Bombay High Court
Atmaram S/O Pinjomal Vazirani vs Nagpur Municipal Corporation on 19 November, 2010
Author: B.P. Dharmadhikari
Bench: B. P. Dharmadhikari, Prasanna B. Varale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 1980, 1984 and 1989
OF 2010.
.........
WRIT PETITION No. 1980/2010.
1. Atmaram s/o Pinjomal Vazirani,
aged about 58 years, Occ : Business,
r/o. Shree Heera Sweets, NMC House,
No.127, Ward no.45, Old Bhandara
Road, Nagpur - 440002.
2. Chandrashekhar s/o Jhanaklal Saipuriya,
aged about 72 years, Occ : Business,
r/o. Ashish Metals, NMC House
No.150, Ward no.30, Old Bhandara
Road, Nagpur - 440002.
3. Mahendra s/o Sudam Tadghare,
aged about 55 years, Occ : Business,
r/o. Mahendra Jwellery, NMC House
No.152, Ward no.30, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
4. Jeoomal s/o Gurudasmal Manshani,
aged about 55 years, Occ : Business,
r/o. Gurugovind Singh Fabrics, NMC House
No.124, Ward no.45, Ganjakhet Chowk, Old Bhandara
Road, Nagpur - 440002.
5. Pooja w/o Vijaykumar Chelwani,
aged about 40 years, Occ : Business,
r/o. Sunder Hosiery, NMC House
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No.117, Ward no.45, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
6. Tulsi s/o Seoomal Vaswani,
aged about 45 years, Occ : Business,
r/o. NMC House No.137
Ward no.30, Ganjakhet Chowk,
Old Bhandara Road, Nagpur - 440002.
7. Mohamed Fahim s/o Ajij Khan,
aged about 50 years, Occ : Business,
r/o. Fahim Opticals, NMC House
No.118/B, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
8. Mukesh s/o Jivatram Vazirani,
aged about 32 years, Occ : Business,
r/o. c/o. Bhagwan Fabrics, NMC House
No.137/A/2, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
9. Parmanand s/o Lekhumal Khushalani,
aged about 53 years, Occ : Business,
r/o. Vijay paper Mart, NMC House
No.137/C, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
10. Nasruddin s/o Alibhai Sumar,
aged about 54 years, Occ : Business,
r/o. K. Abdul Malik and Co., NMC House
No.126, Ward no.45, Ganjakhet,
Old Bhandara Road, Nagpur - 440002.
11. Mahesh s/o Shyamramji Bhute,
aged about 48 years, Occ : Business,
r/o. Mahesh Photo Studio, NMC House
No.155, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
12. Ashok s/o Laxmandas Krishnani,
aged about 57 years, Occ : Business,
r/o. Laxmandas Thawardas, NMC House
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No.134, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
13. Baldev s/o Chetumal Kewalramani,
aged about 50 years, Occ : Business,
r/o. C/o. Heera Sweets, NMC House
No.157/A6, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
14. Prabhudas s/o Jagjivandas Dhorajiwala,
aged about 62 years, Occ : Business,
r/o. Dhorajiwala Misthan Bhandar, NMC House
No.129, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
15. Rajesh s/o Chandrabhan Kataria,
aged about 39 years, Occ : Business,
r/o. Gajanan Dresses, NMC House
No.156/A, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
16. Anil s/o Mahadeo Borker,
aged about 45 years, Occ : Business,
r/o. A.K, Enterprises, NMC House
No.153, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
17. Nandlal s/o Mathuradas Makhija,
aged about 63 years, Occ : Business,
r/o. Paradise Hosiery, NMC House
No.127/A and 127/C, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
18. Dilip s/o Pralhad Agrawal,
aged about 38 years, Occ : Business,
r/o. Amita Garment, NMC House
No.131, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
19. Ashokumar s/o Arjundas Sevlani,
aged about 54 years, Occ : Business,
r/o. Hindustan Textiles, NMC House
No.162, Ward no.30,
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Old Bhandara Road, Nagpur - 440002.
20. Hiralal s/o Notandas Kataria,
aged about 65 years, Occ : Business,
r/o. Shankar Hosiery, NMC House
No.163, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
21. Gurbax s/o Pinjomal Vazirani,
aged about 64 years, Occ : Business,
r/o. c/o. Packmate, NMC House
No.156, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
22. Chandrabhan s/o Chelaram Kataria,
aged about 61 years, Occ : Business,
r/o. Laxmi Hosiery, NMC House
No.130, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
23. Harish s/o Ramchandra Karmani,
aged about 35 years, Occ : Business,
r/o. Mukesh Collection/Riya Fabrics, NMC House
No.130, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
24. Khemchand s/o Nandlal Kukreja,
aged about 42 years, Occ : Business,
r/o. Hariom Garments, NMC House
No.133, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
25. Mukesh s/o Motaram Manshani,
aged about 37 years, Occ : Business,
r/o. Sindh Traders, NMC House
No.111, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
26. Smt. Savitri s/o Motaram Manshani,
aged about 55 years, Occ : Business,
r/o. Sindh Hosiery, NMC House
No.118, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
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27. Vijay s/o Nagoraoji Patil,
aged about 36 years, Occ : Business,
r/o. Patil Jwellery, NMC House
No.151, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
28. Gyanchand s/o Virumal Kodwani,
aged about 52 years, Occ : Business,
r/o. Veena S. Agencies, NMC House
No.151/A, Ward no.30,
Old Bhandara Road, Nagpur - 440002.
29. Kamal s/o Murlidhar Adwani,
aged about 35 years, Occ : Business,
r/o. Bharat Garments, NMC House
No.120, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
30. Smt. Babita w/o Shankerlal Chelwani,
aged about 36 years, Occ : Business,
r/o. Mahesh Hosiery, NMC House
No.116, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
31. Harish s/o Sevaram Hasani,
aged about 55 years, Occ : Business,
r/o. Shri Ganesh Textiles, NMC House
No.135, Ward no.45,
Old Bhandara Road, Nagpur - 440002.
32. Prakash s/o Hariram Daswani,
aged about 41 years, Occ : Business,
r/o. NMC House No.158,
Ward no.30, Ganjakhet,
Old Bhandara Road, Nagpur - 440002.
33. Manoharrao s/o Wasudeorao Motghare,
aged about 70 years, Occ : Business,
r/o. NMC House No.143,
Ward no.30, Ganjakhet chowk,
Old Bhandara Road, Nagpur - 440002.
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34. Amar s/o Rochaldas Khemani,
aged about 35 years, Occ : Business,
r/o. Amar Garments, NMC House
No.149/C, Ward No.30,
Old Bhandara Road, Nagpur - 440002.
35. Rajesh s/o Brijkisho Gupta,
aged about 50 years, Occ : Business,
r/o. NMC House No.118/A,
Ward no.45, Old Bhandara Road, Nagpur - 440002.
36. Rakesh s/o Chunnilal Agrawal,
aged about 55 years, Occ : Business,
r/o. A.K.Sales Corp. NMC House
No.1024, Ward no.47,
Old Bhandara Road, Nagpur - 440002.
37. Smt. Kamlesh w/o Rakesh Agrawal,
aged about 50 years, Occ : Business,
r/o. M/s. Firozabad Bengales House, NMC House
No.976, Ward no.49,
Old Bhandara Road, Nagpur - 440002. ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
WITH
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WRIT PETITION No. 1984/2010.
1. Atikabai w/o Taher Bhai Hussain,
aged about 80 years, Occ : Housewife,
r/o. Old Bhandara Road, Itwari, Nagpur.
2. Govindlal s/o Totaram Khungar,
aged about 70 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
3. Ashok s/o Shankarlal Tiwari,
aged about 52 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
4. Jaichand s/o Uttamchand Jain (Modi)
aged Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
5. Kusum w/o Hiraman Khanorkar,
aged Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
6. Manoj s/o Mahipal Jain,
aged about 4 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
7. Darbarilal s/o Kapurchand Jain,
aged major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
8. Ramesh Kumar s/o Kapurchand Jain,
aged major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
9. Pradeep Kumar s/o Gulabchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
10. Anil Kumar s/o Bhagchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
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11. Chetan s/o Natwarlal Patel,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
12. Shabbirbhai s/o Gulam Abbas Patangwala,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
13. Sukhanand s/o Shikharchand Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
14. Girish s/o Gulabchand Agrawal (Liladiya),
aged about 41 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
15. Ankit s/o Munnalal Jain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
16. Munnalal s/o Khupchand Jain,
aged about 41 years, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
17. Mujjaffar Hussain,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
18. Govardhan s/o Ramchandra Lakhotia (Daga),
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
19. Babarao s/o Ganpatrao Katole,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
20. Ali Akbar Hajimulla Bande,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
21. Deepak s/o Shantilal Doshi,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
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22. Bhavna w/o Rajesh Ahuja,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
23. Pradeep s/o Thakordas Topiwale,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
24. Taha Akhtar Hamja Bhai,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
25. Shabbir Ahamad Khan,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
26. Shalini w/o Nilesh Maundekar,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
27. Hiren s/o Bhadrasen Diwecha,
aged about major, occ - Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
28. Kishore s/o Gangaram Ahuja,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
29. Roshan s/o Gyanchand Chawla,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
30. Shantaram s/o Bhaurao Rambhad,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
31. Hasan s/o Abdullabhai Mohd. Bohri,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
32. Vimal Kumar s/o Dharamchand Jain,
aged about major, Occ : Business,
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r/o. Old Bhandara Road, Itwari, Nagpur.
33. Manohar s/o Girdharilal Saharamani,
aged about major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
34. Bhikamchand s/o Pannasav Jain,
aged about major, Occ : Business, ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
WITH
WRIT PETITION No. 1989/2010.
1. Jai Kumar Modi,
aged about major, Occ : Business,
r/o. House No.581/A, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
2. Vinay s/o Gulabchand Jain,
aged about major, Occ : Business,
r/o. House No.679, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
3. Sharad Kumar s/o Jamnalal Agrawal,
aged about major, Occ : Business,
r/o. House No.588, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
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4. Mohnesh I. Patel,
aged about Major, Occ : Business,
r/o. Old Bhandara Road, Itwari, Nagpur.
5. Ishwarlal B. Patel,
aged about Major, Occ : Business,
r/o. House No.700, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
6. Shri Govindrao Ramchandra Hatwar,
aged about major, Occ : Business,
r/o. House No.648, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
7. Chhotelal Nanhelal Jain,
aged about major, Occ : Business,
r/o. House No.659, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
8. Indarchand Ramswaroop AGrawal,
aged about major, Occ : Business,
r/o. House No.612, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
9. Vijaya Ben Maganlal Sanghavi,
aged about major, Occ : Business,
r/o. House No.656, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
10. Gulabrao Motilal Lad,
aged about major, Occ : Business,
r/o. House No.589, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
11. Fulchand Nanhelal Jain,
aged about major, Occ : Business,
r/o. House No.679, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
12. Chandrakant Balwantraoji Gillurkar,
aged about major, Occ : Business,
r/o. House No.646, Ward No.44,
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r/o. Old Bhandara Road, Itwari, Nagpur.
13. Ramesh Chand Jain,
aged about major, Occ : Business,
r/o. House No.607, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
14. Vijay Kumar Agrawal,
aged about major, Occ : Business,
r/o. House No.653, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
15. Praful Chand Jain,
aged about major, Occ : Business,
r/o. House No.587, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
16. Subhash Lalchand Modi,
aged about major, Occ : Business,
r/o. House No.658, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
17. Manish Kumar Shashank Shekhar Jain,
aged about major, Occ : Business,
r/o. House No.658, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
18. Satish Lalchand Modi,
aged about major, Occ : Business,
r/o. House No.301/A, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
19. Sudhir Madhaorao Chandpurkar,
aged about major, Occ : Business,
r/o. House No.608, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
20. Umesh H. Parekh,
aged about major, Occ : Business,
r/o. House No.690, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
21. Sunil Madhao Chandpurkar,
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aged about major, Occ : Business,
r/o. House No.651, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
22. Ata Hussain,
aged about major, Occ : Business,
r/o. House No.703/A, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
23. Narayan Manoharrao Kawde,
aged about major, Occ : Business,
r/o. House No.681/A, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
24. Bhajanlal Tekamdas Kandhari,
aged about major, Occ : Business,
r/o. House No.707, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
25. Nirmala Mohanlal Kandhari,
aged about major, Occ : Business,
r/o. House No.684, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
26. Prakash Chaturmal Ahuja,
aged about major, Occ : Business,
r/o. House No.319B, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
27. Ramesh Chootalal Mehta,
aged about major, occ - Business,
r/o. House No.708, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
28. Purushottam Gulabchand Gupta,
aged about major, Occ : Business,
r/o. House No.341, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur.
29. Tulsiram Ramkrishna Bokde,
aged about major, Occ : Business,
r/o. House No.708B, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
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30. Ali Akbar Yusuf Ali,
aged about major, Occ : Business,
r/o. House No.662, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
31. Harish Sewaram Ahuja,
aged about major, Occ : Business,
r/o. House No.675, Ward No.44,
r/o. Old Bhandara Road, Itwari, Nagpur.
32. Vishnu Pandurangji Katole,
aged about major, Occ : Business,
r/o. House No.604, Ward No.31,
r/o. Old Bhandara Road, Itwari, Nagpur. ....PETITIONERS.
VERSUS
1. Nagpur Municipal Corporation,
through the Municipal Commissioner,
Civil Lines, Nagpur.
2. The Executive Engineer (Projects)
Nagpur Municipal Corporation,
Gandhibagh Zone (Mahal),
Nagpur. ....RESPONDENTS
.
------------------------------
Mr. M.G. Bhangde, Senior Advocate
with Shri R.M. Bhangde, Advocate for Petitioners.
Mr. C.S. Kaptan, Advocate for Respondents.
-------------------------------
CORAM : B.P. DHARMADHIKARI
AND P.B. VARALE, JJ.
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15
Date of reserving the Judgment. - 15th October, 2010.
Date of Pronouncement. - 19th November, 2010.
JUDGEMENT. (Per B.P. Dharmadhikari, J)
1. This challenge to identical notices issued under Section 56 of Maharashtra Regional and Town Planning Act,1966 (hereinafter referred to as "MRTP Act" for short), needs to be viewed in the background of earlier order dated 31/3/2010 passed by us in Writ Petition Nos. 1403,1408, 1415 and 1521 of 2010. Challenge therein was also to these notices only. Nagpur Municipal Corporation is the planning authority which has issued those notices to widen Bhandara road from 9 meters to 18 meters as prescribed in Development plan. Said notices are of different dates like 13/1/2010, 22/1/2010, 3/3/2010 and 10/3/2010. Prayers in Writ Petitions are to declare that provisions of Section 56 are not applicable when land of citizen is reserved for public purpose in Development Plan and is required for by planning authority to achieve said purpose, to hold that judgment of this Court in Kishor N. Lulla Vs.State of Maharashtra and Ors. - 2008 (8) LJSOFT 155= 2008(4) Bom.C.R. 478, is per incurium, to declare said notices discriminatory and arbitrary as contrary to planning authorities own statements recorded by this Court in 2006 while considering issue of Kradack ::: Downloaded on - 09/06/2013 16:37:43 ::: 16 Road widening and in 2005 about Kelibag Road Widening and to quash said notices. On 28/4/2010, We issued notice and directed parties to maintain status-quo which continues to operate till date.
2. We have heard Shri M.G. Bhangade, learned Senior Counsel with Shri R.M. Bhangde, learned Counsel for petitioners and Shri C.S. Kaptan, learned Counsel for Respondents.
3[A] Learned Senior Counsel points out that all petitioners before this Court are owners of commercial structures on existing Bhandara road and their structure and source of livelihood gets affected if its width is increased to 60 feet from 30 feet. Attention has been drawn to our earlier orders dated 31/3/2010 in Writ Petition No. 1403 of 2010 and other connected matters and it is urged that the petitioners then made inquiries and gathered that similar notices issued by respondents were then indirectly given up by them before this Court by stating that they would proceed in accordance with law on the subject. Said notices dated 14/12/2005 issued to Kradac Road and dated 17/10/2005 to Kelibag road occupants with orders of this Court in Writ Petitions challenging the same are pressed into service to urge discriminatory treatment now extended to these petitioners by alleged denial to them same treatment. It is urged that these facts and developments were not placed by respondents for consideration on 31/3/2010 and as petitioners were ::: Downloaded on - 09/06/2013 16:37:43 ::: 17 unaware, they could not also bring it to the knowledge of this Court at that juncture. Hence, orders dated 31/3/2010 can not and even otherwise, do not clinch the controversy here.
3[B]. The representation dated 19/4/2010 by petitioners to respondents is relied upon support plea of fraud, discrimination and arbitrariness. In this backdrop, effort is being made to rebut preliminary objection raised by respondents about availability of alternate remedy of appeal by pointing out that the judgment of learned Single Judge in Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) is binding upon the Appellate Authority. Contention is petitioners effort before this Court is to demonstrate that law laid down on Section 56 by this Court in said judgment is not correct and hence, direct approach to this Court is the only efficacious remedy.
3[C]. Learned Senior Counsel Shri M.G. Bhangde reads out the impugned notice under Section 56 of MRTP Act to show various directions contained therein with comment that even if, it is fully complied with the desired end of road widening is not achieved. He further states that wrong printing of head-note of Section 56 creates some confusion but then bare reading is enough to grasp its true purpose. It is only a power available when its exercise fructifies into compliance with development plan and no further positive step is warranted. It certainly does not divest the occupier either of ::: Downloaded on - 09/06/2013 16:37:43 ::: 18 his title or possession over such property. It also provides a mechanism for payment of compensation for discontinuance of user and such user to qualify for price from public exchequer, has to be legal one and not unauthorized one. Offer for 100% TDR (transferable development rights) is stated to be possible only as per Section 126 (1)(b) of MRTP Act. As the lands or plots of petitioners are not being acquired, public road can not be constructed on it and width of Bhandara road can not get widened. As fundamental right to earn livelihood and constitutional right to property is being taken away highhandedly, the alleged bar of alternate remedy is not attracted. Section 126 of MRTP Act is the only power available here and by issuing impugned notices and invoking Section 56 to validate it, respondents are playing fraud on statute. It is further urged that in any case, even if both powers are imagined to be open, law compels respondents to invoke that remedy which exposes citizen to less evil effects.
3[D]. Reply filed by respondents taking incorrect stand about title of petitioners and alleging them to be encroacher and its later withdrawal is acridly commented upon as indicative of malice and unfairness. It is urged that such important notice was for the first time attempted to be justified before this Court by using Section 56 and when in present Writ Petitions, there is specific assertion that notices as issued are not under Section 56 and respondents are not proceeding under it, the respondents have not denied it.
::: Downloaded on - 09/06/2013 16:37:43 ::: 19No records are produced before this Court to show any decision reached by them in this respect. The assertion is reiterated in rejoinder by petitioners and still, respondents have avoided to meet it.
3[E] By relying upon (2005) 11 SCC 232-- (Raju S. Jethmalani and Others vs. State Of Maharashtra and others), it is contended that the respondents can not deprive petitioners of their lands or its user without acquiring it as per law. To point out impropriety of alternate remedy of filing an appeal under Section 56 (2), (1985) 4 SCC 404-- (M/s Onkarlal Nandlal vs State Of Rajasthan) is relied. At least 3 categories indicated by Hon'ble Apex Court in which direct interference is not barred are pressed into service vide (2007) 10 SCC 88 - (M.P. State Agro Industries Development Corporation vs. Jahan Khan). (1985) 3 SCC 545 - (Olga Tellis vs. Bombay Municipal Corporation) is pressed in to service with contention that cases of violation of fundamental rights like illegal deprivation of source of income warrant direct intervention of this Court. Division Bench judgment of Hon'ble Allahabad High Court reported at AIR 1996 Allahabad 187 - (Sri Nath Educational Society, Sirsa vs. State of U.P). is also cited to canvass that alternate remedy is no bar when breach is of Article 14 or Article 300A. Contention that respondents are committing fraud on statute and Section 56 of MRTP Act is being abused is sought to be supported by Shrisht Dhawan vs. M/s Shaw Brothers-- (1992) 1 SCC 534. (1984)4 SCC 612 - (Jiwani Kumar Paraki vs. ::: Downloaded on - 09/06/2013 16:37:43 ::: 20 First Land Acquisition Collector, Calcutta) is relied upon to urge that even if Sections 126 and 56 both are presumed to be available, still one which causes less inconvenience to petitioners needs to be resorted to.
4[A] Shri C.S. Kaptan, learned Counsel appearing on behalf of respondents pointed out that in earlier Writ Petitions decided on 31/3/2010 this Court (We) found that impugned notices were under Section 56 of MRTP Act and hence that issue is no longer open. The petitioners therefore have an alternate and equally efficacious remedy by way of an appeal under Section 56(2) thereof. He has relied upon the scheme of Chapter IV in which Sections 43 to 58 appear to explain how recourse to Section 56 is valid. According to him when Section 56 is read with Section 49, power to purchase with power to work out appropriate compensation for loss of title or loss of possession is also apparent. He emphasizes use of word "depreciation" to support his argument. Hence, Section 126 is not at all relevant in scheme of Chapter IV and respondent has option either to invoke Section 56 or then Section 126.
4[B] He also invites attention to orders passed in earlier Writ Petitions while considering widening of Kradack Road or Kelibag Road to demonstrate to this Court that same are based on concessions made and does not resolve the controversy. Said orders recording statements do not lay down any law in this regard. One of the Advocates appearing for these petitioners in matters ::: Downloaded on - 09/06/2013 16:37:43 ::: 21 decided on 31/3/2010 also represented occupants of Kradack or Kelibag road and was aware of orders of this Court in those petitions. He could have pointed out the same to this Court on 31/3/2010 and there is no substance in contention of any suppression or fraud.
4[C] He also supports observations of learned Single Judge in Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) to urge that there the question had arisen and a view against these petitioners is already recorded.
The effort by them to distinguish it here is without any merit and also legally barred. MRTP Act itself balances rights of an individual with public good and hence, in public interest only the legislature has made a provision like Section 56 to meet the exigencies. Hence, there is no question of weighing consequences of an action under Section 126 with one under Section 56. He therefore sought dismissal of Writ Petitions.
5. Shri Bhangde, learned Senior Counsel has urged that purpose of Section 56 is not to divest a citizen of his ownership or possession. Unless and until petitioners are deprived of their ownership, plots can not vest in planning authority and become available for road widening. Section 126 of MRTP Act is the only remedy therefor and here without taking those steps, malafide work order is also issued to contractor. This plea of issuance of work order is not even denied by the respondents.
::: Downloaded on - 09/06/2013 16:37:43 ::: 226[A] Before proceeding to deal with objection about availability of alternate remedy, We find it suitable to reproduce Section 56 itself. Section 56 of the MRTP Act has been in most of the books and texts given a wrong heading implying that it is power to remove an "unauthorized development".
However, before us it is not in dispute and Counsel agree that the correct heading is " Power to require removal of authorized development or use."
Said Section reads :-
" Section 56 - Power to require removal of authorized development or use .
(1) If it appears to a Planning Authority that it is expedient in the interest of proper planning of its areas (including the interest of amenities) having regard to the Development plan prepared,--
(a) that any use of land should be discontinued, or
(b) that any conditions should be imposed on the continuance thereof, or
(c) that any buildings or works should be altered or removed, the Planning Authority may, by notice served on the owner,
(i) require the discontinuance of that use; or
(ii) impose such conditions as may be specified in the notice on the ::: Downloaded on - 09/06/2013 16:37:43 ::: 23 continuance thereof; or
(iii) require such steps, as may be specified in the notice to be taken for the alteration or removal of any buildings or works, as the case may be;
within such period, being not less than one month, as may be specified therein, after the service of the notice.
(2) Any person aggrieved by such notice may, within the said period and in the manner prescribed, appeal to the State Government.
(3) On receipt of an appeal under sub-section (2), the State Government or any other person appointed by it in this behalf may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, dismiss the appeal or allow the appeal by quashing or varying the notice as it may think fit.
(4) If any person,--
(i) who has suffered damage in consequence of the compliance with the notice by the depreciation of any interest in the land to which he is entitled or by being disturbed in his enjoyment of the land or otherwise; or
(ii) who has carried out any works in compliance with the notice, claims, from the Planning Authority, within the time and in the manner prescribed compensation in respect of that damage, or of any expenses reasonably incurred by him for complying with the ::: Downloaded on - 09/06/2013 16:37:43 ::: 24 notice, then the provisions of sub-sections (2) and (3) of section 51 shall apply in relation to such claim as those provisions apply to claims for compensation under those provisions.
(5) If any person having interest in land in respect of which a notice is issued under this section claims that by the reason of the compliance with the notice, the land will become incapable of reasonably beneficial use, he may within the period specified in the notice or within such period after the disposal of the appeal, if any, filed under sub-section (2) and in the manner prescribed, serve on the State Government a purchase notice requiring his interest in the land to be acquired; and thereupon, the provisions of section 49 for dealing with a purchase notice shall so far as can be made applicable, apply as they apply to a purchase notice under that section."
Bare looking at it shows that validity of a notice issued thereunder can be challenged on all grounds in appeal under its sub-section 2. But then contention before us is in present facts mere directions to undo something does not result in proper planning or in furthering it. There is no direction to petitioners to construct a road on portion of their plots and there can not be any such direction under Section 56. Direction at the most is to discontinue existing user of part of their plot and to remove building/structure already standing in it. It may be covered by either Section 56(1)(a) or (c).
Compliance therewith by itself does not further the object of road-widening ::: Downloaded on - 09/06/2013 16:37:43 ::: 25 in as much as planning authority can not ask citizens to construct road for public on their private properties and to allow general public to use it.
Planning authority itself can not spend from public exchequer on road widening till title or possession is legally transferred to it with right to construct. We are required to consider the purpose of Section 56 little later again but then suffice it to say that for considering the bar of alternate remedy, its non-availability here assumes significance.
6[B]. In Kishor N. Lulla Vs.State of Maharashtra and Ors.,(supra) the question either of interpretation and extent or purpose of Section 56 of MRTP did not fall for serious consideration at all. Petitioner owner had already given notice for computation of damages because of changes proposed in the notice. The petitioner there had also filed appeal under Section 56(2) and then did challenge the order passed by the Appellate authority viz., State of Maharashtra dated 13th June 2007 confirming notice under Section 56 under Article 227 of the Constitution of India. Ulhasnagar Municipal Corporation invoked section 56 and notice stated that the Chief Officer of the erstwhile Municipal Council had approved the plan for additions and alterations on 20th January 1972 on ground plus upper floor structure. The report of the Junior Engineer referred to in the notice stated that the petitioner was authorized to use the property to the extent indicated therein. The sanctioned development plan came into effect from 1st July 1974 and having regard to ::: Downloaded on - 09/06/2013 16:37:43 ::: 26 the said plan, petitioner's property as described in the notice got affected by the designated purpose of 35 feet wide road. In such circumstances, his authorized use in his property as per building plan was found to offend the provisions of sanctioned Development plan of 1974. It was alleged to be expedient in the interest of proper planning of said 35 feet public street that the use of his land for commercial purpose be discontinued and the ground plus upper floors be removed. The notice stated that in case of failure to comply therewith, the Corporation would be constrained to remove the structure at its cost. Counsel for petitioner there had contended that the petitioner's user of the property being termed as authorized, there was no question of removal the building. Section 56 was urged to have no application to the facts inasmuch as what was affected by the alleged designation in the development plan was the land and its user and merely to avoid obligation to acquire the land and pay the market price that the Corporation resorted to the Section 56 and the notice. Further, the appellate authority referred to the extent of the user and termed the construction to a certain extent as unauthorized and without any permission. This Court recorded that the said notice was not contrary to law and that Section 56 had application to the facts before it. Petitioner then sought time of three months to comply with the notice and also to serve notice under Section 56(4) and (5). This Court also noticed that petitioner had already served such notice upon State Government. Its observations in para 8 are important and it shows that larger ::: Downloaded on - 09/06/2013 16:37:43 ::: 27 public interest ultimately tilted the balance. The notice action there appears to be against an individual. Section 56(5) was found sufficiently safeguarding his interest. Thus in facts before it and in the light of arguments advanced, the issues was examined to a limited extent and petitioner owner was satisfied with it. May be as he had already served notice claiming compensation. The challenge was not seriously pressed and correct head-
note of Section 56 or its peculiar scheme was not required to be looked into in detail. It can not be therefore said that this Court there was called upon to lay down any law for general/universal application. We have to refer to this aspect again in this judgment. But then such an application of mind by appellate authority qua said view of this Court is not expected and it concludes the issue in so far as appellate forum is concerned.
6[C]. In M/s Onkarlal Nandlal vs State Of Rajasthan, Hon'ble Apex Court holds that it would have ordinarily insisted on the assessee going through this hierarchy of judicial process and declined to entertain the petition for special leave directly against the order of assessment made by the Commercial Tax Officer. But admittedly, as the High Court in another case had already taken the view that when a resale is made by an assessee which is in the course of interstate trade or commerce, it cannot be regarded as a resale within the State and hence such resale would constitute a breach of the Declaration given by the assessee to the selling dealer and the purchase price ::: Downloaded on - 09/06/2013 16:37:43 ::: 28 paid by the assessee would consequently be liable to be included in the taxable turnover of the assessee. It was therefore, found futile to drive the assessee to file the appeal and revision and then a Writ Petition to the High Court.
In M.P. State Agro Industries Development Corporation vs. Jahan Khan where the penalty order impugned in the writ petition was appelable in terms of the service regulations but as that order was found per-se illegal being violative of the principles of natural justice, Hon'ble Apex Court held that it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent. Hon'ble Apex Court reiterated that the rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely -- (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.
Hon'ble Apex Court in Olga Tellis vs. Bombay Municipal Corporation (supra) also show that cases of violation of fundamental rights like illegal deprivation of source of income may warrant direct intervention of ::: Downloaded on - 09/06/2013 16:37:43 ::: 29 this Court.
Division Bench judgment of Hon'ble Allahabad High Court in Sri Nath Educational Society, Sirsa vs. State of U.P. also reveals that alternate remedy is no bar when breach is of Article 14 or Article 300A. Here also there is view of learned Single Judge of this Court which binds the appellate authority. The impugned directions, if complied with, deprive petitioners of possession and title to commercial properties. Effort before us to demonstrate violation of Article 14, 21 and 300A of the Constitution of India. We, therefore do not find any substance in preliminary objection about availability of alternate remedy to the petitioners.
7[A]. Next question to be decided is whether We have concluded the law on the applicability of Section 56 in present matter in our earlier orders dated 31/3/2010. When a judgment can be construed as laying down any law to amount to a binding precedent needs to be viewed first. We may point out that Full Bench of this Court in 2008 (4) Mah.L.J. 843- (Emkay Exports and anr. Vs. Madhusudan Shrikrishna) has explained in paragraphs 11, 25 and 12 to 16 the law on the point of precedent and ratio decidendi. Hon'ble Full Bench holds that even for a precedent to be binding, it cannot be without judicial decision or arguments that are of no moment. In order to apply a judgment as a precedent, the relevant laws and earlier judgments should be brought to the notice of the court and they should be correctly applied. There ::: Downloaded on - 09/06/2013 16:37:43 ::: 30 are judiciously accepted exceptions to the rule of precedent and they are decisions per incuriam, subsilentio and stare decisis. These principles explain when and where a precedent, which is otherwise a good law, necessarily need not be accepted in subsequent judgments if it fully satisfies essentials of these exceptions. In the case of Commissioner of Customs (Fort) vs. Toyota Kirloskar Motor (P) Ltd., 2007 (5) SCC 371, the Hon'ble Supreme Court states the law relating to precedents and held that a decision is an authority for what it decides and not what can logically be deduced therefrom. The only thing in a Judge's decision which bind parties is the principle upon which the case is decided and for this reason it is important to analyze the decision and isolate "ratio decidendi" from it. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment. The reasoning could be deciphered upon reading the judgment in its entirety and then applying these principles to the subsequent cases.
7[B]. In Writ Petition No. 1403 of 2010 --(Jai Kumar Modi and others :vs :State of Maharashtra and others) with Writ Petition No. 1408 of 2010 -- (Atikabai Taher Bhai Hussain and others :vs :State of Maharashtra and others) with Writ Petition No. 1415 of 2010 -- (Atmaram Pinjomal Vizirani and others :vs :State of Maharashtra and others) with Writ Petition No. 1521 of 2010 -- (Aainaz Diwan Khan and others :vs :Nagpur Municipal Corpn. and another) on 31 st March, 2010, We have passed the final orders. The ::: Downloaded on - 09/06/2013 16:37:43 ::: 31 petitioners had then contended that the shop premises belonging to them or in their occupation and being used as such for last many years were sought to be high handedly demolished under the guise of road widening scheme under City Road Development Programme. The petitioners contended that unless and until the premises belonging to the petitioners were legally acquired in accordance with the provisions of law, there cannot be forcible dispossession or demolition arbitrarily. Respondents' learned counsel pointed out that the notices issued were under Section 56 of the MRTP Act, and under Section 56, Subsection(2), a remedy of filing an appeal to the State Government was available to those petitioners. According to said learned counsel no other provision needed to be resorted to for seeking removal of the affected portion of shops/structures belonging to the petitioners in view of user finalized in Development Plan and as an action in accordance with law was already taken, no interfere in the matter was warranted. Reliance was also placed on the judgment of in the case of Kishor N. Lulla Vs.State of Maharashtra and Ors.
(supra), to urge that there, in identical situation, this Court refused to interfere and permitted the owner of affected structure to move for compensation under Section 56(5) of the said Act. We find that though the learned counsel for the respondents relied upon the provisions of Section 56 of the said Act, the then respective learned counsel for the petitioners had urged that there was no reference to that provision anywhere in any of the notices issued to any petitioner. They also demonstrated that in the ::: Downloaded on - 09/06/2013 16:37:43 ::: 32 submissions filed, the said provision was not disclosed as its source.
According to them, if the property of an individual in his occupation for earning his livelihood was to be prejudicially affected, the provisions of law under which the action was sought to be taken ought to have been disclosed in notice and in pleadings, and if the statute permitted a remedy of appeal, that appellate forum also should have been mentioned. They, therefore, sought to contend that notices impugned before this Court failed to fulfill the requirements of Section 56. In the alternate and without prejudice to this contention, they also stated that as on that day for the first time before this Court the petitioners learnt that notices issued were under Section 56, time to comply with those notices should commence since that day and hence, the period during which the appeal could be filed to respondent no.1 State Government, would be computed from that day. In this background, We found notice impugned was in six parts. Section 56 was then noticed as power to require removal of unauthorized development or use. We then expressed that-- "When only notice dated 29/1/2010 is viewed in the background of these provisions, it is apparent that Section 56 can be said to form its source. However, said issue does not arise for determination at least for now before us". As respondents were not relying upon Section 126 at all it was found not necessary to look into the provisions of Section 126 of the said Act.
7[C]. We, in said order, also noted that :-- "Section 56(2) of the Act ::: Downloaded on - 09/06/2013 16:37:44 ::: 33 permitted a person aggrieved by such notice a remedy of appeal before the State Government. The scheme of Section 56 was seen gone into by the learned Single Judge in the judgment in Kishor N. Lulla Vs.State of Maharashtra and Ors.(supra) and in facts before us it was then found not necessary to again discuss the same. We have thereafter observed as under:-
"The facts, however, show that even before this Court the Planning Authority has nowhere disclosed in writing that the action taken by it is under Section 56(1). If the petitioners were informed that action proposed in the impugned notices was under Section 56(1), they could have definitely become aware of their legal rights or obligations and could have filed necessary appeal under Section 56(2) or could have taken other appropriate steps according to legal advise. In the present matter, it is apparent that as no legal provision has been indicated as a source of power, the notice has been treated only as an intimation and accordingly most of the petitioners have made representation to the notice issuing authority itself. The sum and substance of those representations is to show how the exercise of road widening is not at all warranted. It is, therefore, obvious that the objections raised by them are also not in consonance with the provisions of Section 56(2). But, they have opposed the proposed action. However, it is not necessary for this Court to conclude even this issue in the present matter."::: Downloaded on - 09/06/2013 16:37:44 ::: 34
At the end We also noted that:-- "It is apparent that the steps have been taken now and whatever steps the Planning authority initiates have to be taken in accordance with law and after giving a citizen full notice of the steps being taken, consequence thereof and the rights or remedies available to him in the matter. The
------------------this Court. Had there been a proper notice indicating the source thereof, they could have approached the competent authority with specific case and grievance. In this situation, ------------ the time given to the petitioners thereunder to comply, shall start running from today and if the petitioners are so advised, they can file appropriate appeal under Section 56(2) of the said Act before the competent forum in accordance with law within that time. In view of these observations, it is apparent that nothing more can be done in all these petitions and hence, all these writ petitions are disposed of."
7[D] When this order dated 31/3/2010 is viewed in the light of law in Full Bench judgment in case of Emkay Exports and anr. Vs. Madhusudan Shrikrishna (supra), our observations above only show an attempt made by some of the petitioners to urge that impugned notices failed to fulfill the requirements of Section 56. There were no arguments on scope or nature of power conferred by Section 56 on planning authority and We also did not record any express finding on it. We did not conclude that Section 56 was ::: Downloaded on - 09/06/2013 16:37:44 ::: 35 the source of power for impugned notices or then discuss its scheme independently. The petitioners were given liberty to act as per legal advice. All contentions were therefore kept open. Hence reliance upon said order by the respondents in this challenge is misconceived.
8. Exposition by the Full Bench of this Court in Emkay Exports and anr. Vs. Madhusudan Shrikrishna (supra) on the point of precedent and ratio decidendi is also useful here to appreciate view expressed by learned Single Judge. We have already made reference to it above in requisite details.
Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) also stands explained briefly. There the scheme or purpose of Section 56 and its impact on Section 126 or vice versa was not required to be dealt with. The dispute about availability of S. 56 for undertaking road-widening work is not an issue evaluated and examined therein. The argument of planning authority avoiding to acquire affected land was advanced but has not been answered.
Ultimately this Court recorded that the said notice was not contrary to law and that Section 56 had application to the facts before it. Said petitioner then sought time of three months to comply with the notice and also to serve notice under Section 56(4) and (5). Court also noticed that petitioner had already served such notice upon state government. Following observations made thereafter are important :--
::: Downloaded on - 09/06/2013 16:37:44 ::: 36"8. In my view, reading the notice as a whole and in the light of the development plan, it would be fair, just and proper to conclude that the planned designation will have to be implemented and for that purpose, petitioner's structure offending the same must be removed. Ultimately, by providing 35 feet wide public street, larger public interest is being served and the Corporation is obliged to implement designation and proposals in the plan and could have resorted to the legal provisions in question. Similarly, the legal provision itself takes care of the apprehension of the petitioner. If upon the notice issued under section 56 being implemented or being complied with by the petitioner, if he claims that the land itself is incapable of reasonably beneficial use, he may within the period specified in the notice or within such period after the disposal of the appeal and in the manner prescribed, serve on the State Government a purchase notice requiring his interest in the land to be acquired and thereupon section 49 comes into play. In such circumstances, the petitioner has no apprehension because his interest in the land, can be acquired after he complies with sub-section 5 of section 56 and serves requisite notice. It is -----....----- shall always follow."
Thus in facts before it and in the light of arguments advanced, the issues was answered to a limited extent and petitioner owner was ::: Downloaded on - 09/06/2013 16:37:44 ::: 37 satisfied with it as he had already served notice claiming compensation. The challenge was not seriously pressed and correct head-note of Section 56 or its peculiar scheme was not required to be looked into in detail. It can not be therefore said that this Court there was called upon to lay down any law for general/universal application. View expressed therein is circumscribed by the facts and developments presented to this Court. The said judgment of Single Bench therefore does not clinch the issue squarely before us. In any case, We can always attempt to find out the legal position in this regard. Prayer made in Writ Petitions to declare it per incurium is therefore uncalled for.
9[A]. Perusal of notice dated 14/12/2005 issued to one Tekchand Adwani for road widening work of Kradack road reveals that its language is identical and it also does not disclose any legal provision as its source. Notice dated 17/10/2005 to Ramdas Marotrao Kathale (Vimal Kangan Stores) is about widening of Kelibag road and identically worded. The language is not being disclosed here as while considering impugned notices in present Writ Petitions, same is required to be mentioned. Order of Division Bench dated 18/1/2006 on notice dated 14/12/2005 (Kradack road) records a statement of respondent that said notice was only an offer and if not accepted, steps to acquire affected land under Section 126 MRTP Act would be taken. Petition was disposed of as rights of said petitioners were protected. Perusal of orders dated 6/6/2007 in Writ Petition Nos. 1232 and 1250 of 2006 about Kradack ::: Downloaded on - 09/06/2013 16:37:44 ::: 38 road reveals that a statement was made by planning authority that land affected by Development Plan shall be acquired following due process of law.
The Division Bench then noted that impugned notices were not being acted upon and hence, made Rule absolute accordingly. In Writ Petition No. 5931/2005 pertaining to Kelibag road, the respondent planning authority filed its reply affidavit in February, 2006 and stated that as width of Kelibag road has become clear from letter dated 17/1/2006 of town planning, it would proceed to acquire affected land under Section 126 of MRTP Act.
Division Bench order dated 17/1/2007 delivered in Writ Petition No. 5931/2005 shows that grievance of petitioners was found taken care of by this statement in reply. It is therefore obvious that notices similarly worded were then not co-related with Section 56 at all and were termed only as offer.
It was also declared that if not acceptable, steps to acquire the affected lands as per law would be taken. Though this can not be viewed as policy decision, when identically worded notice is sought to be justified by indicating Section 56 as its source, the change in stand needs to be explained by a public body. It can not be left at its whim and caprice. No records to change stand and invoke S. 56 are shown to this Court despite assertion in petition and rejoinder by Petitioners. Not only this, said assertions are not denied specifically. Explanation about taking recourse to Section 56 as given in paragraph 8 of reply dated 10/8/2010 filed before this Court shows that while implementing Kradack or Kelibag road scheme, several unascertainable ::: Downloaded on - 09/06/2013 16:37:44 ::: 39 claims were made and hence, Section 56 was invoked. Rejoinder dated 26/8/2010 filed by the petitioners here shows specific challenge to availability of any records with respondents to support this explanation. It also asserts that no records of respondents show Section 56 as origin of impugned notices. During arguments, this new theory was stated to be product of afterthought. Inspite of all this, the records indicating an informed change in stand are not produced before us. However, nothing turns on it and if respondents can connect the notices to Section 56, as there is no earlier adjudication about these notices , the issue needs to be examined. The judgment dated 22/1/2008 in Kishor N. Lulla Vs.State of Maharashtra and Ors.
(supra) matter was not available when orders in Kradack or Kelibag road widening were passed by Division Benches here. Said reported judgment appears to be root cause for change in stand. But, as already expressed, nothing turns on it as far as law is concerned. No vested right of petitioners is being taken away by such change and in any case, no argument of discrimination can be based on those earlier orders of Division Benches of this Court. If law permits respondents to elect between two powers or remedies, in the absence of allegations of any malafides, such argument can not be countenanced.
9[B]. In AIR 1984 S.C. 1707 (Jiwani Kumar Paraki v. First Land Acquisition Collector, Calcutta), provisions of W.B. Premises Requisition and ::: Downloaded on - 09/06/2013 16:37:44 ::: 40 Control (Temporary Provision) Act (5 of 1947) and Land Acquisition Act (1 of 1894) are considered by Hon'ble Apex Court. A room of a building situated in an important commercial locality of Calcutta was requisitioned by Government for the purpose of establishing main Sales Showroom of the West Bengal Handicraft and Development Corporation Ltd. and it continued for a span of more than 25 years. Hon'ble Apex Court held that the purpose of requisitioning was indisputably a public purpose and the purpose of having the premises in question was of permanent and perennial nature. It observed that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfillment of the conditions of Section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act 32 of 1955) to the extent applicable, if the Government chooses not to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the ::: Downloaded on - 09/06/2013 16:37:44 ::: 41 Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interest of the parties better. Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law. Here, this judgment can be used only if Section 56 and Section 126 aim at same goal. But, our conclusion in this respect reveals that both provisions operate in distinct fields.
10[A]. First We have to find out scheme of MRTP Act and then role of Section 56 and Section 126 therein. Before proceeding to interpret Section 56, one can note provisions for compensation made in sub-section 4 thereof. It is obvious that a person raising an unauthorized structure or undertaking an illegal development will not be compensated by the State.
Such a wrong doer can not force State to purchase that product or property or his wrong user can not be recognized as beneficial user for that purpose.
Law can not and has not placed premium upon his illegal or high-handed ::: Downloaded on - 09/06/2013 16:37:44 ::: 42 acts by promising to compensate him. It is therefore obvious that such provisions can apply only if a legal injury is suffered by the noticee i.e., developer and not otherwise. The provisions in Section 56 envisage an authorized construction and use of words "unauthorized construction" in head note in some commentaries and in contents or index of Bare Act published by Law and Judiciary Department of State is manifestly erroneous. The said government publication however in its text at page 42 carries the heading-- "power to require removal of authorized development or use". Advocates for petitioners as also planning authority however fairly accepted that this heading at page 42 is correct one. Before considering this aspect in more details, We find it convenient to first refer to the scheme of MRTP Act. We may here add that a head-note has no relevance and it is language of substantive Section itself which is determinative in interpretative exercise. Hence, wrong use of word "unauthorized" in head note of S. 56 can be overlooked as an inadvertent error. But then this is 4th occasion on which such error in printing has surfaced before this Court. On two occasions, it was about Maharashtra Municipalities, Nagar Panchayats and Industrial Townships Act, 1965 and on one, about of Maharashtra Cooperative Societies Act, 1960. It is high time and in appropriate case, this issue needs to be addressed seriously.
10[B]. Relevance and significance of Town Planning Scheme ::: Downloaded on - 09/06/2013 16:37:44 ::: 43 under Chapter V of Maharashtra Regional and Town Planning Act, 1966 viz.
MRTP Act now needs to be understood. We are benefited because of earlier judgments of Hon'ble Apex Court and of Division Benches of this Court in this regard. Before borrowing from these earlier precedents, We very briefly state the manner in which the legislature has achieved the desired goal in MRTP Act. This Act no. XXXVII of 1966 came into force on 11th January 1967 and it repealed Bombay Town Planning Act,1954 and some provisions in Maharashtra Zilla Parishads and Panchayat Samitis Act,1961 vide its last Section i.e., Section 165. It is divided into IX Chapters. After dealing with extent,commencement etc. in Section 1 and definitions in Section 2 in its Chapter I, it deals with establishment of a region, constitution of a regional planning board and preparation of regional plans in Chapter II. Chapter III deals with preparation,submission and sanction to development plan;
procedure to be followed for said purpose. Even procedure for preparation of interim development plans, plans for areas of comprehensive development is prescribed in this Chapter. If there exists any regional plan, the development plan under this chapter has to be in accordance with it. Section 39 requires planning authority to vary town planning schemes to bring it in conformity with the development plan as per Section 92. Section 42 casts obligation upon planning authorities to implement such plan or plans. Chapter IV then deals with control of development and use of lands included in development plan vide its Sections 43 to 51. Sections 52 to 58 therein deal with ::: Downloaded on - 09/06/2013 16:37:44 ::: 44 unauthorized development. Section 56 with which We are concerned here is placed in this later part of chapter IV. Chapter V then prescribes for preparation of town planning scheme.
10[C]. Chapter V of MRTP Act deals with town planning schemes.
Its part (a) deals with making of town planning scheme. As per Section 59 such scheme has to be to implement proposals in final development plan. It may provide for any matter specified in Section 22 and for laying out or relaying out of any land either vacant or then built upon. Under Section 60 it has to resolve to prepare such scheme for any area within its jurisdiction and publish it in official gazette together with copy of plan. Then Section 61 requires it to publish draft scheme for area so declared within stipulated time and there is also a provision for its lapsing, if it is not so published within outer limit of 18 months. Section 62 enables it to include additional areas also in such daft scheme subject to fulfillment of procedural formalities.
Section 63 enables State Government to direct planning authority to make such scheme and in case of its failure to comply, State Government can appoint an officer to make and submit such scheme. Section 64 lays down the contents of draft scheme. For present purposes, it can be said that it may provide for reservation, acquisition or allotment of necessary land, for reconstitution of plots by altering its boundaries, for laying out or relaying out any land either vacant or built upon for comprehensive development, and ::: Downloaded on - 09/06/2013 16:37:44 ::: 45 an estimate of total costs of scheme with costs to be born by planning authority, Section 65 states that in draft scheme, size and shape of reconstituted plot will be determined to render it suitable for building purpose. If it is already built upon, to see that structure as far as possible does not violate stipulation about open spaces in the draft scheme. For said object, plot boundaries can be altered, adjoining land can be either added to it or vice-versa. With consent of owners, a joint ownership can also be proposed without delimitation, allotment of final plot to a dispossessed person and for transfer of ownership form one person to another. Section 66 seems to be an important provision and it provides for payment of compensation to owner for discontinuance of user after final scheme comes into force. Section 67 then envisages consideration of objections by aggrieved person to such draft scheme and modifications therein if found essential. Section 67 then contemplates submission of such draft with objections and modifications, if any within 6 months of publication of draft scheme to State State Government then has to sanction it within 6 months or extended time by notification in official gazette with or without modifications and subject to conditions as may be found fit. It may also refuse to sanction it. Section 69 prohibits a person from undertaking any change or development once declaration of an intention to make scheme is published without obtaining requisite permission as stipulated therein. Section 71 contains a summary inquiry for resolving issues like disputed ownership but it is subject to adjudication in civil suit.
::: Downloaded on - 09/06/2013 16:37:44 ::: 4610[D]. Part (b) of said Chapter V makes provisions for appointment an Arbitrator and a Tribunal of appeal. An arbitrator can define or demarcate or decide area allotted to any public purpose or of final plots;
decide person/s to whom final plot can be allotted, estimate its value or find difference between value of original plot and final plot, decide compensation payable for loss of plot or area of original plot. Section 73 makes certain decisions of such Arbitrator final. If no appeal is filed Section 82 makes those decision of arbitrator also final. Section 74 enables party aggrieved by his decisions to file appeal in certain matters. Section 75 lays down constitution of appellate tribunal. Further provisions till Section 82 lay down procedural details in regard to appellate Tribunal. Section 80 states that such Tribunal of Appeal is not a Court. Section 83 enables planning authority to take possession in advance for forthwith undertaking development work by applying to State Government through arbitrator. If State Government is satisfied it may authorize arbitrator by notification in official gazette to take possession. Section 84 obliges Commissioner of Police or District Magistrate to secure delivery of possession. S.85 confers upon him right to receive 4% interest from from date of loss of possession till compensation is paid to him.
Section 86 contemplates sanction to final scheme by State Government within stipulated period after its receipt under Section 82 from arbitrator by ::: Downloaded on - 09/06/2013 16:37:44 ::: 47 notification in official gazette. Section 87 lays down situation in which the scheme may be withdrawn. Section 88 the prescribes vesting of all lands required for scheme to vest and handing over its possession to planning authority on such coming into force of final scheme. Part (c) of this Chapter V then vide Sections 89 and 90 deals with enforcement of the Schemes, while part (d) - Sections 91 to 93 with variation in said scheme. Section 94 and 95 in Part (e) lays down procedure before the Arbitrator or Tribunal, Part (f) and Section 96 therein, for joint development plans or joint town planning schemes, Part (g)- Sections 97 to 101 for Finance of Schemes, Part (h) in its Sections 102 to 107 for compensation, Part (I), Sections 108 to 112 provide for miscellaneous matters.
10[E]. Chapter VI with title new towns deals with designation of cites as new towns, for declaration or formation of new town development authority, objects of development authority, acquisition of land for it by agreement or under Land Acquisition Act, 1894 by State Government and other similar related matters. Chapter VI-A deals with levy, assessment and recovery of development charges. Its Section 117 also provides for lapsing of reservation if after notice of landowner for acquisition, no steps for acquisition are taken. Chapter VII then deals with land acquisition. Section 129 therein provides for taking of possession in case of urgency. Chapter VIII then takes care of Finance, Accounts and Audit. Chapter IX incorporates ::: Downloaded on - 09/06/2013 16:37:44 ::: 48 supplemental and miscellaneous provisions. Instead of placing our comments on the mechanism of this MRTP Act and reasons behind it, We find it proper to refer to some leading judgments of Hon'ble Apex Court and of this Court dealing with the same. The MRTP Act is almost on same lines as Bombay Town Planning Act, 1955.
11[A]. Constitution Bench of Hon'ble Apex Court in AIR 1986 S.C. 468 = 1986 (1) SCC 581- (Prakash Amichand Shah v. State of Gujarat) considered Bombay Town Planning Act (27 of 1955). This consideration part also holds good to understand above arrangement and its mechanics in MRTP Act. While holding acquisition of land under Town Planning Scheme under Section 53 thereof not violative of Articles 14 and 31(2) for not extending procedure of Land Acquisition Act, the Hon'ble Apex Court observed :-
"6. Before taking up for consideration the contentions urged on behalf of the appellant, it is necessary to understand the objects and the scheme of the Act. The principal, objects of any town planning legislation generally are to provide for planning, the development and control of the use of land and to confer on authorities such as City Municipalities, Municipal Boroughs, Town Municipalities, Town Panchayats etc. powers in respect of the acquisition and development of land for planning and other purposes. Such laws ::: Downloaded on - 09/06/2013 16:37:44 ::: 49 generally provide for the preparation of schemes that might be made in respect of the land with the general object of controlling its development, securing proper sanitary conditions, amenities and conveniences such as public parks, playgrounds, hospital areas etc., preserving existing buildings or other objects of architectural, historic or artistic interest and places of natural interest or beauty and generally of protecting existing amenities. The Act is one such piece of legislation. It was enacted in the place of an earlier statute -------------..............-------------- by the local authority or directed by the State Government in this behalf.
7. By requiring a local authority to prepare a development plan, the Act intends that the Town Planning Schemes should from part of a single and cohesive plan for development of the entire area over which the local authority has jurisdiction. The local authority is required to submit the development plan for the sanction of the State Government. After the receipt of the sanction of the State Government of the development plan, the local authority is authorised by S ection 11(1) of the Act to acquire any land designated in the development plan for purposes specified in Clauses (b), (c), (d) and (e) of S ection 7 of the Act either by agreement or under the Land Acquisition Act, 1894. Sub-sec. (2) of Section 11 of the Act provides that the Land Acquisition Act, 1894 as amended by the ::: Downloaded on - 09/06/2013 16:37:44 ::: 50 Schedule to the Act would apply to the determination of the compensation for the acquisition of such land.
8. Chapter III of the act deals with the provisions relating to the making of Town Planning Schemes. S. 18 of the ----------...............---------------- from the date of such declaration it shall not be competent to the local authority to declare its intention to make any Town Planning Scheme for the same area or any part of it. S. 25 of the Act provides that the draft scheme shall contain the following particulars :
(a) to (h) - Not reproduced here.
9. Section 26 deals with reconstituted plots. In the draft scheme the size and shape of every reconstituted plot shall be determined, so far as way be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces . For the purpose of sub-section (1) of section 26 of the Act the draft scheme may contain the following proposals :-
(a) to (e) Not reproduced.
10. Section 27 of the Act provides for representation to be made by persons affected by such scheme. Section 28 of the Act confers the powers on the State Government to grant sanction to the scheme and to publish it within one month from the date on which the sanction of the State Government to the draft scheme is published in the Official Gazette the State Government is required to ::: Downloaded on - 09/06/2013 16:37:44 ::: 51 appoint a Town Planning Officer for the purpose of implementing the scheme. The duties of the Town Planning Officer are set out in Section 32 of the Act. It reads thus : (Not reproduced.)
11. Section 33 of the Act, provides that excepting in matters arising out of clauses (v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of section 32, every decision of the Town Planning Officer shall be final and conclusive and binding on all persons. Section 34 of the Act however provides for appeals being preferred against any decision of the Town Planning Officer under clauses
(v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of section 32 of the Act to the Board of Appeal constituted under section 35. of the Act. Thereafter a final scheme should be prepared and submitted to the State Government. The State Government is authorized to accord sanction to such final scheme under section 51 of the Act. Thus it is seen that the Town Planning Schemes are to be prepared in two distinct stages by two different authorities. The first stage constitutes the preparation of draft town planning scheme by the local authority and the: second stage consists of the scheme to be prepared by the Town Planning Officer. If the State Government sanctions the final scheme under section 51 of the Act it shall state in the notification the place at which the final scheme is kept open for the public inspection and a date which shall not be earlier than one month after the date of the publication of the notification on which all ::: Downloaded on - 09/06/2013 16:37:44 ::: 52 the liabilities created by the scheme shall take effect and the final scheme shall come into force. On and after the date fixed in such notification a town planning scheme shall have effect as if it had been enacted in the Act. The effect of final schemes is set out in section 53 of the Act.
Section 53 reads thus :-
"53. On the day on which the final scheme comes into force, -
(a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances;
(b) all rights in the original plots which have been re-
constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer."
12. to 15. (not reproduced here).
16. Section 84 of the Act provides that if at any time the State Government is of the opinion that any land included in a town planning scheme is needed for a public purpose other than that for which it is included in the scheme it may make a declaration to that effect in the Official Gazette in the manner provided in section 6 of the Land Acquisition Act, 1894 and on the publication of such declaration the Collector shall proceed to take order for the acquisition of the land and the provisions of the Land Acquisition Act, 1894, as amended by the Schedule to the Act, as far as may be, ::: Downloaded on - 09/06/2013 16:37:44 ::: 53 shall apply to the acquisition of the said land. Thus it is seen that there are three methods of acquisition of land under the Act which are as under :-
(i) acquisition of land provided in section 11 of the Act for development purposes specified in clauses (b), (c),
(d) and (e) of section 7 of the Act for which compensation is payable under the provisions of the Land Acquisition Act, 1894 as amended by the provisions contained in the Schedule to the Act;
(ii) transfer of lands that takes place on the coming into force of the final scheme under section 53 of the Act for which compensation is payable in accordance with section 67 of the Act; and
(iii) acquisition of land under section 84 of the Act which empowers the State Government to acquire lands included in the town planning scheme at a subsequent stage where again compensation is payable in accordance with the provisions of the Land Acquisition Act, 1894 as amended by the Schedule to the Act.
17. These are broadly the features of the Act."
11[B]. In AIR 1985 S.C. 613 (Babubhai and Co., M/s. v. State of Gujarat) validity of Section 54 dealing with summary eviction of same act viz. Bombay Town Planning Act (27 of 1955), has been considered. Its para 8 reads as under :--
::: Downloaded on - 09/06/2013 16:37:44 ::: 54"8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by S. 54 it will appear clear that the topic of making of town planning schemes is dealt with in Ss. 21 to 53 while S. 54 (and some of the following sections like 55 and 71 to 78) deal with the aspect of the execution of town planning schemes and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itself - a highly responsible body, and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi-judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled. lands which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi-judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled. to occupy the plots in their occupation has to be ::: Downloaded on - 09/06/2013 16:37:44 ::: 55 arrived at after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing matter extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, mere absence of corrective machinery by way of appeal or review would not in our view render the provision invalid."
11[C]. Division Bench of this Court in 2005 (5) LJSOFT 46 =2005 (2) All.M.R. 271- (Pukhrajmal Sagarmal Lunkad (deceased through LRs.) and Ors. Vs. Municipal Council, Jalgaon and Ors) considers scheme of MRTP Act, 1966. That consideration is also helpful in throwing light on the functioning of MRTP Act. Division Bench there holds that Chapter V of MRTP Act is a self contained Code providing for payment of compensation and vesting of the title of the lands in the planning authority and therefore applicability of the provisions of Land Acquisition Act is excluded . Denial of applicability of Land Acquisition Act is found not in violation of fundamental right contained in Article 14 of the Constitution of India. The following points emerged there for adjudication:-
::: Downloaded on - 09/06/2013 16:37:44 ::: 56(I) Whether Chapter V of the M.R.T.P. Act, is a self contained Code, providing for payment of compensation and vesting the tide of the lands in the Planning Authority;
(II) Whether Section 126 of the M.R.T.P. Act could be brought into play, in regard to the lands reserved for public purpose in the Town Planning Scheme;
(III) Whether the petitioner is entitled to claim market value of the land and other benefits, such as Solatium etc, as is contemplated by the provisions of the Land Acquisition Act, though his land forms part of the Town Planning Scheme;
(IV) Whether Section 127 of the Act, is available to the owner of a land reserved for public purpose, under a Town Planning Scheme;
(V) By non-application of Sections 126 and 127 of the Act, whether the petitioners' right to equality under Article 14 of the Constitution of India is abridged and violated.
In para 7, the Division Bench has expressed :--
"7. Before we proceed to deal with the scheme of the Maharashtra Regional Town Planning Act, (for sake of brevity 'the M.R.T.P. Act) it would be ::: Downloaded on - 09/06/2013 16:37:44 ::: 57 appropriate to deal with the features of the repealed enactment, which was dealing with the same subject, prior to the coming into force of the Act. The subject of Development Plan and Town Planning Scheme was regulated by the provisions contained in the Bombay Town Planning Act, 1954. The said Act provided for preparation of Development Plan, so also, Town Planning Schemes. The present Act is an improvement over the Bombay Town Planning Act and includes, few more chapters, dealing with the Regional Plans and Development of new Towns. It is relevant to note that the M.R.T.P. Act follows generally the then existing provisions of Bombay Town Planning Act, 1954, (for sake of brevity 'the B.T.P. Act') in regard to preparation and execution of Town Planning Schemes, with few minor modifications. So far as the provisions relating to the Town Planning Scheme are concerned, there is a striking similarly in both the Acts, i.e. M.R.T.P. and B.T.P. Act.
The. Division Bench then refers to the Scheme of the B.T.P. Act in relation to Town Planning Scheme for the reason that some of the points raised in petition before it were adjudicated by the Apex Court in reference to the provisions of the B.T.P. Act. It then in paragraph 9 notes:--
" 9. The Development Plan proposals are executed ::: Downloaded on - 09/06/2013 16:37:44 ::: 58 by the local authority either by compulsory land acquisition or by preparing and executing Town Planning Schemes for different parts of the Town, so that when all the proposals are carried out, there would emerge a harmonious, well planned and properly developed town. Town Planning Scheme can be made in respect of any land, whether open or built upon and incremental contribution, i.e. betterments in land value, can be recovered from the owners of the plots benefiting from the. proposals made in the scheme.
In making a Town Planning Scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders.
The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Arbitrator may lay out new roads, divert or close existing roads, reserve lands for recreation grounds, schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up of reclamation of low-lying, swamp or unhealthy areas or leveling up of ::: Downloaded on - 09/06/2013 16:37:44 ::: 59 land so that the total area included in the scheme may conduce to the health and well-being of the residents. Since the Town Planning Scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community. Under the B.T.P. Act, the cost of the scheme is to be met wholly or in part by contributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to. accrue in respect of each plot.
While dealing with provisions of B.T.P. the Apex Court, in a judgment reported in AIR 1969 SC 634 has, in depth, considered the working of the Town Planning Schemes and observed........--------................
This is how the Town Planning Schemes were operated under the B.T.P. Act.
10. Let us examine, whether the M.R.T.P. Act deviates from the manner of operation of the Town Planning Schemes from the repealed B.T.P. Act or it ::: Downloaded on - 09/06/2013 16:37:44 ::: 60 runs hand in hand with the same. Chapter V of the M.R.T.P. Act deals with Town Planning Schemes. Section 59 provides for preparation and contents of the scheme. Section 60 empowers the Planning Authority to resolve on declaration of intention to make a scheme and publish the same in the Official Gazette. Section 61 regulates making and publication of Draft Scheme. Section 64 provides for contents of the Draft Scheme. Section 66 deals with compensation for discontinuance of use. Section 67 obliges the Planning Authority to consider objections to the Town Planning Scheme. Section 68 authorises the State Government to sanction the Draft Scheme. All these sections fall under the Head Note, "Making of Town Planning Schemes". In making of a Town Planning Scheme, the M.R.T.P. Act does not make any deviation from the B.T.P. Act. Under Section 72, the State Govt. has to appoint an Arbitrator within one month from the sanction of the Draft Scheme. Sub-section 3, provides for powers and duties of Arbitrator. Section 74 provides for Appeals before the Tribunal of Appeals to be constituted under Section 75.
Under the B.T.P. Act, the Authorities designated were Town Planning Officers and Board of Appeals, whereas under the M.R.T.P. Act, the designations have been changed and renamed as Arbitrator and Tribunal of Appeals. They perform the same functions ::: Downloaded on - 09/06/2013 16:37:44 ::: 61 and exercise the same powers. Section 83 deals with advance possession of land. Section 85 provides for payment of interest to the owners of land, whose possession is taken in advance. Section 86 postulates sanction by the State Govt. to the final scheme.
Section 88 provides for the effect of final scheme. It reads thus :"Section 88 : On and after the day on which a final scheme comes into force:
(a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;
(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator;
(c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme."
Section 88 of the M.R.T.P. Act is almost the same as Section 53 of the B.T.P. Act. So far as Clause (a) is concerned, it is identical. The vesting of lands, required by the Planning Authority, in the Planning Authority (or Local Authority under the B.T.P. Act) has undergone no change. Section 97 deals with working out the cost of the scheme and Section 101 provides for transfer of rights from original to ::: Downloaded on - 09/06/2013 16:37:44 ::: 62 reconstituted plot and extinction of such right when the same cannot be transferred. Section 101 provides for payment of compensation in respect of property or right injuriously affected by the scheme. The principle of determination Of compensation is fully covered by Sections 102 to 107.
Comparison of the entire scheme, in regard to Town Planning Scheme under the M.R.T.P. Act and the repealed B.T.P. Act would reveal a striking similarly.
What is true of a provision under the B.T.P. Act is equally true in relation to the similar provision in the M.R.T.P. Act. The M.R.T.P. Act is modelled on the same pattern as B.T.P. Act. Under the M.R.T.P. Act, the Town Planning Schemes are prepared and finalized in the same manner as was done under Bombay Town Planning Act. It is as such evident that the judgments delivered by the Supreme Court interpreting the provisions of the B.T.P. Act would hold good while interpreting the similar provisions in the M.R.T.P. Act. Bearing this position in mind, we proceed to deal with the points raised in this petition. As Point Nos.(Il) (III) and (V) overlap, we will consider the same collectively.
Little later in para 13, Division Bench has observed :--
::: Downloaded on - 09/06/2013 16:37:44 ::: 63"13. The divesting of the title takes place statutorily under Section 88 of the M.R.T.P. Act. Section 104 of the M.R.T.P. Act provides for payment of compensation to the owner of a original plot, who is not provided with a plot in the final scheme or if the contribution to be levied from him under Section 100 of the Act, is less than the total amount to be deducted therefrom, under any of the provisions of the Act. It will not be out of place to state that Chapter VIII of the Bombay Town Planning Act, is almost bodily lifted and inserted as Chapter V of the M.R.T.P. Act, which deals with finance of the schemes. The provisions of Sections 64 to 73 of the old Act, find place in Sections 97 to 106 of the M.R.T.P. Act. The Supreme Court has categorically rejected the contention raised by the learned counsel for the appellant, that if it is possible to acquire the land of the appellant, either under the Land Acquisition Act, 1894, which is more favorable to the owner of the lands, both from the point of view of procedural difficulties and from the point of view of quantum of compensation payable for the land, which includes solatium payable under Section 23(2) of the Land Acquisition Act, then the Act, which does not provide for appeal against many orders passed by the Town Planning Officer (Arbitrator) and does not authorise payment of solatium in addition to the market value of land, the acquisition of land under the Town Planning Scheme under Section 53 (Section ::: Downloaded on - 09/06/2013 16:37:44 ::: 64 88 of the M.R.T.P. Act) is discriminatory and violative of Article 14 of the Constitution, viz. equality before law and equal protection of laws.
While considering a situation, wherein a person loses whole of his land, in the light of the provisions contained in Section 53 (Section 88 of the M.R.T.P. Act) of the Act, the Supreme Court observed thus:
"Under Section 51(3) of the Act (Section 86(3) of the M.R.T.P. Act), --------------.....................---------------
owners of the original plots. The development and planning carried out under the Act is primarily for the benefit of public. The local authority is under an obligation to function according to the Act. The local authority has to bear a part of the expenses of development. It is in one sense a package deal. The proceedings relating to the scheme are not like acquisition proceedings under the Land Acquisition Act, 1894. Nor are the provisions of the Land Acquisition Act, 1994 made applicable either without or with modifications as in the case of Nagpur Improvement Trust Act, 1936."
14. Applying the ratio laid down in the above judgments, it is crystal clear that Chapter V of the M.R.T.P. Act, is a self contained Code providing for payment of compensation and vesting of the title of ::: Downloaded on - 09/06/2013 16:37:44 ::: 65 the lands in the planning authority. The petitioners are not entitled to claim that their lands ought to be acquired under the Land Acquisition Act. When the land forms part of the Town Planning Scheme, applicability of the provisions of the Land Acquisition Act, is excluded and the petitioners cannot contend that denial of applicability of the Land Acquisition Act, while acquiring the land, needed for public purpose by the Planning Authority, by virtue of operation of Section 88 of the M.R.T.P. Act, results in violation of the fundamental right contained in Article 14 of the Constitution of India."
11[D]. Another Division Bench of this Court in 2006 (8) LJSOFT 153--
(Zahir Jahangir Vakil and Ors.Vs.Pune Municipal Corporation and Anr), takes the same view and finds - (i) that the scheme of the Town Planning under the MRTP Act, 1966 is a scheme by itself and the provisions of compensation are inbuilt and govern within the said scheme, (ii) the provisions of Town Planning scheme provide for computation of compensation by the Arbitrator, (iii) if a party is aggrieved by such compensation being fixed by the arbitrator such a party has a right of appeal before the Tribunal under the provisions of the MRTP Act, 1966, (iv) on the final scheme being sanctioned by the State Government under section 88(a), the property vests free of all encumbrances in the State Government and all ::: Downloaded on - 09/06/2013 16:37:44 ::: 66 rights of the original holders in the original plot of land stand extinguished,
(v) the rights of the parties are governed by the provisions of the said scheme and cannot be looked into outside the said scheme. Mechanism of MRTP Act is found to classify Town Planning Scheme into three parts: (i) draft town planning scheme, (ii) proposed final town planning scheme and (iii) Sanctioned town planning scheme. Chapter V of the Act is recognized to be a self-operative complete code by itself. Thus, for the purpose of the compensation in respect of plots of land covered under the scheme and reserved or utilized for the public purpose under the scheme the respondents are liable to resort to the provisions of Section126 of MRTP Act, 1966 and consequently acquire the same under Land Acquisition Act, 1894. In paragraph 26, Division Bench holds that the words 'town planning scheme' used under the provisions of sub-section (2) of section 126 is in respect of the town planning scheme which has yet not become final and sanctioned in exercise of power under section 86 by the State Government though published as final scheme for inviting objections under Section 67 of the MRTP Act, 1966. Thus, the provisions of Section 126(2) providing for acquisition of the land will apply prior to the said town planning scheme is finally sanctioned under the provisions of Section 86 of the said Act of 1966.
The said provisions are enabling provisions because if the planning authority desires to acquire the land under section 88(c) then such an enabling power is given by sub section (2) of section 126 of the said MRTP Act, 1966. On such ::: Downloaded on - 09/06/2013 16:37:44 ::: 67 exercise under Section 126 of power the planning authority can acquire a land even before the final scheme is sanctioned under provision of Section 86 of the Act. These enabling provisions are designed for emergencies where due to exigencies the State Government cannot wait till completion of entire procedure prescribed under Chapter V and land is required for any urgent public purpose. It also held that in cases where town planning scheme is already sanctioned and the property vests in the State Government under section 88(a) of the said Act, the question of resorting to section 126(2) of the said Act of 1966 cannot and does not arise.
12[A]. These judgments therefore show the stage by stage progress of region into scientifically designed and coordinated , mutually dependent but well organized areas to form cities and metropolis for better life and support to community. A town planning scheme for any area within jurisdiction of a planning authority seems to be the smallest unit of consideration while next unit is a town planning scheme. Said scheme has to be in consonance with the final development plan which in turn has to conform with the regional plan. It is therefore clear that town planning is very systematic activity designed scientifically in the interest of consolidated development to suit needs of the society. The legislation expects region to grow in pre-designed manner and the general society then develops around it which in turn results in putting optimum pressure on natural resources and sustained ecological balance.
::: Downloaded on - 09/06/2013 16:37:44 ::: 68When the planning authority has to carry out the works like road widening or of public utility in a city, acquiring title or possession of plots of citizens may become necessary. When such development i.e., designated purpose affects lands or plots of several citizens, a consolidated exercise is prescribed in MRTP Act. Chapter V stipulates democratic procedure therefor and it balances interests of an individual with public interest. Similarly, procedure therein also attempts to match conflicting interests of individuals in such matters. Provisions permitting amalgamation of plots, of reconstitution of plots, for enabling joint ownership are already mentioned by us above. Views on said mechanism and construing Chapter V as a complete code not permitting recourse to Section 126, except in relation to lands reserved for public utility are also noted by us. Section 66 there contains a provision for compensation for change of user. It states that area or building ceases to be available for any other use except one specified in final scheme within such time as stipulated in final scheme. Person affected by such bar is entitled to compensation as determined by the arbitrator. Section 83 therein enables planning authority to take possession in advance for forthwith undertaking development work by applying to State Government through arbitrator. If State Government is satisfied it may authorize arbitrator by notification in official gazette to take possession. Chapter VII dealing with land acquisition has Section 129 enabling respondents to take possession of lands reserved or designated for public purpose in Regional Plan or Development Plan, in case ::: Downloaded on - 09/06/2013 16:37:44 ::: 69 of urgency. Power can be exercised after publication of notification under Section 126(2) of MRTP Act by making application to State Government and State needs to be satisfied about public interest behind such urgency.
12[B]. By the impugned notices, respondents have called upon petitioners to produce title documents in relation to affected properties.
Documents of title like city survey grant i.e., Sanad, akhiv patrika i.e., revenue extract by city survey and sanctioned building plan etc. are specified in it.
This may show absence of any previous town planning scheme constituting or reconstituting and allotting those plots to petitioners. Otherwise the relevant records about allotment, plot sizes and shapes would have been with the planning authority. Reply affidavit of respondents dated 10/8/2010 denies knowledge of title or legal possession of petitioners. It is asserted by them that "many of the lands on Bhandara Road are mere encroachments and unauthorized structures erected on public lands, as such question of acquisition of those lands under Section 126 of the MRTP Act does not arise."
Though this assertion was seriously assailed by learned Counsel by pointing out that the same were without proper verification of documents supplied to respondents, and also by pointing out that after all those documents were produced by the petitioners before this Court with rejoinder, the respondents were constrained to accept those claims, We do not find it decisive either way.
It only supports our conclusion of absence of any previous planning exercise ::: Downloaded on - 09/06/2013 16:37:44 ::: 70 in the Bhandara Road area. Thus it brings on record lack of any previous study or scientific approach of a planner to the town planning facet of Bhandara Road widening work.
12[C]. "Region" is the largest concept recognized by the MRTP Act and "Regional Plan" therefore is the master document to determine the pattern of Development Plan to be prepared by the Planning Authority as per Section 21.
This has to be in conformity with the Regional Plan and for entire area within jurisdiction of such an authority. Section 21 and Section 27 both cast this obligation upon it. The Development Plan attains finality in Section 31 through democratic process of public participation. Such development plan then eclipses the town planning scheme, if already prepared, as per Section
39. As noticed above then Section 42 casts obligation upon planning authorities to implement such plan or plans. Chapter IV then deals with control of development and use of lands included in development plan vide its Sections 43 to 51. Sections 52 to 58 therein deal with control of unauthorized development. Mostly this Chapter IV contains provisions to check illegal or unauthorized development contrary to development plans and to maintain orderly development. Powers given thereunder to planning authorities are only to secure that goal. The stage at which legislation has envisaged exercise thereof clearly spells out absence of a power to compel transfer of title or possession. Such power is not required at that stage and ::: Downloaded on - 09/06/2013 16:37:44 ::: 71 has been specifically conferred later on when logically recourse thereto is warranted. Section 56 with which we are concerned here is placed in this later part of chapter IV. In facts before us and in this situation, after Development Plan attained finality, it will be mandatory to prepare a town planning scheme to introduce town planners scientific angle and to reconstitute plots to provide for 60 feet wide Bhandara Road. It is possible only after giving all concerned necessary opportunity as per the procedure stipulated in Chapter V of MRTP Act. It would have assisted planning authority to find out number of viable plots becoming available in that area and attempt to work out entitlement of individuals as per law from amongst various existing holders thereof. Drawing of a proper lay-out providing for road width of 18 Meters as per method prescribed in MRTP Act was/is essential. It is more than apparent that this exercise has not even been thought of here.
13. Question is whether Section 56 is a substitute for this exercise ?
Does it provide any shortcut to achieve the goal of road widening ? Necessary observations to show that it is power to require removal of "authorized"
development or use have come above in this judgment. It springs into force after preparation of Development Plan and hence, a town planning scheme as envisaged in Chapter V of MRTP Act is not essential. The planning authority however has to satisfy itself that its use is necessary and expedient for proper ::: Downloaded on - 09/06/2013 16:37:44 ::: 72 planning of its areas including the interest of amenities. What we gather is, said power can be resorted to only when the compliance with directions issued thereunder results in furthering the proper planning or interest of amenities. Directions contemplated are discontinuance of any use of land, imposing any conditions on its user and alteration or removal of any building or work. Learned Senior Advocate has urged that ban on shopping frontage due to new scheme/plan is one illustration in which the existing shop-activity may be continued with some alteration or concessions. We have already pointed out that power can be exercised even to stop any activity though fully in consonance with plan. A teacher running largely attended private coaching classes at his residence may create parking or other problems in locality and perhaps, this power then can be used to discontinue that user or to regulate it.
We can not and will not like to say anything conclusively here as very wide and extraordinary power is conferred on planning authority to meet different situations whether foreseen or unpredictable. The public interest is of paramount importance in the scheme and step directed has to be expedient in the interest of proper planning or amenities. When recourse to it is seen in the light of purpose of road widening, it is apparent that any positive act on part of owner or any discontinuance on his part can not result in road widening. At the most, his plot or land may become available for road construction but then that road or its extra width will be required to be built by the planning authority. Respondents here have given the work-order ::: Downloaded on - 09/06/2013 16:37:44 ::: 73 dated 16/11/2009 for said road construction to M/s R.M. Dayaramani. Thus even before receipt of possession, public money is being made available for such work on private property. This Section does not contemplate any divestment of title of such holder or its transfer or vesting in planning authority. Section 56(4) only enables person suffering damage on account of such compliance to claim compensation therefor or then reimbursement of expenditure incurred in such compliance. For computation thereof, provisions of Section 51(2) and (3) are made applicable. Section 51 enables planning authority to either revoke or modify any permission for development whether granted or deemed to be granted with same objective as envisaged in Section
56. Thus Section 51 is power to stop development in progress while Section 56 is power to stop its user or regulate it after development is over. Section 56(5) is important indication about the nature or scope of power under Section 56. If because of compliance with the directions as issued, the holder finds that land becomes reasonably incapable of beneficial use, he can serve a purchase notice upon the State Government as per Section 49 of MRTP Act.
Thus only when land can not be reasonably used by the person after such compliance, question of purchase by State or planning authority crops up.
Option whether to sale or not to sale is with owner and not with planning authority. Words "incapable of reasonably beneficial use" import an element of objectivity to some extent, thereby enabling State or planning authority to refuse to purchase. Section 56, however, does not give planning authority an ::: Downloaded on - 09/06/2013 16:37:44 ::: 74 option to force citizen to sell. It does not confer on it power to buy or acquire the designated land and construct a public road on it. In other words, Section 56 does not contain any machinery for vesting of title in respondents to land on which widening work is to be done. When the other provisions enable it to take advance possession or emergent steps at appropriate stage, absence of such power in Section 56 is conspicuous and also deliberate. The respondents are not authorized to dispossess a person from his plot or land against his wish and it is not a summary mode of pushing road widening work. It is not meant to force a person to part with title or possession. Section 56 is attracted only when planning authority does not need the title and possession of land and compliance with directions either of discontinuance or fulfillment of conditions imposed or alteration/removal of structure is enough. Shri Kaptan, learned Counsel for respondents has tried to show how further steps under Sections 52 and 53 are possible after failure to comply with notice under Section 56. But, in present challenge, we find said effort misconceived.
Section 56 can not be used to procure land for increasing the width of road.
Effort of respondents to assign impugned notices to Section 56 for the first time and before this Court therefore, must fail. It is also apparent that this Court while passing order dated 31/3/2010 in Writ Petition No. 1415/2010 or in Kishor N. Lulla Vs.State of Maharashtra and Ors. (supra) did not have occasion to look into all these facets of Section 56 of MRTP Act. From this, it is evident that all objections by the respondents on the strength of said order ::: Downloaded on - 09/06/2013 16:37:44 ::: 75 or judgment and about alternate remedy have also to fall to ground.
14. Section 126 on the other hand provides that after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, if any land is required or reserved for any of the public purpose specified in any plan or scheme, at any time the Planning Authority can acquire it by making an application to the State Government under the Land Acquisition Act, 1984. This procedure has not been adopted by the respondents before us. Section 129 helps planning authority to seek urgent possession. Thus said provisions have different goal and steps thereunder result in divesting a citizen of his title to and loose possession of affected land and transfer it to planning authority.
15. Perusal of notice dated 13/1/2010, addressed to one Atmaram Vazirani, petitioner no. 1 in Writ Petition No. 1980/2010 shows that it is in six parts. It may be reiterated here that all notices to different petitioners in various Writ Petitions before us are identical though of different dates. By first part, the area or portion of his shop affected by designated purpose in Development Plan is pointed out. It is stated that its designated user is public road and he has been using it for residence/trade or other purpose. He has been called upon to discontinue the user thereof. The second part calls upon him to remove the construction in affected portion within 30 days to make ::: Downloaded on - 09/06/2013 16:37:44 ::: 76 that space vacant and to hand it over for proposed road widening to the Nagpur Municipal Corporation for public convenience and proper traffic regulation. The third part warns that in default, the action for removal of that portion will be taken by the Corporation at the risk of the petitioner. By fourth part, he has been called upon to produce his title documents and sanctioned construction/building plan, within a period of 15 days. By 5th part, an offer of compensating him by giving him 100% TDR, if he voluntarily gives the possession of affected portion to the Corporation, is also given. He is informed that for such TDR, he has to apply to office of Assistant Director of Town Planning. By the sixth and last part, it is pointed out that if notice is not complied with within the stipulated time, further action as per the provisions of the M.R.T.P. Act will be taken. In last sentence, he is called upon to cooperate with the Municipal Corporation in work of town development. This notice, therefore, nowhere shows that it is issued under Section 56 of the said Act.
16. Various judgments seen above show that even before finalization of town planning scheme, respondents can take action under Section 126 to acquire. Even emergent steps are permitted if circumstances warrant the same. Through this notice or even after compliance with it, the respondents do not become owner of affected portions to enable them to spend public revenue on it. The development plan is finalized about 10 years back and we ::: Downloaded on - 09/06/2013 16:37:44 ::: 77 do not know anything about steps taken thereafter either under Chapter V or otherwise. Till petitioners voluntarily surrender either the possession and ownership of affected portions for designated use to respondents, road widening is not possible. Only discontinuance of other user or demolition of structures on affected parts does not result in Bhandara Road widening.
Notices impugned herein and issued by the respondents therefore can not be construed as expedient in proper planning of its areas including the interest of amenities. Their stand in Writ Petition Nos. 69/2006, 5931/2005 on such notices issued for widening Kradack road or Kelibag road that it constituted merely an invitation to cooperate voluntarily appears to be plausible and attempted change therein is unacceptable. As a result of this discussion, all notices issued by respondents to petitioners before us for Bhandara Road widening work can not support any coercive action against the petitioners for its noncompliance. If petitioners have not cooperated with respondents, it is open to respondent to proceed under MRTP Act as already indicated in the impugned notices. As said notices have no foundation in law, no prejudice whatsoever is caused to petitioners before us. Those notices at the most only communicate the offers to petitioners and if not agreed to by them,are legally un-executable and of no consequence.
17. We accordingly declare that impugned notices issued by the respondents to petitioners about Bhandara Road widening work are not the ::: Downloaded on - 09/06/2013 16:37:44 ::: 78 notices in eye of law and the same can not be executed against petitioners or acted to their prejudice in any way. The same are merely offers made to individuals for acceptance on voluntary basis and respondents can not take any coercive steps on its strength as threatened therein. Respondents are restrained from taking any action forcibly either of demolition or for recovery of possession or for discontinuance of other user on its basis against the wish and desire of petitioners. We have held that Section 56 is attracted only when planning authority does not need the title and possession of land and compliance with directions either of discontinuance or fulfillment of conditions imposed or alteration/removal of structure is enough. In view of this, the prayers to declare that provisions of Section 56 as not applicable when land of citizen is reserved for public purpose in Development Plan and is required for by planning authority to achieve said purpose are rendered infructuous at least here due to present facts. Prayers to declare said notices discriminatory and arbitrary as contrary to planning authorities own statements recorded by this Court in 2006 while considering issue of Kradack Road widening and in 2005 about Kelibag Road Widening and to quash said notices also become infructuous as We have not recognized the impugned communications as notices in eye of law.
18. All Writ Petitions are thus partly allowed. We are not awarding any costs to petitioners as designated user of affected portion in Development ::: Downloaded on - 09/06/2013 16:37:44 ::: 79 Plan is not in dispute. Rule is made absolute in all Writ Petitions in above terms.
JUDGE JUDGE
Dragon.
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