SUDHANSU JYOTI MUKHOPADHAYA, J. - (1.) THIS appeal has been preferred by the appellants against the judgment and order dated 30th April, 2002 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.1485 of 1984. By the impugned judgment, the High Court allowed the writ petition filed by respondent nos.5 and 6 and held as follows: (i) The building permits granted by Nagpur Municipal Corporation to the land belonging to respondent No.4 -Gorakshan Sabha, a Public Trust are unauthorized and illegal and hence buildings put up pursuant to such building permits are liable to be demolished (ii) The parties may make fresh applications seeking building permits within one month from the date of judgment in accordance with revised sanctioned development plan of 2000 -2001 and the Planning Authority shall dispose of such applications within four months. (iii) The Planning Authority shall demolish the said structures if they were found not in conformity with the revised sanctioned plan of 2000 -2001.
(2.) THE factual matrix of the case is as follows: 2.1 One Shri Dhondiba Diwadkar gifted land bearing Survey No. 471, admeasuring 18.25 acres situated at Mouza Lendhra, Tahsil, District Nagpur to respondent No. 4 - Gorakshan Sabha, a Public Trust. The said land was on the outskirts of Town of Nagpur and with the passage of time is now within the Municipal limits of City of Nagpur. 2.2 In the year 1936, the Nagpur Improvement Trust Act (For short, '1936' Act) was enacted with a view to make provisions for the improvement and expansion of the then town of Nagpur. Under the 1936 Act a Trust namely Nagpur Improvement Trust (hereinafter referred to as 'N.I.T' for short) was constituted and N.I.T was empowered to frame various improvement schemes specified u/s 27 of the 1936 Act for any area and on such scheme being sanctioned by the State Government, the N.I.T. was to implement the scheme, if necessary by acquiring the land as contemplated under the 1936 Act. 2.3 With the gradual development of "Town of Nagpur" into the "City of Nagpur", the city of Nagpur Corporation Act, 1948 (for short, 'the Corporation Act') was enacted with a view to make special legislative provisions to consolidate and amend the law relating to the Municipal affairs of the City of Nagpur. Section 2 of the Corporation Act specifically provides that the N.I.T constituted under the 1936 Act shall in the city of Nagpur continue to exercise the powers and perform duties conferred and imposed under the 1936 Act. Section 3(5) of the Corporation Act provides that all the provisions of 1936 Act shall apply to the city of Nagpur. Section 5(10) of the Corporation Act defines "City of Nagpur" means the larger urban area specified in the notification issued under Clause (2) of Article 243(Q) of the Constitution of India. With the enactment of the Corporation Act, certain amendments to the 1936 Act were carried out. As a result of amendment to section 1(2) of the Trust Act, the jurisdiction of N.I.T. was extended to the area comprised within the limits of the city and to such other area outside these limits as the State Government may declare from time to time by notification. Section 2(m) of 1936 Act which was amended in 1952 provides that all references to anything required to be done under the 1936 Act shall include anything required to be done under the Corporation Act which the N.I.T by virtue of 1936 Act has power to enforce. Thus, both the Nagpur Municipal Corporation ('N.M.C' for short) constituted under the Corporation Act and the N.I.T constituted under the 1936 Act were entrusted with the responsibility of the orderly development of the city of Nagpur. 2.4 In the year 1966, the State Government enacted the Maharashtra Regional and Town Planning Act, 1966 ('T.P. Act' for short) inter alia, with a view to make provisions for planning the development and use of lands in the regions established for that purpose and for the constitution of Regional Planning Boards thereof for the creation of new towns by the Development Authorities. Section 2(15) of the T.P. Act defines the local authority, to include inter alia, the N.M.C. under the Corporation Act, 1948 and the N.I.T. constituted under the 1936 Act, which, on being permitted by the State were entitled to exercise the powers of a Planning Authority under the T.P. Act for any area under its jurisdiction. Section 2(19) of the T.P. Act defines 'Planning Authority', as local authority which includes such other authorities as prescribed under the Act. Under the T.P. Act, it is obligatory on the part of the Planning Authority to survey a region and prepare an existing land -use map and prepare a draft development plan for the area within its jurisdiction in accordance with a regional plan or in such other manner as may be prescribed. Section 22 of the T.P. Act provides that a development plan shall generally indicate the manner in which the use of the land in the area of a Planning Authority shall be regulated, and also indicate the manner in which the development of a plan shall be carried out. It is further provided in Section 22 of the T.P. Act that the development plan in particular shall provide for proposals for allocating the use of land for the purposes, such as residential, industrial, commercial, agricultural, recreational and proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment or public assembly, museums, art galleries, religious building and Government and other public buildings as may from time to time be approved by the State Government. The T.P. Act provides for modification of the draft plan on receiving objections and suggestions from the general public. Section 31 of the T.P. Act provides for sanction to the draft development plan by the State Government and on the final development plan coming into force it is binding on the Planning Authority. Section 42 of the T.P. Act provides that on the coming into operation of any plan or plans referred to Chapter III of T.P. Act, it shall be the duty of every Planning Authority to take such steps as may be necessary to carry out the provisions of such plan or plans. Section 43 of the T.P. Act provides restriction on the development of a land after the date on which the declaration of intention to prepare a development plan for area is published in the Official Gazette. Thus, once declaration of intention to prepare draft development for any area or a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town is published in the Official Gazette, no person shall change the use of the land or carry out any development of the land without the permission in writing of the Planning Authority except as permitted under proviso appended thereto. 2.5 By a notification dated 6th October, 1967 the State Government permitted N.I.T. to exercise the powers of a Planning Authority under section 2(15) of the T.P. Act for the entire area under its jurisdiction. 2.6 In accordance with the aforesaid provisions, the N.I.T. on 12th December, 1972 published draft development plan of the city of Nagpur and the same was published in the Government Gazette on 28th December, 1972. After considering the objections and suggestions, modifications to the draft development plan were made on 20th October, 1973 and the same were published on 17th January, 1974. Subsequently the draft development plans as further modified by the N.I.T. were forwarded to the State Government for sanction under section 30(1) of the T.P. Act on 23rd October, 1974. The State Government extended the period for sanctioning such plan and ultimately with minor modification the draft development plan was approved by the State Government. Thus, the final development plan for the city of Nagpur, as sanctioned by the State Government, came into force on 3rd June, 1976.
(3.) IT appears that final development plan came into effect from 3rd June, 1976. Both N.M.C and N.I.T were granting development permission in their respective areas and later, Government noticed the problems created due to the existence of two sets of regulations in the Municipal Corporation Area. For the said reason, Deputy Secretary to the Government, Urban Development Department Mantralaya, Bombay, vide letter dated 1st January, 1993 intimated the Municipal Commissioner, N.M.C, Nagpur about Government decision that draft byelaws published by the N.M.C u/s 169 of the T.P. Act read with Section 115 and other sections of the Corporation Act, 1948 will not be operated and the N.M.C like N.I.T will follow the draft Development Control Rules and Building Byelaws prepared by the N.I.T as submitted to Government on 12th October, 1990 which are under scrutiny of Government until further orders. The aforesaid letter being relevant reads as follows: - JUDGEMENT_26_LAWS(SC)2_2015.htm Between 1973 and 1983 lands were leased to the appellants by respondent no.4 and building plans were sanctioned by the N.M.C. The N.M.C was empowered to issue NOC during the said period as evident from letter dated 15th September, 1981 written by Circle Engineer (P1), N.I.T to Shri Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted below: JUDGEMENT_26_LAWS(SC)2_12015.htm From the aforesaid letter, it is clear that inspite of draft Development Plan which was published on 25th December, 1972 followed by final Draft Plan on 3rd June, 1976, the N.I.T abdicated its authority and delegated it in favour of N.M.C by stating that N.M.C is empowered to issue NOC in conformity with proposals of Development Plan of Nagpur. ;