2002 Supreme(Bom) 434

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.K. Batta J.P. Devadhar, JJ.
Satish Padmakar Takle another .... Petitioners.
Versus
Nagpur Municipal Corporation through its
Administrator others.... Respondents.
Writ Petition No. 1485 of 1984, decided on 30-4-2002.
Advocates appeared :
K.H. Deshpande with R.K. Deshpande, for petitioners.
C.S. Kaptan M.V. Samarth, for respondent No. 1.
S.K. Mishra, for respondent No. 2.
T.D. Khade, for respondent No. 3.
A.M. Gordey, for respondent No. 4.
R.R. Choudhari, for respondent No. 5.
S.V. Manohar, for respondents Nos. 7, 8, 9, 10, 12, 14, 15, 16, 18, 22, 23, 24 31.
D.N. Kukday, for respondent No. 11.
M.G. Bhangde, for respondent No. 17.

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Sections 2(15) and 30(1) - Construction on grazing ground - Already converted to non-agricultural land - Opposed on ground that it was contrary to government approved plan - Plea raised that N.I.T. did not have jurisdiction on said area - Held - Under Act of 1936 N.I.T. had jurisdiction over entire city of Nagpur - Act of 1966 did not bring any change in it - Said area reserved for public institutions - Construction of private hospitals, clinics, Mangal Karyalaya are not public institutions - All these construc- tions are illegal. - There is no dispute that before the developmental activities on the said lands commenced, the draft development plan was already published by N.I.T. and as per the provisions of the T.P. Act no development on the said plot of land could be permitted contrary to the draft development plan wherein the said lands were reserved for public institutions. Therefore, private hospital, clinic, Mangal Karyalaya, although cater to the needs of the general public, cannot be said to be public institutions. Therefore, there is no merit in the contention of the respondents that in the absence of the definition of the word public institutions in the sanctioned development plan of 1976, the same cannot be implemented. As stated, the draft development plan submitted by the N.I.T. and approved by the State Government specifically earmarked the lands of respondent No. 4 for public institutions. A controversy as to what exactly the word public institutions means would have arisen if an application for putting a public institution on the plot of respondent No. 4 was rejected by the Planning Authority on the ground that it was not a public institution. In the instant case, no such application was made to the N.I.T. which was the Planning Authority. Instead the applications were made to the N.M.C. and the N.M.C. simply granted the layout/building permits as per its building bye-laws totally ignoring the sanctioned development plan. By no stretch of imagination, the private individuals or firms putting up construction and carrying on commercial activities on the said plot can be said to be public institutions as contemplated under the sanctioned development plan.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 2(15) and 30(1) - Construction in violation of development plan approved by government - Municipal Corporation granted permission also in violation of government s development plan - Supervisory body also did not object to it - It amounts to abdication of duty under Town Planning Act - One authority cannot wash hands off, saying that other department was responsible. - Having heard the counsel on both the side and after carefully considering the material the development carried out on the plot belonging to respondent No. 4 are in gross violation of the sanctioned development plan of 1976. Under the T.P. Act, once the draft development plan was published by the N.I.T. in the year 1974 for the city of Nagpur as Planning Authority, no development could take place on the said plot contrary to draft development plan. The N.M.C. could not have granted building permits contrary to the draft development plan when the land in question was shown reserved for public institution. Even if the N.M.C. had granted building permits contrary to the sanctioned development plan dated 3.6.1976, it was obligatory on the part of the N.I.T., being the Planning Authority, to take appropriate steps so that the development of the city of Nagpur takes place in accordance with the sanctioned development plan. This gross inaction on the part of the N.I.T., tantamounts total abdication of statutory duty which was cast upon them under the T.P. Act. Having framed the development plan for the city of Nagpur and on it being sanctioned by the State Government the N.I.T., as Planning Authority, could not wash off its hands by stating that since the N.M.C. has granted building permits contrary to D.C. Regulation, it is for the N.M.C. to take remedial steps. This attitude on the part of N.I.T. shows total callousness with which the N.I.T. as Planning Authority monitored the development of the city of Nagpur under the T.P. Act.

       Nagpur Improvement Trust Act, 1936 - Section 27 - Construction in violation of development plan approved by government - Municipal Corporation also granted sanction to construc- tion - Supervisory body did not take any action to prevent it - Held - One proper authority cannot wash off its hands and say that other authority was responsible. - Having heard the counsel on both the sides and after carefully considering the material placed the development carried out on the plot belonging to respondent No. 4 are in gross violation of the sanctioned development plan of 1976. Under the T.P. Act, once the draft development plan was published by the N.I.T. in the year, 1974 for the city of Nagpur as Planning Authority, no development could take place on the said plot contrary to draft development plan. The N.M.C. could not have granted building permits contrary to the draft development plan when the land in question was shown reserved for public institution. Even if the N.M.C. had granted building permits contrary to the sanctioned development plan dated 3.6.1976, it was obligatory on the part of the N.I.T., being the Planning Authority, to take appropriate steps so that the development of the city of Nagpur takes place in accordance with the sanctioned development plan. Both, the N.M.C. and the N.I.T. failed in performing their statutory obligation cast upon them under the T.P. Act. Although under the T.P. Act, both N.M.C. and N.I.T. being local authorities could be planning authorities, in view of the notification dated 6.10.1967 issued by the State Government, it was only the N.I.T. which was empowered as Planning Authority under the T.P. Act to prepare draft development plan for the city of Nagpur and on it being sanctioned by the State Government, it was obligatory on the part of the N.I.T. to implement the same as per the sanctioned plan. In spite of the draft development plan prepared by the N.I.T. for the city of Nagpur was sanctioned by the State Government with minor modification in the year 1976, the N.M.C. totally disregarded the sanctioned development plan and purported to sanction the layout and granted building permits on plot Survey No. 471 (now 301) belonging to respondent No. 4. Even the N.I.T. being the authorised Planning Authority did not bother to check the illegal constructions which were carried out on plot bearing Survey No. 471 (now 301) in contravention of the sanctioned development plan. During the course of arguments, the counsel for N.I.T. informed that the N.I.T. supervised only the developments in such areas over which it had control and in this case since the layout/building proposal were approved by the N.M.C. , the N.I.T. has not taken any steps to monitor the building activities on the plot belonging to respondent No. 4. This gross inaction on the part of the N.I.T. , tantamounts total abdication of statutory duty which was cast upon them under the T.P. Act. Having framed the development plan for the city of Nagpur and on it being sanctioned by the State Government the N.I.T. , as Planning Authority, could not wash off its hands by stating that since the N.M.C. has granted building permits contrary to D.C. Regulation, it is for the N.M.C. to take remedial steps. This attitude on the part of N.I.T. shows total callousness with which the N.I.T. as Planning Authority monitored the development of the city of Nagpur under the T.P. Act. It is admitted by respondent No. 4 Gorakshan Sabha that the total area owned by it in Survey No. 301 is 31,363.12 sq. mtrs. The said lands were converted from the agricultural use to non-agricultural use on 15.6.1967 with certain conditions. Out of 31,363.12 sq. mtrs. land 19,522.437 sq. metrs. of land were converted into layout by the N.M.C. vide sanction order dated 28.8.1980 and 9.9.1980. It is stated that an area of 3,433,02 sq. mts. are earmarked for internal road. Thus, out of total area of 31,363.12 sq mtrs. in Survey No. 301, the respondent No. 4 is using only 8,407,663 sq. mtrs. and most of the balance lands have been given on lease to third parties. Although the lease-deeds executed by respondent No. 4 with the third parties, who are impleaded as respondents in this petition, are termed as temporary leases of eleven months duration, the terms of the lease-deed which permits uninterrupted user of the land by the lessees for a property in contravention of the clauses of the gift deed and the purpose of the trial. Besides this, the conditions granting conversion had been violated inasmuch as the layout was not got approved by N.I.T. as required thereunder. The person who had taken the plots on temporary lease basis from respondent No. 4 had approached the N.M.C. and on obtaining the building permits have put up construction on their respective plots.

       Nagpur Improvement Trust Act, 1936 - Section 27 - Construction on agricultural land already declared as non-agricultural - Objection raised that area was given on temporary lease and N.I.T. did not have jurisdiction on said area - Held - Under Act of 1936 NIT had jurisdiction on entire Nagpur area - Act of 1966 did not bring any change in it - Said plot reserved for public institutions only - Construction of buildings not of public institutions is illegal. - Even the N.I.T. being the authorised Planning Authority did not bother to check the illegal constructions which were carried out on plot bearing Survey No. 471 (now 301) in contravention of the sanctioned development plan. During the course of arguments, the counsel for N.I.T. informed that the N.I.T. supervised only the developments in such areas over which it had control and in this case since the layout/building proposal were approved by the N.M.C., the N.I.T. has not taken any steps to monitor the building activities on the plot belonging to respondent No. 4. This gross inaction on the part of the N.I.T., tantamounts total abdication of statutory duty which was cast upon them under the T.P. Act. Having framed the development plan for the city of Nagpur and on it being sanctioned by the State Government the N.I.T., as Planning Authority, could not wash off its hands by stating that since the N.M.C. has granted building permits contrary to D.C. Regulation, it is for the N.M.C. to take remedial steps. This attitude on the part of N.I.T. shows total callousness with which the N.I.T. as Planning Authority monitored the development of the city of Nagpur under the T.P. Act. It is admitted by respondent No. 4 Gorakshan Sabha that the total area owned by it in Survey No. 301 is 31,363.12 sq. mtrs. The said lands were converted from the agricultural use to non-agricultural use on 15.6.1967 with certain conditions. Out of 31.363.12 sq. mtrs. land, 19,522.437 sq. metrs. of land were converted into layout by the N.M.C. vide sanction order dated 28.8.1980 and 9.9.1980. It is stated that an area of 3,433,02 sq. mts. are earmarked for internal road. Thus, out of total area of 31,363.12 sq. mtrs. in Survey No. 301, the respondent No. 4 is using only 8,407,663 sq. mtrs. and most of the balance lands have been given on lease to third parties. Although the lease-deeds executed by respondent No. 4 with the third parties, who are impleaded as respondents in this petition, are termed as temporary leases of eleven months duration, the terms of the lease-deed which permits uninterrupted user of the land by the lessees for a period of five years clearly show that there were permanent alienation of the property in contravention of the clauses of the gift deed and the purpose of the trial. Besides this, the conditions granting conversion had been violated inasmuch as the layout was not got approved by N.I.T. as required thereunder. The persons who had taken the plots on temporary lease basis from respondent No. 4 had approached the N.M.C. and on obtaining the building permits have put up construction on their respective plots. It appears that some of the respondents had put up structures without the building permit of N.M.C. or in excess of the building permits granted and the N.M.C. has taken steps to demolish the said unauthorised structures. At the hearing of this writ petition, a chart enumerating various structures put up by the respondents/plot holders was produced before Court. From the said chart, it is seen that several buildings have been constructed on the plot of respondent No. 4 and the same are being used for private hospital, clinic, Mangal Karyalaya, automobiles, auto works, arts and plastic industries, storage godown for gas and domestic appliances and several other purposes. None of the constructions put up on the plot belonging to respondent No. 4 can be said to be public institutions as contemplated under the development plan of 1976. There is no dispute that before the developmental activities on the said lands commenced, the draft development plan was already published by N.I.T. and as per the provisions of the T.P. Act no development on the said lands commenced, the draft development plan was already published by N.I.T. and as per the provisions of the T.P. Act no development on the said plot of land could be permitted contrary to the draft development plan wherein the said lands were reserved for public institutions. Therefore, private hospital, clinic, Mangal Karyalaya and other activities carried on in the plot belonging to respondent No. 4 cannot be said to be public institutions thereunder. These respondents, although cater to the needs of the general public, cannot be said to be public institutions. Therefore, there is no merit in the contention of the respondents that in the absence of the definition of the word public institutions in the sanctioned development plan of 1976, the same cannot be implemented. As stated the draft development plan submitted by the N.I.T. and approved by the State Government specifically earmarked the lands of respondent No. 4 for public institutions. A controversy as to what exactly the word public institutions means would have arisen if an application for putting a public institution on the plot of respondent No. 4 was rejected by the Planning Authority on the ground that it was not a public institution. In the instant case, no such application was made to the N.I.T. which was the Planning Authority. Instead the applications were made to the N.M.C. and the N.M.C. simply granted the layout/building permits as per its building bye-laws totally ignoring the sanctioned development plan. By no stretch of imagination, the private individuals or firms putting up construction and carrying on commercial activities on the said plot can be said to be public institutions as contemplated under the sanctioned development plan