The argument on behalf of the respondent is that the
NIT no longer can claim to function as planning authority
except in the seven cases stated itemwise in the State
Government Notification. (supra). Substantive provision
stated cannot be construed as retrospective in nature unless
the provision itself indicates the same. Such decision by the
State Government is in the larger public interest which has
disabled the NIT subject to exceptional seven cases
specifically stated in the Notification and generally
constituted the Nagpur Municipal Corporation as the
“planning authority” for the city of Nagpur. The Notification
must be interpreted as prospective with effect from the date
of issuance of the Notification in the Official Gazette of the
State of Maharashtra. The Nagpur Municipal Corporation so
constituted as “Planning authority” with plenary power in
the larger public interest would perform its statutory duty to
ensure the finalisation of the development plan of the
Nagpur City in organised manner primarily for the benefit of
the public. Previous action on the part of the earlier
planning authority is not totally meaningless merely because
there is change of the planning authority. New planning
authority/NMC can undertake and perform its statutory
duties as contemplated under the Law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.558 OF 2007
Nagpur Improvement Trust,
// VERSUS //
Kishorchand s/o. Fulchand
Sakaria,
CORAM : A.P
.BHANGALE, J.
DATE : 29.4.2014.
This appeal is filed by the appellant/Nagpur
Improvement Trust (Original Defendant)(hereinafter for
brevity referred to as “ the NIT”), against the Judgment and
Order, dated 16.1.2006 passed by the 3rd Additional
District Judge, Nagpur in Regular Civil Appeal No. 111 of
1999, which was disposed of on the ground that it became
infructuous. The said appeal arose from the Judgment and
Order, dated 19.12.1998 passed by the Joint Civil
Judge(J.D.), Nagpur in Regular Civil Suit No.1699 of 1996.
The suit was decreed for declaration that the notice No. DO
(West)251, dated 18.6.1996 and notice No.DO (west)252,
dated 4.7.1996 issued by the defendants to the plaintiff are
illegal, null and void.
2.
Brief facts are
:
That the respondent/plaintiff claimed that he is owner
of the ground floor of the two storied house no. 569, Nazul
plot no.106/5, City Survey no. 405/1 in ward no.3,
Joshiwadi, Sitabuldi, Nagpur. The plaintiff also claimed that
he was in possession of the first floor and one room situated
on the second floor. The respondent (Original plaintiff) had
filed the suit for declaration and permanent injunction
against the then Planning Authority/the NIT challenging the
notices dated 18.6.1996 and 4.7.1996 issued by the
appellant/the NIT calling upon the plaintiff that the
construction carried out by the plaintiff is unauthorised and
liable to be removed or demolished. The notices were
challenged as illegal and mala fide. Respondent/plaintiff
had carried out the repairs which were required in respect of
the premise occupied by him after obtaining the sanction
from the Nagpur Municipal Corporation (hereinafter
referred to as “the NMC” ) to carry out the minor repairs.
The appellant (Original defendant) had carried out the
inspection and then issued the notices which were impugned
by the plaintiff as illegal and void. The trial Court accepted
case of the plaintiff and declared the notices impugned as
illegal.
The Government of Maharashtra had permitted the
3.
Nagpur improvement Trust, (NIT) being a local authority to
exercise powers under the Maharashtra Regional and Town
Planning Act. 1966 (hereinafter referred as “ the MRTP Act”)
as the planning authority under the said Act, pursuant to the
notification issued by the Government in Urban
Development, Public Health and Housing Department
bearing no. TPS246719866M, dated 6th October 1967.
State of Maharashtra by notification bearing no. TPS. 2401
855CR76UD9 issued on dated 27th February, 2002 and
published on 11th March, 2002 in the Official Gazette
decided to permit the Nagpur Municipal Corporation
(NMC) to exercise the power of a planning authority under
the MATP Act in the entire area under its jurisdiction except
with limited number of seven exceptions namely :
(a) 1. Eastern Industrial area street scheme
covering area of H320.60 R
2. Itwara Station Road street Scheme
H 4.77R
H6.15R
4. Abhyankar Road & Buti Mahal street scheme
3. Sitabuldi (west) improvement scheme
H3.24R
5. Wathoda extension Housing accommodation
Scheme (New scheme) H170.00R
6. Shivangaon –Jaitala Township (New scheme)
H 257 .00R
7. Green Belt control scheme
H 6447.00R
Total in Hectares : 7208.76 R
The State Government of Maharashtra notified that
notwithstanding provision (a) above, in areas which come
under the purview of Nagpur Municipal Corporation as
planning authority, NIT will not be required to secure
development permission from the Nagpur Municipal
Corporation with regard to developments undertaken by it
in its capacity as development agency, and for limited
purpose, it shall function as planning authority for such
developments. This notification became operative since it
was published by notification in the official Gazette on 11
4.
March 2002.
The appeal was admitted upon the substantial
question of law stated as under :
Whether pending appeal filed by the Nagpur
Improvement Trust becomes infructuous in view of
the notification issued by the Government of
Maharashtra on 27.2.2002 transferring the
jurisdiction of certain schemes to the other planning
authority i.e. Nagpur Municipal Corporation?
5.
The trial court findings were that the notices issued by
the NIT were illegal and malafide.
6.
The first appellate court’s findings were challenged on
the ground that it erred to presume that the first appeal
became infructuous in view of the subject notification.
On behalf of the appellant, it is submitted that the suit
7.
itself was not tenable for want of notice required under
Section 115 of the Nagpur improvement Trust Act and
therefore the suit ought to have been dismissed by the trial
Court.
On behalf of the respondent (Original Plaintiff), it is
8.
submitted that the notices impugned were declared as
illegal by the trial Court and the first Appellate Court by the
reasoned Judgment held that the appeal became infructuous
since the NIT has no longer remained the planning
authority in connection with suit property
9.
Legal position cannot be disputed in view of the
judicial precedents on this subject that if the presuit
statutory notice is required to be issued and served by the
mandate of law before the institution of the civil suit it has
to be so issued and served upon the opposite party, unless
any exceptional ground is made out as an valid acceptable
excuse for noncompliance of the mandatory provision in the
fact and circumstances of the particular case. The valid
excuse may be upon the plea of the “deemed waiver” on the
part of the opposite party. When the suit is instituted for
apprehended cause of action i.e. threatened action of
Demolition, in such a case, the plaintiff not being able to
issue and serve the presuit statutory notice, as required
under the law is compelled in the facts and circumstances to
approach the Civil Court. In a given case, the plaintiff may
plead such exception requiring him to immediately
approach the Civil Court after having received the notice
from the planning/Municipal authority apprehending the
urgent demolition of the suit property; when notice of
urgent and likely demolition is given by the Municipal
Authority or planning authority, public authority as the case
may be, it leaves no sufficient notice period for the
plaintiff to wait until the expiry of the statutory notice
period for the issuance and service of the presuit statutory
notice according to law as he is apprehending the urgent
action by or on behalf of the public/local planning authority
to demolish the suit house / structure. The suit on the basis
of an imminent apprehension of the demolition/loss of suit
house or structure so as to restrain the local planning
authority from demolishing the suit house/structure has
been held tenable in such a “Quia timet” injunction suits
wherein the plaintiff had no any period of time left for to
issue and serve the presuit statutory notice and then to wait
until the expiry of the statutory notice period. “Quia timet”
injunction is granted in a suit for injunction against the
defendant in respect of an act threatened but not yet
committed. In such a suit, it cannot be possible for the
plaintiff to issue and serve presuit statutory notice as
required under law as act is not yet committed, though
threatened. If the plaintiff could not have issued and served
written pre suit statutory notice and could not have waited
as required under the law, the civil court may hold the suit
tenable on the principle of the “deemed waiver” by the
defendant of the presuit statutory notice as the
defendants by their conduct of threatening action of early
demolition prevented the plaintiff from issuing and
serving presuit statutory written notice as required by law.
There is no substantial question of law requiring answer in
10.
this regard. The relevant law is clear.
Section 55 of the Maharashtra Regional & Town
Planning Act, 1966 reads thus :
55. Removal or discontinuance of unauthorized
temporary development summarily :
(1) Notwithstanding anything hereinbefore
contained in this Chapter, where any person has
carried out any development of a temporary
nature unauthorisedly as indicated in subsection
(1) of section 52, the Planning Authority may
by an order in writing direct that person to
remove any structure or work erected, or
discontinue the use of land made,unauthorisedly
as aforesaid, within fifteen days of the receipt of
the order; and if thereafter, the person does not
comply with the order within the said period, the
Planning Authority may request the District
Magistrate or the Commissioner of Police, as the
case may be, [or authorize any of its officers or
servants] to have such work summarily removed
or such use summarily discontinued without any
development unauthorisedly made again, shall be
similarly removed or discontinued summarily
notice as directed in the order, and any
without making any order as aforesaid.
(2) The decision of the Planning Authority on the
question of what is development of a temporary
This section begins with non obstante clause and it
11.
nature shall be final.
operates irrespective of earlier provisions under Chapter IV
of the Maharashtra Regional & Town Planning Act, 1966.
Thus, whenever it is found that any person has carried out
illegal development of a temporary nature without any
permission, from the Planning Authority or not in
accordance with any permission or in contravention of any
permission such an act is an offence punishable under the
Act by imprisonment for a term of one month which may
extend up to three years with a fine which is minimum a
sum of Rs. 2000/which may extend upto Rs. 5000/. Such
unauthorized or illegal development is treated as continuing
offence punishable with recurrent delay fine which may
extend to Rs.200/ per day until the offence is continuing
after conviction for the first offending act; in other words
such offending act of unauthorized or illegal development of
a temporary nature.
12.
The next contention on behalf of the appellant, in
respect of which the substantial question of law is
ig
formulated by this court as stated in Para 5 above, is as to
whether the appeal by the NIT became infructuous due to
transfer of planning Schemes to the Nagpur Municipal
Corporation with the exceptions of certain Schemes for the
NIT only as stated in the Notification issued by the
Government of Maharashtra. It clearly appears that the
effective policy decision was taken by the Government of
Maharashtra as published in the Notification (supra) to
operate in the Nagpur region. The Notification is in the
interest of the public good for effective implementation and
enforcement of Town Planning Scheme in City of Nagpur
The NIT ceased to remain the planning authority except in
the limited items stated in the Notification operative with
effect from 27022002. As of rule, the powers of the
planning authority is vested in the Nagpur Municipal
Corporation with effect from the date of the notification
(except seven items in which the NIT will continue as
planning authority as stated in the Notification.)
The notification operates prospectively with effect
13.
from the date of its issuance. The object is that the
development in the city of Nagpur shall be done in
organised manner by the Nagpur Municipal Corporation as
the planning authority constituted in accordance with the
above Notification issued by the State Government of
Maharashtra.
14.
The argument on behalf of the respondent is that the
NIT no longer can claim to function as planning authority
except in the seven cases stated itemwise in the State
Government Notification. (supra). Substantive provision
stated cannot be construed as retrospective in nature unless
the provision itself indicates the same. Such decision by the
State Government is in the larger public interest which has
disabled the NIT subject to exceptional seven cases
specifically stated in the Notification and generally
constituted the Nagpur Municipal Corporation as the
“planning authority” for the city of Nagpur. The Notification
must be interpreted as prospective with effect from the date
of issuance of the Notification in the Official Gazette of the
State of Maharashtra. The Nagpur Municipal Corporation so
constituted as “Planning authority” with plenary power in
the larger public interest would perform its statutory duty to
ensure the finalisation of the development plan of the
Nagpur City in organised manner primarily for the benefit of
the public. Previous action on the part of the earlier
planning authority is not totally meaningless merely because
there is change of the planning authority. New planning
authority/NMC can undertake and perform its statutory
duties as contemplated under the Law.
15.
However I do not express any opinion on merits of
legality or otherwise of the action taken on the part of the
NIT as planning authority to demolish alleged illegal
construction, since NIT has no longer remained as the
planning authority. NMC/new Planning authority
constituted pursuant to the Notification can and as
“planning authority” is empowered to take appropriate
statutory action according to law and follow the due process
of law qua the alleged illegal construction made by the
plaintiff. That being so, I refrain from commenting on
merits of the matter while I record my conclusion
restricting it having accepted the contention on behalf of the
respondent that the present Second Appeal by the NIT has
become infructuous after the change of the Planning
authority and substantial question of law, therefore, is
answered in the affirmative accordingly.
16.
In the result, therefore, the Second Appeal preferred
by the NIT is dismissed as infructuous. No order as to costs.
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