Nagpur Improvement Trust & Ors. vs M/s Bombaywala & Ors.

Maharashtra Regional Town Planning Act, 1966 – s.39 – Modification of scheme deleting 15 metres wide road – Permissibility – Held: s.39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act – In the transferred case in question, when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001, the same was after following the due procedure and the same was approved and sanctioned by the State Government – Thereafter, when the Scheme to the extent in conflict with the DP Plan was modified as mandated under s.39 of the MRTP Act, the same cannot be said to be illegal – Therefore, when s.39 MRTP Act and the provisions of the NIT Act are read harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road, which is in line with the Development Plan sanctioned under the MRTP Act, cannot be said to be illegal – Nagpur Improvement Trust Act, 1936 – s.45. Disposing of the matters, the Court

HELD: 1. The Final Development Plan of 1976 did not contain the 15 metres internal road from the land in question as against the 15 metres internal road provided in the final Scheme of 1964. Thus the Scheme of 1964 prepared and sanctioned the provisions of the NIT Act to the extent of providing 15 metres internal road can be said to be not in consonance with the Development Plan sanctioned under the provisions of the MRTP Act. Section 59 of the MRTP Act provides for preparation of the Scheme under the MRTP Act, which specifically provides that the Planning Authority may prepare one or more Town Planning Scheme for the area within its jurisdiction or any part thereof for the purpose of implementing the proposals in the Final Development Plan. Section 59 of the MRTP Act is relevant as in the present case, the Scheme which provides 15 metres internal road was prepared and sanctioned under the provisions of the NIT Act and prior to the enactment of MRTP Act and, therefore, Section 39 read with Section 92 shall be applicable. A conjoint reading of Sections 39, 43, 46 and even Section 59 of the MRTP Act show that the Development Plans prepared and sanctioned under the provisions of the MRTP Act shall prevail. Therefore, there cannot be any development and/or construction permitted contrary to the Development Plan prepared and sanctioned under the provisions of the MRTP Act, though the Scheme prepared and sanctioned under Section 45 of the NIT Act may permit such development and/or construction. [Paras 11.7-11.9][1022-D-E, GH; 1022-A-B]

2. Though there was a provision for internal 15 metres road in the Scheme under the NIT Act which was sanctioned in the year 1964, thereafter much development had taken place and there were changed circumstances. In the Development Plan/revised Development Plan, the existing road came to be widened from 12 metres to 24 metres and, therefore, when the DP was prepared and sanctioned under the MRTP Act, there was no proposal for 15 metres internal wide road. The Development Plan prepared and sanctioned under the MRTP Act would override the TP Scheme. There cannot be any development and/or construction permitted contrary to the DP Plan under the MRTP Act. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained. [Para 11.11][1024D-F]

3. The layout plans are sanctioned and the building permit has been granted absolutely in consonance with the DP sanctioned under the MRTP Act. The demolition notices were received pursuant to and in furtherance of the building permit and so as to enable the original land owners/developers to put up the construction as per the layout plan sanctioned and the building permit granted. Therefore, the High Court has erred in holding that the action of the NIT was mischief in law. The dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants. Now, only

18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers. [Paras 11.13, 11.15][1025B-C, F-H; 1026-A-B]

4. TRANSFERRED CASE (C) No.23/2018:

Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act. When the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001, the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road, which would now be in line with the Development Plan sanctioned under the MRTP Act, the same cannot be said to be illegal warranting interference of this Court. [Para 12.1][1027-C-F]

Manohar Joshi v. State of Maharashtra & Anr. (2012)

3 SCC 619; Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka (1991) 2 SCC

604 : [1991] 1 SCR 974 – relied on.