertaining writ petition when alternate remedy by way of civil suit is available. The law on the point is settled. However since the question is of recurring nature, Court thinks to deal with the problem exhaustively with the sincere hope that hereafter the rule will be observances of the alternate remedy in appropriate forum and exception in every exceptional cases would be entertaining of writ petition directly. It will be seen that Article 226 meant for issuing writs for protection of fundamental rights and protection of such right has vital and basic, but are no mention in Part III of the Act. It must be borne in mind that the petition for issuance of a writ as contemplated by Article 226 is a remedy for protection of rights and not a forum for resolving the intra-parties disputes for which a Civil Procedure Code is created. It will also be borne in mind that Article 226 came into existence only in 1950. Prior to that civil suit was the only remedy and bar of that jurisdiction must be specific and wherever it is, it must be construed strictly. In the present case the dispute is regarding right either of the petitioner or of respondent No. 7 to use TDR on a given plot land. It certainly, therefore, is not a special circumstances requiring exercise of writ jurisdiction and deviating from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226. To hold, in the present case, that the principles of natural justice are liable to be observed while deciding an application under Section 45 of the Act is so liberally construing the provisions for the purpose of clothing with the jurisdiction under Article 226. As has been rightly observed by the Supreme Court, Court does not venture to assume jurisdiction in this case by stretching language of Section 45 beyond permissible limits.

       Maharashtra Regional and Town Planning Act, 1966 - Section 45 - Grant of permission for construction - By Municipal Corporation - Whether said permission was in violation of provisions of Town Planning Act, 1966 - Plea that permission allowing affected rights of petitioner to use his own TDR on his own land needed hearing first - Held - Permission or refusal is an administrative function - No scope for principles of natural justice - If plans are not in conformity with rules sanction cannot be granted and vice-versa.