NAGPUR IMPROVEMENT TRUST & ORS. versus M/S BOMBAYWALA & ORS. on 22 January 2019

[2019] 1 S.C.R. 1001

NAGPUR IMPROVEMENT TRUST & ORS.

v.

M/S BOMBAYWALA & ORS.

(Civil Appeal No. 937 of 2019)

JANUARY 22, 2019

[A. K. SIKRI, ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Maharashtra Regional Town Planning Act, 1966 – Purposeof its enactment – Held: To make provisions for planning thedevelopment and the use of land in regions established for theirpurpose and to ensuring that Town Planning Schemes are made ina proper manner and their execution is made effective.

Maharashtra Regional Town Planning Act, 1966 – s.59 –Improvement scheme – Abhyankar Road Widening and Buty MahalStreet Scheme was framed under Nagpur Improvement Trust Act inthe year 1960 for creating improved means of communications andfacilities for traffic – The scheme provided for 15 metre internalroad – However, the Development Plans made under the MRTP Actwhich came into effect on 11.1.1967 did not provide for 15 metreinternal road – NIT decided to implement the scheme – StateGovernment allotted reconstituted composite plot to the land owners – Pursuant thereto, the process of widening of Abhyankar Roadwas initiated and notices were issued for demolition of shops – Writpetitions filed for quashing of the notices – High Court quashedthe notices of demolition – High Court also observed that as in theScheme sanctioned under s.45 of the NIT Act, 15 metre internalroad is provided, unless the same is varied and/or modified unders.46 of the NIT Act by the Planning Authority, the same shall haveto be implemented – On appeal, held: The Development Plan madeunder the MRTP Act would take precedence over any Scheme tothe contrary – s.59 of the MRTP Act provides for preparation of theScheme under the MRTP Act, which specifically provides that thePlanning Authority may prepare one or more Town Planning Schemefor the area within its jurisdiction or any part thereof for the purposeof implementing the proposals in the Final Development Plan –Conjoint reading of ss.39, 43, 46 and s.59 of the MRTP Act showedthat the Development Plans prepared and sanctioned under the

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Aprovisions of the MRTP Act shall prevail – Therefore, there cannotbe any development and/or construction permitted contrary to theDevelopment Plan prepared and sanctioned under the provisionsof the MRTP Act, though the Scheme prepared and sanctionedunder s.45 of the NIT Act may permit such development and/orconstruction – In case of a conflict between the MRTP Act and theBNIT Act, the MRTP Act will prevail – Nagpur Improvement TrustAct, 1936 – s.45.

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 toCvary the Scheme in line with the Development Plan sanctioned underthe MRTP Act – In the transferred case in question, when the DPwas sanctioned, without any proposal for the 15 metres internalroad, first in the year 1976 and thereafter in the years 1989 and2001, the same was after following the due procedure and the same Dwas approved and sanctioned by the State Government – Thereafter,when the Scheme to the extent in conflict with the DP Plan wasmodified as mandated under s.39 of the MRTP Act, the same cannotbe said to be illegal – Therefore, when s.39 MRTP Act and theprovisions of the NIT Act are read harmoniously, the impugnedNotification modifying the Scheme and/or Board ResolutionEmodifying the Scheme deleting 15 metres wide road, which is in linewith the Development Plan sanctioned under the MRTP Act, cannotbe said to be illegal – Nagpur Improvement Trust Act, 1936 – s.45.

Disposing of the matters, the Court

Conclusion

Disposing of the matters, the Court

HELD: 1. The Final Development Plan of 1976 did notFcontain the 15 metres internal road from the land in question asagainst the 15 metres internal road provided in the final Schemeof 1964. Thus the Scheme of 1964 prepared and sanctioned theprovisions of the NIT Act to the extent of providing 15 metresinternal road can be said to be not in consonance with theDevelopment Plan sanctioned under the provisions of the MRTPGAct. Section 59 of the MRTP Act provides for preparation of theScheme under the MRTP Act, which specifically provides thatthe Planning Authority may prepare one or more Town PlanningScheme for the area within its jurisdiction or any part thereof forthe purpose of implementing the proposals in the FinalHDevelopment Plan. Section 59 of the MRTP Act is relevant as in the present case, the Scheme which provides 15 metres internalroad was prepared and sanctioned under the provisions of theNIT Act and prior to the enactment of MRTP Act and, therefore,Section 39 read with Section 92 shall be applicable. A conjointreading of Sections 39, 43, 46 and even Section 59 of the MRTPAct show that the Development Plans prepared and sanctionedunder the provisions of the MRTP Act shall prevail. Therefore,there cannot be any development and/or construction permittedcontrary to the Development Plan prepared and sanctioned underthe provisions of the MRTP Act, though the Scheme preparedand sanctioned under Section 45 of the NIT Act may permit suchdevelopment and/or construction. [Paras 11.7-11.9][1022-D-E, G-H; 1022-A-B]

2. Though there was a provision for internal 15 metres roadin the Scheme under the NIT Act which was sanctioned in theyear 1964, thereafter much development had taken place andthere were changed circumstances. In the Development Plan/revised Development Plan, the existing road came to be widenedfrom 12 metres to 24 metres and, therefore, when the DP wasprepared and sanctioned under the MRTP Act, there was noproposal for 15 metres internal wide road. The DevelopmentPlan prepared and sanctioned under the MRTP Act would overridethe TP Scheme. There cannot be any development and/orconstruction permitted contrary to the DP Plan under the MRTPAct. Under the circumstances, the impugned judgment and orderpassed by the High Court cannot be sustained. [Para 11.11][1024-D-F]

3. The layout plans are sanctioned and the building permithas been granted absolutely in consonance with the DP sanctionedunder the MRTP Act. The demolition notices were receivedpursuant to and in furtherance of the building permit and so as toenable the original land owners/developers to put up theconstruction as per the layout plan sanctioned and the buildingpermit granted. Therefore, the High Court has erred in holdingthat the action of the NIT was mischief in law. The dispute ispending since many years. The land owners/developers enteredinto compromise with other similarly situated tenants. Now, only18 tenants are opposing the development, though the landowners/developers have agreed and are ready and willing to give ABC

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Asimilar treatment to them also which would be given to othertenants as agreed before this Court. It appears that for somereasons and/or to pressurize the land owners/ developers to givethem some more benefits, the original writ petitioners areopposing the development/construction. Though the original landowners/developers are having the building permission and haveBgot their plans sanctioned under the provisions of MRTP Actand even after incurring huge expenses, they are not in a positionto put up any further construction because of the pendinglitigation. Therefore, the equity would also be in favour of theappellants as land owners/developers. [Paras 11.13, 11.15][1025-CB-C, F-H; 1026-A-B]

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

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

Section 39 of the MRTP Act mandates the PlanningAuthority to vary the Scheme in line with the Development Plansanctioned under the MRTP Act. When the DP was sanctioned,Dwithout any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001, the samewas after following the due procedure and the same was approvedand sanctioned by the State Government. Therefore, thereafter,when the Scheme to the extent in conflict with the DP Plan hasbeen modified as mandated under Section 39 of the MRTP Act, Eafter considering the objections raised by the original writpetitioners, thereafter, the same cannot be said to be illegal.Therefore, reading Section 39 of the MRTP Act and the provisionsof the NIT Act harmoniously, the impugned Notification modifyingthe Scheme and/or Board Resolution modifying the Scheme Fdeleting 15 metres wide road, which would now be in line withthe Development Plan sanctioned under the MRTP Act, the samecannot 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 SectionGWelfare Association v. State of Karnataka (1991) 2 SCC604 : [1991] 1 SCR 974 – relied on.

Case Law Reference(2012) 3 SCC 619relied onPara 5H[1991] 1 SCR 974relied onPara 8

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 937 of2019.

From the Judgment and Order dated 15.09.2016 of the HighCourt of Judicature at Bombay, Bench at Nagpur in Writ Petition No.2695 of 2015.

WITH

Civil Appeal Nos. 938, 939, 940, 941, 942 and 943-944 of 2019

and T.C.(C) No. 23 of 2018.

Saurav Kirpal, V. Giri, Mukul Rohatgi, Sr. Advs., Mehul M. Gupta,Virat Mishra, R. P. Gupta, Satyajit A. Desai, Anshuman Singh, Ms. AnaghaS. Desai, Sameer Rohatgi, Akshay Naik, Akshit Pradhan, PrashantPakhiddey, Abhay Kumar, Hrishikesh Chitaley, Shubhranshu Padhi,Venkita Subramoniam T.R, Rahat Bansal, R. Sharma, Ms. Liz Mathew,Kush Chaturvedi, Ms. Rukhmini Bobde, Charuhas Dharmadhikari,Anirudh Ananthakrishnan, Kumar Shashank, Nivesh Kumar, Manik Sethi,Vishal Prasad, Ms. Soumya, Ms. Mayuri Kulkarni, Shriram P. Pingle,Ms. Anagha S. Desai, Ms. Deepa M. Kulkarni, Nishant RamakantraoKatneshwarkar, Sanjay Ghose, Nitin Bhardwaj, Rameshwar PrasadGoyal, Aman Varma, S. Padhi, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J. Leave granted in all these Special LeavePetitions.

1. As common question of law and facts arise in this group ofappeals arising out of theimpugned judgment and order dated 15.09.2016passed by the High Court of Bombay, Bench at Nagpur passed in WritPetition No.2695 of 2015, all these appeals are being disposed of by thiscommon judgment and order. For the sake of convenience, Civil Appealarising out of the SLP© No.32089 of 2016 is treated as lead matter andthe facts in the said appeal are narrated.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 15.09.2016 passed by the Division Bench of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur passed inW.P.No.2695 of 2015 by which the Division Bench has allowed the said A

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AWrit Petition preferred by the respondents Nos.1 to 18 herein-originalpetitioners Nos.1 to 18 some of the occupants/tenants of the building inquestion and by which the Division Bench has set aside the notice dated24.04.2015 issued by the Nagpur Improvement Trust, the originalrespondents-Nagpur Improvement Trust and others have preferred thepresent appeals.B

3. The facts leading to the present appeals in nutshell are as under.

4. That the Nagpur Improvement Trust Act 1936 (hereinafterreferred to as the ‘NIT Act’) was enacted on 25.12.1936. That theNagpur Improvement Trust (hereinafter referred to as the ‘NIT’) videCBoard Resolution dated 29.10.1960 framed an improvement Schemeknown as “Abhyankar Road Widening and Buty Mahal Street Scheme”(hereinafter referred to as “the Scheme”) in respect of 8.7 acres of landbearing Khasra No.320 and 315 (part) Mouza Sitabuldi, belonging to theButy Family. That the same Scheme came to be framed under Section31 of NIT Act for “creating new or improving the existing means ofDcommunications and facilities for traffic”. That,inter alia, a new 15metres wide road was to be constructed to join Mahatma Gandhi Roadto Abhyankar Road. That the internal roadof 15 metres provided in thesaid Scheme is the subject matter of issue in the present matters. That,the said Scheme came to be published on 29.10.1961 as per Section 39Eof the NIT Act. That, the NIT sought approval of the State Governmentof the above Scheme. That the State Government sanctioned the saidScheme in exercise of powers under Section 44(1) read with Section45(1)(a) of the NIT Act on 23.09.1964. Accordingly, a Notification tothat effect was also issued under Section 45 of the NIT Act.

F4.1 That, thereafter, the Maharashtra Regional Town PlanningAct, 1966 (hereinafter referred to as the “MRTP Act”) came into effecton 11.01.1967. At this stage, it is required to be noted that, as per theMRTP Act, any Development Plan made under the said Act had to takeprecedence over any Scheme to the contrary. The same shall be discussedhereinbelow.G

4.2 That NIT was appointed as the “Planning Authority” underthe MRTP Act for Nagpur. That, in the year 1967, the First FinalDevelopment Plan for the City of Nagpur under Sections 22 and 31 ofthe MRTP Act was prepared and sanctioned. At this stage, it is requiredto be noted that, in the said final Development Plan, the above 15 metresH

road which was provided under the Town Planning Scheme under theNIT Act was not shown in the Development Plan under the MRTP Act.

4.3 That the NIT, in Board meeting dated 05.06.1981 and31.12.1981, decided to implement the Scheme. That, a Special LandAcquisition Officer came to be appointed by the State Government foracquisition of the land and the proceedings of the land acquisition cameto be initiated.

4.4 That a newspaper article was published on 21.06.1981 statingthat the NIT has decided to handover the “Buty Mahal DevelopmentScheme” to the land owners for redevelopment. That, in the year 1983,a Writ Petition being WP.No.2326 of 1983 was filed by the land ownersbefore the Nagpur Bench of the Bombay High Court challenging theacquisition. Initially, the High Court granted an interim stay on theacquisition proceedings.

4.5 That, on 07.06.1984, the land owners – Shri Yogeshwar Butyand Smt. Madhuribai Buty approached NIT to allot a reconstituted plotor plots bearing Nos.6, 7 and 8 belonging to them. However, the saidrequest came to be rejected by the NIT on 17.08.1984.

4.6 That, on 13.03.1995, one Smt. Indirabai Buty (land owner)submitted an application for permission to develop the land stating interalia, that; (1) Development of the land would be as per the DevelopmentPlan of the NIT; (2) All the tenants would be accommodated in theproposed Scheme; (3) The betterment charges would be paid to theNIT. That, the Board of NIT in its meeting held on 11.03.1996 passed aResolution wherein it was, inter alia, decided ……………..(1) A plotwas allocated in the matter of Shri YadhurajSanghani; (2) Smt. IndirabaiButy and others land owners to accommodate in their proposed Scheme,the tenants in the area of the reconstituted plot and (3) All the petitions inrespect of the subject plot would have to be withdrawn unconditionally.On the basis of the said Resolution of the NIT dated 11.03.1996, WritPetition No.2326 of 1983 challenging the acquisition was withdrawn bythe land owners.

4.7 In the meantime, in the year 1989, the First Final DevelopmentPlan which was earlier prepared and sanctioned in the year 1986, cameto be revised. Again, the above 15 metres internal road was not depictedin the revised DP.

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A4.8 It appears that, in the year 1997, NIT addressed letters to theUrban Development Department requesting the latter to obtain permissionfrom the Government to relax Rule 5(2) of the NIT (Land Disposal)Rules, 1983 (hereinafter referred to as the “1983 Rules”) under Rule 26of the 1983 Rules, to allocate the reconstituted plot in the present Scheme.That the State Government vide order dated 07.10.1997 issued underBRule 26 of the 1983 Rules relaxed Rule 5(2) and allotted the reconstitutedplot in Survey Nos.3117, 3119, 3123, 3127, 3120, 3122, 3124 and 3125 inKhasra No.320 Mouza Sitabuldi, subject to certain conditions includinginter alia that …………(i) The Applicants would accept thecompensation of the land fixed by the Land Acquisition Officer and giveCpossession of the lands to him; (ii) Development of the land would asper the Development Plan of NIT; (iii) All the tenants are to beaccommodated in the Scheme and (iv) That in the interest of tenants theNIT fixed the plot allotment rate @ 50% of the market value, withoutprejudice to Rule 7(3) of the 1983 Rules.

D4.9 That the NIT passed a Board Resolution on 23.10.1997 toimplement the altered Scheme in terms of G.O. dated 07.10.1997. Thatthe Special Land Acquisition Officer, NIT passed an Award dated16.12.1997 in respect of the land admeasuring 5677 sq.ft bearing KhasraNo.320 Sitabuldi,Nagpur. That, pursuant to the Award declared by theLand Acquisition Officer, possession of the land was taken by the LandEAcquisition Officer and handed over to NIT. It appears that, out of271552.60 sq.ft of the land, only 114079.36 sq.ft was acquired by NITand the rest of the lands remained with the land owners.

4.10 That the Final Development Plan in terms of Section 31 ofthe MRTP came to sanctioned in the year 2001.F

4.11 That pursuant to the G.O. dated 07.10.1997, the process ofwidening of the Abhyankar road was initiated and notices were issuedfor demolition of shops. At that stage, Writ Petition No.798 of 2002 wasfiled by some of the Abhyankar Road tenants challenging the demolitionnotices issued by the NIT to the tenants in the process of road widening.GThe said Writ Petition came to be dismissed by the High Court by judgmentand order dated 22.02.2002. The matter was carried before this Court.Before this Court, a compromise was reached between the petitionersof W.P.No.798 of 2002 and land owners and NIT. By order dated08.04.2002, SLP© No.4846 of 2002 was disposed of in terms of theHcompromisearrived at between the land owners, the tenants (only on NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA[M. R. SHAH, J.]

NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA[M. R. SHAH, J.]

writ petitioners) original petitioners to W.P.No.725 of 2002), whereininter alia the following conditions were specified:

• The Landlord shall construct a multi-storeyed building on thereconstituted plot that was to be allotted to him by the NIT.

• The Tenant and Landlord shall within a period of one weekfrom the filing of the compromise petition would vacate sucharea out of the property covered in the instant proceedings intheir possession as is required for widening of the AbhayankarRoad.

The compromise also provided, NIT to allot one single reconstitutedplot and redevelopment of suit property to be carried out in accordancewith the Development Plan of Nagpur City and all tenants to be rehousedpost development.

4.12 That thereafter, on the request made by the owners, theResolution was passed by the NIT dated 23.10.2003 to allot a singlereconstituted plot admeasuring 10602.09 sq.mts as undivided share andthe same was offered to the Buty family. That thereafter, the Governmentby letter dated 12.11.2003 allotted the reconstituted plot to the owners.From the letter dated 12.11.2003, it appears that the land for road will beprovided as per the Development Plan and that the beneficiaries willhave to make land available for road widening and parking.

4.13 It appears that thereafter the NIT represented to the StateGovernment vide Representations dated 16.08.2005 and 29.03.2006purportedly under Section 37(1) of the MRTP Act in order to increasethe width of the Abhyankar Road from 12 metres to 24 metres and forconverting the reconstituted plot from residential to commercial in orderto accommodate the tenants running commercial shops.

4.14 It appears that thereafter on 02.08.2006, the owners enteredinto a development agreement with one of the petitioners herein – M/sGoel Ganga Infrastructure & Real Estate Pvt. Ltd. For developing theproperty bearing Khasra No.320.

4.15 That thereafter the State Government passed an order dated22.06.2007 under Section 37(1) of the MRTP Act permitting the changeof use in respect of Khasra No.320 and 315 (Part) from residential tocommercial. It appears that the permission was also granted by the Stateto widen the Abhyankar Road to 24 metres in place of 12 metres.

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A4.16 It appears that thereafter the provisional sanction was grantedby NIT on 22.04.2008 to the drawing/building map to the layout plansubmitted by developer for the construction of a commercial complex.It appears that thereafter vide letter dated 18.08.2009, the NIT issued aletter to the land owners allotting a single reconstituted plot admeasuring114079.36 sq.mts to the land owners, subject to the conditions mentionedBin the said letter. That thereafter, on 10.02.2010, a lease deed wasexecuted between the NIT and the land owners in respect of thereconstituted plot subject to the terms and conditions mentioned in theallotment letter dated 18.08.2009. It appears that thereafter on15.05.2012, the NIT sanctioned the Final Layout Plan in respect of theCreconstituted plot as per the D.C.R. of Nagpur City. That the buildingplan also came to be sanctioned on 27.06.2012 in accordance with theD.C.R. of Nagpur City.That, on 10.12.2014, building permit andcommencement certificates were issued by the NIT subject to certainconditions specified therein. That a revised building plan was alsosanctioned by the NIT on 11.12.2014 subject to the conditions mentionedDtherein.

4.17 That thereafter on 24.04.2015, the NIT issued notices to thetenants asking them to vacate a portion of their shops so as to enableconstruction as per the layout plan.E4.18 The aforesaid notices gave rise to filing of Writ Petition

E4.18 The aforesaid notices gave rise to filing of Writ PetitionNo.2695 of 2015 before the High Court of Bombay, Nagpur Bench. Inthe said Writ Petition, the Respondents Nos.1 to 18 herein the originalwrit petitioners prayed inter alia for an order quashing the notices issuedby the NIT on 24.04.2015. That the said petition was opposed by theoriginal writ petitioners as well as the NIT. It appears that thereafter theForiginal writ petitioners filed an application being C.A.No.1615 of 2015in W.P.No.2695 of 2015 praying for amendment to the prayers in thewrit petition and allow them to challenge the sanctioned plan dated27.06.2012 and the revised plan dated 11.12.2014. The said amendmentwas opposed by the original land owners and the developers. However,Gthereafter High Court allowed the said Amendment application.

4.19 It appears that, during the course of the hearing, the HighCourt by order dated 03.09.2015 in W.P.No.2695 of 2015 directed theChairman, NIT to explore the possibility of an amicable settlement bycalling the representatives of both the tenants and the developers andHland owners and directed to submit a report to the Court. It appears that, pursuant to the order dated 03.09.2015, the Chairman, NIT calledall the parties. That thereafter the Chairman, NIT submitted a report on15.10.2015 stating that no settlement could be arrived at between theparties.

4.20 That thereafter, by impugned judgment and order, the HighCourt has allowed the Writ Petition and has quashed and set aside thedemolition notice dated 28.04.2015 issued by the NIT. The High Courthas also further observed that it will be open for the NIT to issue freshnotices of demolition to the writ petitioners after the sanctioned layoutplan dated 15.05.2012, the building permit granted on 27.06.2012 revisedon 11.12.2014 as well as the construction, if any, carried out are broughtin conformity with the Scheme published under Section 45 of the NITAct of 23.09.1964. While passing the impugned judgment and order theHigh Court has observed and held that the layout plan sanctioned in thebuilding permit granted are contrary to the provisions of the Schemepublished and sanctioned under Section 45 of the NIT Act and that thesame suffers from vice of internal mischief.

4.21 That the impugned judgment and order passed by the HighCourt dated 15.09.2016 in W.P.No.2595 of 2016 is the subject matter ofthe present appeals.

5. It appears that, in the meantime and after the impugned judgmentand order passed by the High Court, the original Scheme sanctionedunder Section 45 of the NIT Act which provided 15 metres internal roadcame to be modified as provided under the NIT Act by deleting 15 metresinternal road. The same came to be published in the Government ofMaharashtra Gazette on 24.04.2017. That the W.P.No.5005 of 2017was filed by the 18 tenants/shopkeepers before the Nagpur Bench,Bombay High Court questioning the Resolution passed by the NIT dated24.04.2017 issued under Section 46 of the NIT Act deleting 15 metresinternal road and another internal road from the Scheme. That a TransferCase No.23 of 2018 was filed before this Court praying inter alia fortransfer of W.P.No.5005 of 2017 to this Court. That is how, the TransferCase No.23 of 2015 is also listed along with the present group of appeals.

5.1 We have heard the learned counsel appearing for therespective parties in the transferred Writ Petition No.5005 of 2017 also,along with the other appeals arising out of the impugned judgment andorder dated 15.09.2016 passed in W.P.No.2695 of 2015.

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6. Mr. V. Giri, Mr. Mukul Rohtagi and Mr. Dhruv Mehta, learnedsenior counsel appearing on behalf of the respective appellants havevehemently submitted that the impugned judgment and order passed bythe High Court is contrary to the provisions of MRTP Act and also thelaw laid down by this Court in the case of Manohar Joshi vs. State ofMaharashtra &Anr. 2012 (3) SCC 619.

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6.1 The learned counsel appearing on behalf of the respectiveappellants-original respondents have vehemently submitted that whilepassing the impugned judgment and order the High Court has not properlyappreciated and considered the relevant provisions of MRTP Act.

C6.2 The learned counsel appearing on behalf of the respectiveappellants have vehemently submitted that though in the original Schemeframed under the provisions of the NIT, 1936 there was a provision for15 metres internal road, thereafter when the MRTP Act came to beenacted and came into force and the Development Plan framed andsanctioned under the provisions of the MRTP Act did not contain anyD“internal road” as was there in the Scheme published under Section 45of the NIT Act, in view of the provisions of the MRTP Act, theDevelopment Plan overrides the DP Scheme and, therefore, there is noquestion of providing any internal road. It is submitted that the HighCourt has not properly appreciated the abovesaid at all.

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6.3 It is vehemently submitted by the learned counsel appearingon behalf of the respective appellants that, as per the law laid down inthe case of Manohar Joshi (supra), the DP Plan overrides the Scheme;and anything contrary to the DP Plan in the Scheme shall have to bevaried to bring it in line with the Development Plan sanctioned under theFprovisions of MRTP Act. It is submitted that, therefore, the High Courthas materially erred in quashing and setting aside the notices of demolitionwhich are based upon final layout plan sanctioned on 15.05.2012 andbuilding permit granted on 27.06.2012, and revised on 11.12.2014, whichwere as per the provisions of MRTP Act.

6.4 It is further submitted by the learned counsel appearing onbehalf of the respective appellants that the High Court has materiallyerred in misreading and/or misinterpreting the judgment of this Court inManohar Joshi (supra) and held that the statutory obligations createdupon the NIT under Section 45 of the NIT Act to execute the Scheme tothe extent it is not in variation or modification of the proposals in the G

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Final Development Plan, continues to subsist and can be enforced. It isvehemently submitted by the learned counsel appearing for the respectiveappellants that the aforesaid observations are justcontrary to theobservations made by this Court in the case of Manohar Joshi(supra).It is submitted that in the case of Manohar Joshi (supra) this Court hasspecifically observed and held that even if such a variation as directedunder Section 39 of MRTP Act does not take place, the land cannot beput to use in any way in contradiction with the provisions in the DP Plan.

6.5 It is further submitted by the learned counsel appearing onbehalf of the respective appellants that even the aforesaid finding andtheobservation are contrary to Section 43 of the MRTP Act which providesthat once the declaration of intention to prepare a Development Plan ispresented, no development contrary thereto can be permitted.

6.6 It is further submitted by the learned counsel for the respectiveappellants that the High Court has not properly appreciated and consideredthe fact that, in view of the subsequent development and the wideningof the existing road, there was no necessity for internal road as providedin the Scheme under the NIT Act. It is submitted that as such in view ofthe subsequent development and widening of the existing road, whensubsequently the DP under the MRTP Act was prepared, there was noprovision for 15 metres internal road as provided earlier in the Schemeunder the NIT Act.

6.7 It is further submitted by the learned counsel that the HighCourt has not properly appreciated the fact that as such in theDevelopment Plan prepared under the provisions of MRTP Act, whichwas first prepared in the year 1976 and in the subsequent DP, there wasno provision for the internal road and, despite the same, the same wasnot challenged by the original writ petitioners. It is submitted that eveninitially what was challenged in the main writ petition was demolitionnotices. It is submitted that even subsequently also the DP preparedand sanctioned under the provisions of MRTP Act,which does not containany provision for internal road was not under challenge at all. It issubmitted that, therefore, the layout plan came to be sanctioned underthe provisions of the MRTP Act and the building permit was issued underthe provisions of MRTP Act, which came to be challenged subsequentlyby way of amendment. It is submitted that in view of the relevantprovisions of the MRTP Act, the construction has to be made as per thelayout plan and the building permit granted under the provisions of MRTP

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AACT. It is submitted, that, therefore, the High Court has materiallyerred in quashing and setting aside the final layout plan as well as thebuilding permit solely on the ground that the same is in contravention ofthe Scheme published under Section 45 of the NIT Act.

6.8 It is further submitted by the learned counsel for the AppellantsBthat the High Court has not properly appreciated and considered thestand of the NIT that punctuated lines in the Development Plan onlyindicate the boundaries of the Scheme under the control of the NIT andit has no more significance than this.

6.9 It is further submitted by the learned counsel that the HighCCourt has materially erred in observing that, in the absence of anyprovisions contrary to the internal road, shown in the Development Plan,itcannot be said that the provisions of the internal road vanishesautomatically. It is submitted that the High Court has not properlyappreciated the fact that as such the Development Plan which has beenprepared in consonance with the provisions of the MRTP Act, specificallyDdo not provide any internal road, which was earlier provided in the Schemeunder the NIT Act.

6.10 It is further submitted by the learned counsel that even theGovernment Resolution dated 07.10.1997 specifically provided and/orpermitted to develop the landin question as per the Development PlanEand not as per the Scheme. It is submitted by learned counsel that whileissuing G.O. dated 07.10.1997,it was specifically noted that the 50 ft. (15metres) wide road through the land is not provided under theDevelopment Plan. It is submitted that the aforesaid was even consideredand noted by the NIT. It is submitted that despite the above the HighFCourt has observed that all throughout the NIT desired to implement theScheme.

6.11 It is further submitted by the learned counsel that the HighCourt has not properly appreciated the fact that even one consolidatedplot was allotted under the provisions of the MRTP Act and thereafterGthe layout plan as per the provisions of the MRTP Act was submittedand got sanctioned and the development permission was obtained tocarry out the construction which was granted as per the DP sanctionedunder the provisions of MRTP Act. It is submitted that the High Courthas materially erred in quashing and setting aside the demolition noticeswhich as such were consequent upon the sanction of the layout plan H

and the grant of the permission. It is submitted that the High Court hasmaterially erred in quashing and setting aside the sanctioned layout planas well as the development permission granted under the provisions ofthe MRTP Act. It is further submitted by the learned counsel that theHigh Court has, therefore, materially erred in observing and holding thatgrant of permission/sanction of layout plan which was in contraventionof the Scheme under the NIT Act was a mischief in law to provide anunfair advantage to the developers and the owners and it deprives thefacility of frontage to the tenants on the internal road.

6.12 It is further submitted by the learned counsel that the HighCourt has materially erred in not appreciating the fact that only 18 tenantsfiled the writ petition and were aggrieved, against which majority of thetenants accepted the settlement/compromise before this Court. It isstated that the appellants are ready and willing to provide the same benefitto the original writ petitioners herein also. It is submitted, however, forsome oblique reason and/or to get some more benefits, only 18 tenantsapproached the High Court and filed the writ petition.

6.13 The learned Counsel appearing on behalf of the respectiveappellants have vehemently submitted that, on one hand, the High Courthas specifically observed that, in paragraph 86, the High Court has notset aside and it is also not necessary for the High Court to set aside thelayout plan and the building permit granted by the NIT,the ultimateobservation made by the High Court in paragraph 89(2) would tantamountto quashing and setting aside the sanctioned layout plan and even thebuilding permit.

6.14 Making the above submissions and relying upon the provisionsof NIT Act as well as the MRTP Act and the decision of this Court inthe case of Manohar Joshi (supra), it is requested to allow the presentappeals and quash and set aside the impugned judgment and order passedby the High Court.

7. The present appeals are vehemently opposed by Ms. RukhminiBobde, learned Advocate appearing for the writ petitioners and Ms.Deepa Kulkarni learned Advocate also.

7.1 The learned counsel appearing on behalf of the original writpetitioners have supported the impugned judgment and order passed bythe High Court.

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7.2 It is vehemently submitted by the learned counsel appearingon behalf of the original writ petitioners that the impugned judgment andorder passed by this High Court is absolutely in consonance with theprovisions of the NIT Act as well as the MRTP Act, which is not requiredto be interfered by this Court.

B7.3 It is vehemently submitted by learned counsel for original writpetitioners that on true interpretation of the provisions of NIT Act, moreparticularly Section 45(3) and 45 of the NIT Act, the High Court hasrightly observed and held that unless and until the Scheme sanctionedunder the NIT Act is varied and/or is modified under the provisions ofthe NIT Act, the Scheme shall prevail and shall have to be acted upon.C

7.4 The learned counsel appearing on behalf of the original writpetitioners have emphasised on the object and purpose to provide 15metres internal road in the Scheme sanctioned under the NIT Act. It issubmitted that the internal road provided in the Scheme sanctioned underSection 45 of the NIT Act was a part of Street Scheme so as to avoidDthe traffic congestion. It is submitted that the use of land in question onthe date of such Scheme was initially for residential purposes with internalroad, one cinema theatre and the peripheral area being used for shops/offices purposes. It is submitted that the object and purpose for providingthe internal road under the Scheme/Street Scheme was for creatingEnew or improving existing means of communication and facilities fortraffic. It is submitted that the execution of the Scheme was for (i)providing huge commercial complex inside the Scheme area toaccommodate the tenants apart from others, (ii) widening of MahatmaGandhi Road and Abhyankar Road outside the Scheme area; (iii) providing50 ft (15 metres) wide internal road along with others two roads insideFthe Scheme area to ease out the traffic and removing congestion, and(iv) to provide space open to sky for parking . It is submitted that,therefore, once there was a Scheme/Street Scheme as sanctioned underSection 45 of the NIT Act with specific object and purpose, merelybecause in the Development Plan prepared under the MRTP Act, thereGwas no specific reference to the internal road, it cannot be said that thesanctioned Scheme which was sanctioned under Section 45 of the NITAct is not to be implemented, even if the same is not varied or modifiedunder the provisions of the NIT Act.

7.5 It is submitted that the High Court has rightly observed andheld that unless and until the Scheme is varied or is modified by thePlanning Authority, which in the present case i.e. NIT, after followingthe due process under Section 46 of the NIT Act, the Scheme has to beimplemented and anything including the sanction of the layout plan and/or grant of building permission which would be in contravention of theScheme under NIT Act, are illegal and contrary to the provisions of theNIT as well as the MRTP Act, and, therefore, the High Court hasrightly quashed and set aside the demolition notices and has rightlyobserved that it would be open for the NIT to issue fresh notices ofdemolition, after sanctioned plan, the building permit as well asconstruction, if any, carried out are brought in conformity with the Schemepublished under NIT Act on 23.06.1964.

7.6 It is vehemently submitted by the learned counsel that theimpugned judgment and order passed by the High Court is absolutely infurtherance of the object of the Scheme published under Section 45 ofthe NIT Act i.e. for better development and to avoid the traffic congestion.The learned counsel appearing on behalf of the original writ petitionershas heavily relied upon the decision of this Court in the case of ManoharJoshi(supra)reported in (2012) 3 SCC 619,in support of their submissionsthat planning involving highly complex cities depends upon scientificresearch, study and experience and, thus deserves due reverence andtherefore, the Scheme which is prepared after due consideration ofnecessity for better street planning has to be implemented,unless thesame is varied and/or is modified after following due procedure asrequiredunder the provisions of the NIT Act.

7.7 It is vehemently submitted by the learned counsel that as theappellants have as such subsequently implemented the impugned judgmentand order passed by the High Court by modifying the Scheme whichwas earlier sanctioned and prepared under the NIT Act, as permitted bythe High Court and, therefore, now thereafter it is not open for theappellants to challenge the impugned judgment and order passed by theHigh Court.

8. Now, so far as challenge to variation/modification of the Schemeunder Section 46 of the NIT Act, which is the subject matter of theTransfer Petition, it is vehemently submitted by the learned counsel onbehalf of the writ petitioners that the same is absolutely in breach of theprovisions of the NIT Act. It is submitted that a detail procedure required ABC

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Ato be followed for variation and/or modification of the Scheme as providedunder the NIT Act has not been followed at all. It is submitted thatneither any objections were invited nor any opportunity was given to thewrit petitioners. It is submitted that, therefore, subsequent variation and/or modification of the Scheme is absolutely illegal and deserves to bequashed and set aside. It is submitted that even the same can be said toBbe in violation of the principles of natural justice. In support of the above,the learned counsel appearing on behalf of the writ petitioners-the tenantshas heavily relied upon the decision of this Court in Scheduled Casteand Weaker Section Welfare Association vs State of Karnatakareportedin (1991) 2 SCC SCC 604.

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8.1 By making the above submission, it is requested to dismiss theappeals and upheld the impugned judgment and order passed by theHigh Court and to allow the Transfer Petition and quash and set asidethe variation and/or modification of the Scheme published under Section46 of the NIT Act.

D9. Now, so far as the Transfer Petition is concerned, and challengeto the subsequent variation and/or modification of the Scheme publishedunder Section 46 of the NIT Act is concerned, the learned counselappearing on behalf of the NIT as well as the original land owners anddevelopers have vehemently submitted that the Scheme is varied/modifiedEafter following due procedure required under the provisions of the MRTPAct. It is submitted that, as per Section 39 of the MRTP Act, where afinal Development Plan contains proposals which arein variation, ormodification of those made in a Town Planning Scheme, which has beensanctioned by the State Government before the commencement of theMRTP Act, the Planning Authority shall vary such Scheme suitably underFSection 92 to the extent necessary by the proposals made in the FinalDevelopment Plan. It is submitted that Section 92 authorises the StateGovernment to vary and/or modify the Scheme. It is submitted that,therefore, if Sections 39 and 92 of the MRTP Act are conjointly read, itcan be seen that the variation of the Scheme subsequently shall be aGformal action to bring the Scheme in consonance with the DevelopmentPlan. It is submitted that, therefore, when the Development Plan wassanctioned after inviting the objections etc. the subsequent variation ofthe Scheme to bring the Scheme in consonance with the sanctionDevelopment Plan would be only a formality which is required to bedone under Section 92 of the MRTP Act. It is submitted that, therefore H

subsequent variation and/or modification of the Scheme which in thepresent case would be as per Section 39 and Section 92 of the MRTPAct would be absolutely in consonance with the provisions of the MRTPAct as well as the NIT Act. It is submitted that the provisions of theMRTP Act and NIT Act are required to be read harmoniously tosub-serve the objectsand purposes of Sections 39 and Section 92 andother relevant provisions of the MRTP Act.

10. Now, so far as the submission on behalf of the original writpetitioners that in view of the fact and subsequently the Scheme cameto be varied as permitted by the High Court in the impugned judgmentand order and, therefore, the judgment and order passed by the HighCourt can be said to have been implemented and, therefore, the appellantsmay not be permitted to challenge the impugned judgment and order ofthe High Court is concerned, it is submitted that merely because withoutprejudice and to be on safer side if the Scheme is varied and/or modified,it cannot be said that appellants have waived their right to challenge theimpugned judgment and order, more particularly when the High Courtby the impugned judgment and order has set aside the demolition noticesand virtually sought as to know that the sanctioned layout plan and validlygranted the building permit.

11. We have heard the learned counsel appearing on behalf of therespective parties. What is challenged in the present batch of appeals isthe impugned judgment and order dated 15.09.2016 passed by the BombayHigh Court passed in Writ Petition No.2695 of 2015. On considerationof the impugned judgment and order passed by the High Court, it appearsthat the following two questions fell for determination before the HighCourt:

“1. Whether mere absence of proposal of “internal road “ in thefinal Development Plan under sub-section (6) of section 31 ofthe Maharashtra Regional and Town Planning Act and its existencein the Scheme, published under Section 45 of the NagpurImprovement Trust Act, can be termed as ‘variation’ or‘modification’, as contemplated by section 39 of the MRTP Act?,

1. Whether the impugned notices of demolition, based uponfinal layout plan sanctioned on 15-05-2012 and the buildingpermit granted on 27-06-2012 and revised on 11-12-2014, needto be set aside for want of Internal Road, which was the A

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Apart of the Scheme sanctioned under Section 44 of the NITAct?

11.1 It is required to be noted that initially demolition noticesdated 24.04.2015 were challenged before the High Court issued by theNIT. At this stage, it is required to be noted that the said demolitionBnotices were issued consequent upon the sanctioned layout plan dated15.05.2012, the building permit granted on 27.06.2012 and revised on11.12.2014. Subsequently, by an amendment, the original writ petitionerschallenged the plan sanctioned by the NIT on 27.06.2012 and the sanctiongranted to the revised plan on 11.12.2014. The said amendment wasallowed. The challenge was mainly on the ground that the sanctionCgranted is illegal and contrary to the Scheme. The Scheme which wassanctioned in the year 1964 under Section 45 of the NIT Act provided15 metres internal road. At this stage, it is required to be noted that theimprovement Scheme known as the “Abhyankar Road Widening andButy Mahal Street Scheme” was prepared and sanctioned under theDprovisions of NIT Act in the year 1964. However, thereafter, the MRTPAct came to be enacted and came into effect subsequent to the enactmentof the NIT Act i.e. with effect from 28.12.1966. From the chronologyof list of events noted hereinabove it appears and it is not in dispute thatthe First Final Development Plan under Section 31 of the MRTP Actcame to be sanctioned on 03.06.1976, which do not contain 15 metresEinternal road as was there in the Scheme sanctioned under Section 45 ofthe NIT Act. Even subsequently also, when the DP was revised in theyear 1989 and thereafter in 2001, the above internal road was not depictedin the revised DP.That thereafter the Government allotted reconstitutedcomposite plot under the MRTP Act and original land owners/developersFsubmitted the layout plan, which came to be sanctioned by the NIT andeven the building permission was granted under the provisions of theMRTP Act. Therefore, the NIT issued the demolition notices dated24.04.2015 impugned before the High Court so as to allow/permit theoriginal land owners/developers to put up the construction on the land in question as per the sanctioned layout plan and the building constructionGpermission. The High Court by the impugned judgment and order hasheld that as in the Scheme sanctioned under Section 45 of the NIT Act15 metres internal road is provided, unless the same is varied and/ormodified under Section 46 of the NIT Act by the Planning Authority,thesame shall have to be implemented and thereby the High Court has H

quashed and set aside the notices of demolition dated 24.04.2015 keepingit open for the NIT to issue fresh notices of demolition to the originalwrit petitioners after the sanctioned layout plan dated 15.05.2012, thebuilding permit granted dated 27.06.2012 and revised on 11.12.2014 aswell as the construction, if any, carried out are brought in conformitywith the Scheme published under Section 45 of the NIT Act on23.06.1964.

11.2 Therefore, the short question which is posed for considerationbefore this Court is whether, in the facts and circumstances of the case,when the Development Plan sanctioned under the provisions of MRTPAct do not provide an internal road from the land in question, still theScheme published under Section 45 of the NIT Act which provided 15metres internal road would be applicable and/or would have to beimplemented, though the Scheme may be contrary to the DevelopmentPlan sanctioned under the provisions of the MRTP Act ?

11.3 To answer the aforesaid question the object and purpose ofMRTP Act, relevant provisions of MRTP Act are required to be referredto and considered.

11.4 From the statement and object of the MRTP Act 1966, itappears that the same has been enacted to make provisions for: (1)planning the development and use of land in regions established for theirpurposes and for constitution of Regional Planning Boards therefor; (2)to make better provisions for the preparation of Development Plan witha view to ensuring that Town Planning Schemes are made in the propermanner and the execution is made effective; (3) to provide for thecompulsory acquisition of land required for public purposes in respect ofthe plans, and (4) for purposes connected with the matters aforesaid.The said Act is enacted to make provisions for planning the developmentand the use of land in regions established for their purpose and to ensuringthat Town Planning Schemes are made in a proper manner and theirexecution is made effective. Therefore, the MRTP Act came to beenacted with aforesaid object and purpose.

11.5 Section 3 of the Act permits the State Government to establishany area in the State to be a region. A regional plan is supposed to beprepared for various subjects which are mentioned in Section 14 of theAct. The ‘Development Plan’ is defined under Section 2(9) of the Actas a plan for the development or redevelopment of the area within the A

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Ajurisdiction of Planning Authority. Section 2(19) defines the “PlanningAuthority” to mean a local authority, and it includes some other specifiedauthorities also. There is no dispute that the Development Plan has to beprepared “in accordance with the provisions of regional plan” which iswhat is specifically stated in Section 21(1) of the Act.”

B11.6 Section 39 of the MRTP Act provides for - Section 39. “Variation of town planning scheme by developmentplan – where a final development plan contains proposals whichare in variation or modification of those made in a town planningscheme which has been sanctioned by the State GovernmentCbefore the commencement of this Act, the Planning Authorityshall vary such scheme suitably under Section 92 to the extentnecessary by the proposals made in the final development plan.”

11.7 We are concerned with the Final Development Plan of 1976which does not contain the 15 metres internal road from the land inDquestion as against the 15 metres internal road provided in the final Schemeof 1964. Thus the Scheme of 1964 prepared and sanctioned the provisionsof the NIT Act to the extent of providing 15 metres internal road can besaid to be not in consonance with the Development Plan sanctionedunder the provisions of the MRTP Act.E

11.8 Section 43 of the MRTP Act provides for restrictions ondevelopment of the land after the date on which the declaration of intentionto prepare the Development Plan for any area is published in the officialgazette except as provided under proviso to Section 43 of the Act.Section 46 of the MRTP Act provides that the Planning Authority inFconsidering the application for permission for development shall havedue regard to the provisions of any draft or final plan or proposals publishedby means of notice submitted or sanctioned under the MRTP Act. Section59 of the MRTP Act provides for preparation of the Scheme under theMRTP Act, which specificallyprovides that the Planning Authority mayGprepare one or more Town Planning Scheme for the area within itsjurisdiction or any part thereof for the purpose of implementing theproposalsin the Final Development Plan. As such, we not concernedwith Section 59 of the MRTP Act, as in the present case, the Schemewhich provides 15 metres internal road was preparedand sanctionedunder the provisions of theNIT Act and prior to the enactment of MRTPHAct and, therefore, Section 39 read with Section 92 shall be applicable.

11.9 Therefore, on conjoint reading of Sections 39, 43, 46 andeven Section 59 of the MRTP Act, the Development Plans prepared andsanctioned under the provisions of the MRTP Act shall prevail. Therefore,there cannot be any development and/or construction permitted contraryto the Development Plan prepared and sanctioned under the provisionsof the MRTP Act, though the Scheme prepared and sanctioned underSection 45 of the NIT Act may permit such development and/orconstruction. As such, the aforesaid view which we are taking issupported by the decision of this Court in the case ofManohar Joshi(supra). In the case of Manohar Joshi (supra), after considering therelevant provisions of the MRTP Act as well as the NIT Act,this Courthas specifically observed and held that when there is a conflict betweenthe Development Plan prepared and sanctioned under the provisions ofMRTP Act and the Scheme sanctioned under the provisions of the NITAct, the DPshalloverride the TPScheme. It is also further observedthat even if the variation, as directed under Section 39 of the MRTP Actdoes not take place, the land cannot be put to use, in any way, incontradiction with the provisions of DP Plan. In the case of ManoharJoshi (supra) this Court confirmed the findings recorded by the HighCourt that the DP Plan overrides the TP Scheme. This Court did notaccept the submission that the Development Plan and the TPSchemeoperate independent of each other and, until the State Governmentexercise its power of eminent domain under the Development Plan, andacquires the land, the land owners can develop its property as per theuser permitted under the TP Scheme. While not accepting the abovesubmission, it is observed by this Court that permitting a developmentcontrary to the provisions of the Development Plan, knowing fully wellthat the user under the TP Schemeis at variance in the DevelopmentPlan will make provisions of Sections 39, 42, 46 and 52 of the MRTP Actmeaningless. Therefore, the contrary observation and finding recordedby the High Court that unless and until the Scheme is varied under Section46 of the NIT Act as required under provisions of Section 39 of theMRTP Act, the Scheme sanctioned under Section 45 of the NIT Actshall subsist and can be enforced, cannot be sustained and the samedeserves to be quashed and set aside.

11.10 It is required to be noted that though in the Scheme sanctionedunder the provisions of the NIT Act proposing 15 metres internal roadwas in operation since 23.01.1964, when the MRTP Act came into force ABC

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Aand even thereafter when the First Development Plan was sanctionedunder Section 31 of the MRTP Act for Nagpur in the year 1976 in whichthere was no proposal for 15 metres internal road, and eventhereafter,twice the Development Plan was revised first in the year 1989and again in the year 2001 in which also there was no provision for the15 metres internal road, despite the above, at no point of time, anybodyBincluding the original writ petitioners challenged the Development Planunder the MRTP Act in which the 15 metres internal road was notshown.Even thereafter also,at no point of time,and even in the writpetition, the original writ petitioners challenged and prayed to set asidethe Development Plan in which there was no provision for 15 metresCinternal road, though the same was mentioned in the Scheme preparedand sanctioned under Section 45 of the NIT Act.

11.11 It is also required to be noted that even the land owners/developers have got the layout plan sanctioned and obtained the buildingpermission under the provisions of the MRTP Act. Considering the objectDand purpose of the MRTP Act noted hereinabove, it appears that thoughthere was a provision for internal 15 metres road in the Scheme underthe NIT Act which was sanctioned in the year 1964, thereafter muchdevelopment had taken place and there are changed circumstances. Inthe Development Plan/revised Development Plan the existing road cameto be widened from 12 metres to 24 metres and, therefore, when the DPEwas prepared and sanctioned under the MRTP Act, there was no proposalfor 15 metres internal wide road. As discussed hereinabove, theDevelopment Plan prepared and sanctioned under the MRTP Act wouldoverride the TP Scheme. As observed hereinabove, there cannot beany development and/or constructionpermitted contrary to the DP PlanFunder the MRTP Act. Under the circumstances, the impugned judgmentand order passed by the High Court cannot be sustained.

11.12 A faint attempt was made on behalf of the original writpetitioners that, in the DP Plan, there was punctuated line which can besaid to be 15 metres internal road from Abhyankar Road. However, onGconsidering the part plan of sanctioned Development Plan of NagpurCity sanctioned by Notification dated 10.09.2001 (upon which the reliancehas been placed by the original writ petitioners), the aforesaid cannot beaccepted. As rightly contended on behalf of the NIT, the punctuatedlines are described as Mouza Boundary/NIT Scheme Boundary. It is tobe noted that even the HighCourt noted that there is a conflict betweenH

the DP Plan and the Scheme sanctioned under Section 45 of the NITAct.

11.13 Even the findings recorded by the High Court that the actionof the NIT in sanctioning the layout plan and granting building permit ismischief of law, cannot be accepted. The layout plans are sanctionedand the building permit has been granted absolutely in consonance withthe DPsanctioned under the MRTP Act. The demolition notices werereceived pursuant to and in furtherance of the building permit and so asto enable the original land owners/developers to put up the constructionas per the layout plan sanctioned and the building permit granted.Therefore, the High Court has erred in holding that the action of the NITwas mischief in law.

11.14 It is required to be noted that, on one hand, the High Courthas specifically observed in paragraph 86 that the High Court has notset aside and it is also not necessary for the High Court to set aside thelayout plan and the building permit granted by the NIT, the observationsmade by the High Court in paragraph 89(2) would tantamount to virtuallyquashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observationsmade by the High Court in paragraph 89(2), the observation made bythe High Court in earlier part of the judgment virtually restrains the originalland owners/developers not to put up any construction on the buildinglayout plan and the building permit granted under the MRTP Act.Therefore, it appears that though not specifically quashing and settingaside the sanctioned layout plan and the building permit granted underthe MRTP Act, the High Court has nullified the sanctioned layout planand the building permit granted under the MRTP Act.

11.15 It is also required to be noted that the dispute is pendingsince many years. The land owners/developers entered into compromisewith other similarly situated tenants. Now, only 18 tenants are opposingthe development, though the land owners/developers have agreed andare ready and willing to give similar treatment to them also which wouldbe given to other tenants as agreed before this Court. It appears that forsome reasons and/or to pressurize the land owners/ developers to givethem some more benefits, the original writ petitioners are opposing thedevelopment/construction. Though the original land owners/developersare having the building permission and have got their plans sanctionedunder the provisions of MRTP Act and even after incurring huge A

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Aexpenses, they are not in a position to put up any further constructionbecause of the pending litigation. Therefore, the equity would also be infavour of the appellants as land owners/developers. As, at this stage, itis required to be noted that even those tenants with whom the originalland owners/developers have entered into a compromise before this Courthave appeared through the Advocate and have stated that they are outBof possession since last more than ten years and therefore, they all haverequested to quash and set aside the impugned judgment and order passedby the High Court and permit the land owners/developers to completethe construction.

11.16 Insofar as the submission made by the learned counselCappearing on behalf of the original writ petitioners that after the impugnedjudgment and order passed by the High Court, the NIT has modified theScheme as permitted by the High Court and, therefore, the impugnedjudgment and order passed by the High Court is acted upon and, therefore,the impugned judgment and order passed by the High Court may not beDpermitted to be challenged by the NIT and/or the developer is concerned,the same has no substance. Merely because to avoid any further legalcomplication, if the NIT has modified the Scheme that would not precludethe NIT and/or the original land owners/developers to challenge theimpugned judgment and order.

E11.17 In view of the above submissions and for the reasons statedhereinabove, the impugned judgment and order passed by the High Courtdeserves to be quashed and set aside.

TRANSFERRED CASE © No.23/2018:

12. Now, so far as the Transferred Case © No.23/2018 isFconcerned, the Writ Petition filed by the original writ petitioners beingWrit Petition No.5005 of 2017 has been transferred to this Court pursuantto the order passed by this Court dated 03.11.2017. In the petition, theoriginal writ petitioner have prayed to quash and set aside the Notificationdated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167Gdated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by whichthe original Scheme of 1964 sanctioned under Section 45 of the NIT Acthas been modified in exercise of power under Section 45 of the NIT Actand the 15 metres internal road has been deleted.

12.1 It is vehemently submitted on behalf of the original writpetitioners that the Notification modifying the Scheme and deleting 15metres internal road is without following any procedure as required underthe Act and without inviting any objections and even the approval of theState Government has not been obtained. However, considering thecontents of the counter affidavit filed on behalf of the NIT in which it isspecifically stated that after considering the objections sent by the 15writ petitioners in Petition No.2017, the Authority unanimously passed aBoard Resolution in exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to thepetitioners. The decision to modify the Scheme by deleting 15 metresinternal road has been taken after considering the objections raised bythe writ petitioners. It is required to be noted that Section 39 of theMRTP Act mandates the Planning Authority to vary the Scheme in linewith the Development Plan sanctioned under the MRTP Act. It is requiredto be noted that when the DP was sanctioned, without any proposal forthe 15 metres internal road, first in the year 1976 and thereafter in theyears 1989 and 2001, the same was after following the due procedureand the same was approved and sanctioned by the State Government.Therefore, thereafter, when the Scheme to the extent in conflict withthe DP Plan has been modified as mandated under Section 39 of theMRTP Act, after considering the objections raised by the original writpetitioners, thereafter, the same cannot be said to be illegal. Therefore,reading Section 39 of the MRTP Act and the provisions of the NIT Actharmoniously, the impugned Notification modifying the Scheme and/orBoard Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned underthe MRTP Act, the same cannot be said to be illegal warrantinginterference of this Court. Therefore, challenge to the Notification dated21.04.2017 issued by the NIT and the respective NIT Resolutionmodifying the Scheme deleting 15 metres internal road fails.

13. In view of the above and for the further reasons stated above,all the respective Civil Appeals except Civil Appeal arising from SLP(C)No. 38036/2016 are hereby allowed and the impugned judgment andorder dated 15.09.2016 passed by the High Court of Bombay, Bench ofNagpur passed in Writ Petition No.2695 of 2015 is hereby quashed andset aside. Civil Appeal arising from SLP(C) No. 38036/2016 (M/s Gaysonsvs. Nagpur Improvement Trust) stands dismissed.

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A13.1 The Transferred Case © No.23/2018 stands dismissed forthe reasons stated hereinabove.

However, it is observed that to the respective original writpetitioners shall also be given the same treatment as would be available/given to other tenants as agreed before this Court and/or as per theBsettlement entered into with other tenants.

14. All these appeals except Civil Appeal arising from SLP(C)No. 38036/2016 are allowed accordingly with the above observations .Civil Appeal arising from SLP(C) No. 38036/2016 (M/s. Gaysons (M/sGaysons vs. Nagpur Improvement Trust) and the Transferred Case standdismissed. There shall be no order as to costs.

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Matters disposed of.

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