2009 Supreme(Bom) 1736

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
The City of Nagpur Corporation Through Its Municipal Commissioner Civil Lines
Versus
Indian Gymkhana A Registered society duly registered under the Societies Registration Act
SECOND APPEAL NO.118 of 1996
Decided on : 16-12-2009

Headnote:City of Nagpur Corporation Act, 1948 - Sections 348(5) and 384 - Suit for declaration and permanent injunction - Filed by respondent against appellant - Decreed by trial Court - Appeal against - Dismissed - Second appeal - Substantial question of law - Revoking or withdrawing sanctioned building plan under Section 348(5) of Act - Held - Courts below erroneously held Corporation cannot revoke building plan for any reason under Section 348(5) of Act - Commissioner can revoke or suspend any licence or written permission granted under any Rules or Bye-laws made therein - Notice under Section 384 of Act not necessary before institution of suit against apprehended injury - Impugned orders of Courts below set aside - Decree modified - Corporation, intending to revoke or withdraw building permit must afford opportunity of hearing to respondents - Second appeal disposed off. - Considering the provisions of General Clauses Act pointed out before the Court as also ruling in State of U.P. v. Maharaja Dharmander Prasad Singh (supra) it does appears that grant of permission does not result in exhaustion of the power itself but comprehends incidental or supplemental power to revoke or cancel the permission granted. At the most the plaintiff can insist on the compliance of the principles of natural justice before a drastic action of revocation of building plan is to be adopted by the Municipal Corporation against the plaintiff for construction made prior to conditions of the building permission. Therefore, the Courts below fell in error in law in coming to the conclusion that the Municipal Corporation cannot revoke the building plan for any reason and in any circumstance whatsoever. The declaration in blanket terms prohibiting the Municipal Corporation from using its statutory powers in accordance with law to grant, revoke or cancel the building permission would have the effect virtually to nullify powers which are available statutorily to the Commissioner of Municipal Corporation. Counsel Mr. Kaptan rightly pointed out that statutorily under Section 348(5) of the Act of 1948 the Commissioner can revoke or suspend any licence or written permission granted under the Act of 1958 or under any Rules or bye laws made therein. For the reasons stated herein above, the first substantial question of law must be answered in the affirmative.

       The next substantial question of law formulated is as to whether in a suit for permanent injunction to restrain the Municipal Corporation from revoking the plan is maintainable counsel, contended that the City of Nagpur Corporation is a ’public authority" statutorily empowered to perform certain acts or functions in the interest of the planned development of city of Nagpur and also to do certain acts in the public interest as also competent Local Authority. He submitted that in any proposed or intended suit is prohibit the Municipal Corporation from doing certain act, suit ought to have been held not maintainable. On behalf of the respondent it is contended that Municipal Corporation is not entitled to revoke the permit unless it has been obtained by fraud, misrepresentation or collusion etc which was not proved in the case and as such the plaintiff was justified in order to protect their legal right to occupy the land on leasehold basis. The remedy by way of suit was available to the plaintiff and suit was therefore maintainable. Having examined this contention Courts think right to file a suit to protect one’s legal right and to pray for incidental or consequential reliefs is permissible in view of the provisions of Specific Relief Act, therefore it must be held that suit was maintainable, consequently, the question of law No. 2 must be answered in the affirmative.

       Considering the nature of the present suit and reliefs prayed for in the nature of prevention or intended act on behalf of the Municipal Corporation in other words it was not suit instituted in respect of any act done but apprehended to be done by or on behalf of the Municipal Corporation, therefore, the suit in the facts and circumstances of this case, pre-suit statutory notice as required under Section 384 of the Act 1948 was not necessary before the institution of the suit against an apprehended injury. The substantial question is answered accordingly.

       In view of the answer in respect of substantial question of law No. (i) having held that the Courts below were in error in declaration that the Municipal Corporation can not revoke vary rescind any in any circumstance whatsoever, think the impugned judgments and orders passed by the first Appellate Court and trial Court are required to be set aside. The same are set aside. The degree stands modified as under : In the event the Nagpur City Municipal Corporation is intending to revoke or cancel building permit No. 232/ EPR/3 dated 1.8.1988 an opportunity of hearing to the plaintiff be granted before taking drastic decision for revocation/ cancellation or withdrawal of building permit dated 1.8.1988.

       There shall be no order as to costs in the facts and circumstances of the case. Second appeal is disposed of accordingly.