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IN THE HIGH COURT OF BOMBAY
Vidarbha Heritage Society, Nagpur
Versus
State of Maharashtra
Decided on MAY 05, 2005
Whether in a given case, decision of the State is influenced by bad faith and hence a mala fide decision, will have to be decided on the facts of the case. This judgment has, therefore, no bearing on the issue in question.
Maharashtra Regional and Town Planning Act (37 of 1966) - Section 31 - Development Control Regulations for Nagpur City, Regulations 39, 34 and 3 - Deletion of structures - Decision taken by Government after considering so many evidence, reports and ancillary records - No proof of violation of any mandatory provision - Re-examination of decision not possible in all cases where there is no evidence against - Decision of deletion of some structures not found to be suffering from any illegality. - The object of preservation of heritage structures is not primary, but is collateral or ancillary to the development and this aspect has to be borne in mind while testing as to which of the structures need to be continue in the list of heritage structures. What is seen important is the development and thereafter ’also an effort to preserve the heritage structures’ while ensuing orderly development of the city. Thus, the decision of the State in deleting 49 structures is not shown by the petitioner to be so shocking and untenable and irrational to call for interference.
In view of what is clear from what is discussed herein before, present petition does not call for interference, and is liable to be dismissed, and is dismissed.
In so far as the aspect of costs is concerned, the respondents have prayed for exemplary costs. In summary enquiry, it is not possible for the Court to hold that the present petition was vexatious, more particularly when this petition is fifth in sequence and in neither of the cases, it was possible for the Court to doubt the bona fides on the part of the petitioner.
Maharashtra Regional and Town Planning Act (37 of 1966) - Sections 34 and 31 - Development Control Regulations for Nagpur City, Regulations 3.1, 34 and 39 - Civil Procedure Code, 1908, Section 34 - Awarding cost - When necessary - Development of city - Deletion of many structures - PIL dismissed as not found any illegality - Bona fides of filing petition not doubted - Whether structures are really heritage property - Regulations framed by State Government - No scope for awarding cost. - The grievance of the interveners and other respondents that the petitioner’s status as a real heritage conservationist is in doubt because the petitioner has failed to expand its activities beyond Nagpur city has gone undenied, nevertheless the steps of the petitioner have borne fruits, namely the State ultimately finalized the Regulation s, cannot be ignored. The petitioner’s effort and claims relating to 49 structures may be misplace, however, the Court does not consider that the petitioner’s effort to fight for all 49 structures is, on the face of it, mala fide. The Court may not be justified in assuming lack of bona fides on the part of the petitioner, nor it is possible to conclude in the summary enquiry that the petition is mala fide. The circumstances brought above in support of this plea present by the respondents that the petition is mala fide, cannot be construed to be strong enough requiring acceptance without enquiry. The Court is, therefore, of the view that the present is not a case where though the petitioner has failed that the petitioner should be saddled with costs, much less exemplary cost. Existence of right of judicial review follows scrutiny and issue of writ or declinement, and it would be unjust to hold that every declinement would follow the cost.
A. H. JOSHI, J.
( 1 ) HEARING of the Writ Petition No. 2340 of 2001 together with this petition has been expedited by the Honble Apex Court, as certain interlocutory orders passed by this Court were questioned before the Apex Court. This Court, therefore, by consent of parties, fixed the Writ Petitions for final disposal. Contesting parties have completed the pleadings. By consent of all the parties, the Writ Petitions are taken up for final disposal at the stage of admission hearing. Hence Rule. Rule is returnable forthwith, and is taken up for final disposal as aforesaid. Since three petitions are based on the main cause of finalization of List, retention or deletion in the List of Heritage structures/precincts, all these petitions are heard together, are, however, decided by separate Judgment and orders.
( 2 ) IN the own language of the petitioner, it has described in para 2 of petition the nature of lis prosecuted by it as follows :-"the petitioner submits that the petitioner Society is approaching this Honble Court in public interest and in the interest of proper development and preservation of the heritage and cultural and natural attributes of Nagpur City and is filing the present petition in a representative capacity and in the interest of public and specifically residents of nagpur. "it is seen that the Petitioner-Society was constituted in 1997. Brief background leading to present lis is as hereinafter :-
( 3 ) MAHARASHTRA Legislature passed the Amending Act No. 39 of 1994 amending certain definitions contained in the Maharashtra regional and Town Planning Act, 1966 and introduced some definitions. The amended definition of development reads as follows:-Section 2 : (7) development with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land for any material or structural change in any heritage building or its precinct and includes demolition of any existing building structure or erection or part of such building, structure of erection; and reclamation, redevelopment and lay-out and sub-division of any land; and to develop shall be construed accordingly; certain Clauses in Section 2 were added as Clauses (13a), (13b) and (13c ). Clauses (13b) and (13c) are quoted below:- (13b) Heritage building means a building, possessing architectural, aesthetic, historic or cultural values which is declared as heritage building by the Planning Authority in whose jurisdiction such building is situated; (13c) Heritage precinct means an area comprising heritage building or buildings and precincts thereof or related places;
( 4 ) IN furtherance to the Amending Act No. 39 of 1994, the government of Maharashtra directed, inter alia, to the Municipal corporation of Nagpur City to formulate modification proposal to include the Regulations provisions for conservation of buildings having historical importance and buildings having architectural value in the Sanctioned Development Control Regulations for the area within its jurisdiction and to submit the same to the Government along with a list of such buildings and publish the same in the government Gazette for inviting suggestions and objections from public at large and also directed constitution of Heritage conservation Committee. Municipal Corporation of Nagpur City [hereinafter referred to as the Corporation] thereafter constituted a Committee of nine members under the chairmanship of Shri B. N. Zamre, retired municipal Commissioner, on 13th August, 1997. The Corporation thereafter submitted draft Regulations along with List of Historical and Architectural Buildings, Precincts etc. . The Heritage conservation Committee had initially furnished the proposal consisting of 300 items. The said Committee and, in turn, the corporation later on, after re-considering the issue, revised the list and furnished it, which c
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