2010 Supreme(Bom) 1619

In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & P.B. VARALE
Atmaram & Others
Versus
Nagpur Municipal Corporation & Another
WRIT PETITION Nos. 1980, 1984 & 1989 OF 2010
Decided on : 19-11-2010

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Sections 51 and 56-Scope and applicability of-Powers of Planning Authority-Section 51 enables Planning Authority to either revoke or modify any permission for development granted or deemed to be granted-Section 56 enables Planning Authority to stop its user or regulate it after development is over-Section 56, neither gives an option to Planning Authority to force citizen to sell nor confers power on it to buy or acquire designated land and construct a public road on it.-Section 51 enables planning authority to either revoke or modify any permission for development whether granted or deemed to be granted with same objective as envisaged in Section 56. Thus Section 51 is power to stop development in progress while Section 56 is power to stop its user or regulate it after development is over. Section 56(5) is important indication about the nature or scope of power under Section 56. If because of compliance with the directions as issued, the holder finds that land becomes reasonably incapable of beneficial use, he can serve a purchase notice upon the State Government as per Section 49 of MRTP Act. Thus only when land cannot be reasonably used by the person after such compliance, question of purchase by State or planning authority crops up. Option whether to sale or not to sale is with owner and not with planning authority. Words "incapable of reasonably beneficial use" import an element of objectivity to some extent, thereby enabling State or planning authority to refuse to purchase. Section 56, however, does not give planning authority an option to force citizen to sell. It does not confer on it power to buy or acquire the designated land and construct a public road on it. It other words, Section 56 does not contain any machinery for vesting of title in respondents to land on which widening work is to be done.

       Maharashtra Regional and Town Planning Act, 1966 - Section 56-Applicability of-If title and possession of land not necessarily required by planning authority-And compliance with directions either of discontinuance or fulfilment of conditions imposed or alteration/removal of structure is enough-Section 56 only then got attracted.-Section 56 is attracted only when planning authority does not need the title and possession of land and compliance with directions either of discontinuance or fulfilment of conditions imposed or alteration/removal of structure is enough.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 66, 83, 88, 126 and 129-Power of planning authority-Very wide and extraordinary-To meet different situations whether foreseen or unpredictable-Paramount importance in scheme under Act is Public Interest-Step directed to be expedient in interest of proper planning or amenities.-Very wide and extraordinary power is conferred on planning authority to meet different situations whether foreseen or unpredictable. The public interest is of paramount importance in the scheme and step directed has to be expedient in the interest of proper planning or amenities.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 66, 83, 88, 126 and 129- Power under Section 129-Exercise of-Town planning-Possession of lands-Lands reserved/designated for public purpose in Regional Plan/Development Plan-Planning authority can take possession of such lands in case of urgency-Power under Section 129 of Act can be exercised after publication of notification under Section 126(2) of Act by making application to State Government, satisfying state about public interest behind such urgency.-Town planning is very systematic activity designed scientifically in the interest of consolidated development to suit needs of the society. The legislation expects region to grow in pre-designed manner and the general society then develops around it which in turn results in putting optimum pressure on natural resources and sustained ecological balance. When the planning authority has to carry out the works like road widening or of public utility in a city, acquiring title or possession of plots of citizens may become necessary. When such development i.e., designated purpose affects land or plots of several citizens, a consolidated exercise is prescribed in MRTP Act. Chapter V stipulates democratic procedure therefor and it balances interest of an individual with public interest. Similarly, procedure therein also attempts to match conflicting interests of individuals in such matters. Provisions permitting amalgamation of plots, of reconstitution of plots, for enabling joint ownership are already mentioned above. Views on said mechanism and construing Chapter V as a complete code not permitting recourse to Section 126, except in relation to lands reserved for public utility are also noted. Section 66 there contains a provision for compensation for change of user. It states that area or building ceases to be available for any other use except one specified in final scheme within such time as stipulated in final scheme. Person affected by such bar is entitled to compensation as determined by the arbitrator. Section 83 therein enables planning authority to take possession in advance for forthwith undertaking development work by applying to State Government through arbitrator. If State Government is satisfied it may authorise arbitrator by notification in Official Gazette to take possession. Chapter VII dealing with land requisition has Section 129 enabling respondents to take possession of lands reserved or designated for public purpose in Regional Plan or Development Plan, in case of urgency. Power can be exercised after publication of notification under Section 126(2) of MRTP Act by making application to State Government and State needs to be satisfied about public interest behind such urgency.

       Constitution of India - Articles 14, 21, 226 and 300-A-Writ petition-Maintainability of-Availability of alternative remedy-Violation of Articles, 14, 21 and 300-A of Constitution-An alternate remedy not operate as a bar-Writ Court may exercise its discretionary jurisdiction-Writ petition maintainable.-Hon’ble Apex Court reiterated that the rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ Court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely-(i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.

       Division Bench judgment of Hon’ble Allahabad High Court in Shri Nath Educational Society, Sirsa v. State of U.P., also reveals that alternate remedy is no bar when breach is of Article 14 or Article 300-A. Here also there is view of single Judge of this Court which binds the appellate authority. The impugned directions, if complied with, deprive petitioners of possession and title to commercial properties. Effort before is to demonstrate violation of Articles 14, 21 and 300-A of the Constitution of India. Therefore do not find any substance in preliminary objection about availability of alternate remedy to the petitioners.