Bombay High Court
Sujala Yeshwant Nitsure And Ors. vs The Municipal Corporation Of City Of ... on 10 October, 1995
Equivalent citations: 1996(2)BOMCR503
JUDGMENT M.S. Rane, J.
1. The appellants in this appeal are the original plaintiffs in the Regular Civil Suit No. 2171 of 1977 on the file of Civil Judge, Junior Division, Pune (hereinafter they will be referred to as the plaintiffs). The 1st respondent is the Municipal Corporation of City of Pune (hereinafter referred to as the Municipal Corporation, Pune). The respondent Nos. 2 to 11 are owners of a plot of land being final plot No. 35/12 in T.P.S. No. 1 (hereinafter respondent 2 to 11 will be referred to as the plot holders and said final plot No. 35/12 as the said plot for brevity's sake).
2. The plaintiffs filed the suit in their representative capacity and on behalf of the residents of Karve Road, Prabhat Road area, against the Municipal Corporation of Pune and the plot holders inter-alia claiming declaration and injunction to the effect that the permission granted by the Municipal Corporation Pune to the plot holders for the construction of Mangal Karyalaya on the said plot was illegal, ultra-vires, and they claimed injunction restraining the plot holders from proceeding with the construction work and also for demolition of the construction work executed by them. The trial Court by his Judgment and decree dated 25th April, 1979 decreed the suit of the plaintiffs.
3. The plot holders being aggrieved by the said decree of the trial Court filed appeal being Civil Appeal No. 412 of 1979 in the District Court of Extra Joint Judge, Pune, challenging the said decree. The 1st Appellate Court by his Judgment dated 30th January, 1982, allowed the appeal of the plot holders by setting aside the decree passed and ordered the dismissal of the suit of the plaintiffs. The plaintiffs have filed the Second Appeal herein against the said order and judgment dated 30th January, 1982, of the 1st Appellate Court.
4. The plaintiffs are the residents of Erandavane, Pune and holders of a property comprising of house situated at Karve Road, Prabhat Road in the limit of the Municipal Corporation, Pune. The plot holders also own the property compromising of Plot No. 35/12 which is nearby and adjoining to the property of the plaintiffs which they had purchased in or about February 1974. Both the plots fall under the Town Planning Scheme No. 1 framed by the Municipal Corporation, Pune under the provisions of Town Planning Act. According to the plaintiffs their plot as also the plot of the plot holders under the Town Planning Scheme is exclusively reserved for the residential purpose. The user of the said plot by the plot holders for any other purpose other than the residences, for that matter, for Mangal Karyalaya will not be permissible under the Town Planning Scheme. The plaintiffs assert that although under the provisions of the Town Planning Act and the Rules and Regulations framed thereunder as also the final development plan and final scheme sanctioned the said plot being exclusively reserved and ear-marked for the residential purpose, the Municipal Corporation, Pune have allowed the same to be used for the construction of Mangal Karyalaya by the plot holders which is illegal and ultra-vires. This is a crux of the controversy in the matter herein.
5. It is contention of the plaintiffs that notwithstanding the specific reservation of the said plot for the purpose of residence in the development plan and Town Planning Scheme, the 1st respondent - Municipal Corporation, Pune allowed the plot holders to construct a Mangal Karyalaya on the said plot in total defiance and violation of the provisions as contained in the Town Planning Act as also development plan and Town Planning Scheme. It is the case of the plaintiffs that such permission was granted by the Municipal Corporation, Pune to the plot holders despite their objections. According to the plaintiffs, therefore, the permission granted by the Municipal Corporation, Pune allowing the plot holders to construct Mangal Karyalaya on the plot is in excess of the power and authority vested upon it by the Statute and the Rules and Regulations made thereunder.
6. As stated earlier, the said plot is part of Town Planning Scheme No. 1. The said Scheme No. 1 is known as "Town Planning Scheme Pune No. 1 (Varied) (Final) and has been published under the Government Notification, General Department No. 1232 dated 17th January, 1937 and the Government by its resolution has given sanction thereto on 25th July, 1939. The Regulations known as Regulations Controlling the development of the area included in Town Planning Scheme Pune No. 1 (Varied) have also been framed and finally approved in respect of the said Scheme No. 1 (The said regulations will be referred to as the Scheme Regulations). Likewise the regulations know as "Regulations Controlling Development of the land sanctioned by the Government under the Development plan of Pune" have also been framed in respect of the said Scheme No. 1 and have been published in Government Gazette Part II dated 22nd May, 1958. (The said Regulations will be referred to as the Development Regulations.) The Scheme Regulations were amended and the Government gave its approval thereto on 5th July, 1979. Significant changes were made in Regulations No. 6 adding thereinto Clauses 6-a, b, c, d, e permitting certain users other than residential user in the said Town Planning Scheme No. 1 such as office, branch offices of the Banks, Cinema Theatres and also the Mangal Karyalaya. A detailed reference thereof will be made little lateron.
7. It will be necessary to notice the legislative history in respect of the Town Planning. The Act known as Bombay Town Planning Act of 1915 was inacted and as stated earlier, the Scheme No. 1 was framed in the year 1938 and sanctioned in the year 1939 which was under section 9 of the said Act of 1915. The 1915 T.P. Act was replaced by the Bombay Town Planning Act (XXVII of 1955). Then the said 1955 Act was replaced by the Maharashtra Regional and Town Planning Act, 1966. The said Act of 1966 came into force with effect from 11th January, 1967 repealing the 1955 Act. Section 165 of the said 1966 Act seeks to save, notwithstanding the repeal of the earlier Act, the various schemes framed thereunder, action taken including the declaration and intention to make development plan of the Town Planning Scheme, in draft development plan or scheme published by the local authority and the Rules and Regulations made thereunder making it distinctly clear that the same shall be deemed to have been done or taken under the corresponding provisions of this Act i.e. 1966 Act and the provisions of this Act to be applicable in relation thereto. The proceedings before the Board of Appeal were also allowed to be continued as also the reference before the arbitrator.
7-A On 25th March, 1974 the plot holders applied to the Municipal Commissioner of the Municipal Corporation, Pune for the issuance of permission for construction of new building on demolishing the old bungalow for the purpose of Mangal Karyalaya on the said plot. The plaintiffs and the other residents when they learnt about the same, submitted their representation to the Municipal Commissioner, Municipal Corporation, Pune, on 17th August, 1974 and recorded their objections on the ground of nuisance. The Municipal Commissioner, however, notwithstanding the objections sanctioned the proposal of the plot holders for the construction of Mangal Karyalaya on the said plot and on 19th August, 1976 issued Commencement certificate to the plot holders. The Commissioner's certificate issued was valid for the period of one year. But as the said plot holders could not complete the construction within one year, the plot holders applied for extension and at that stage also the plaintiffs and others sent their representation to the Municipal Commissioner of the Municipal Corporation, Pune and recorded their objections. However, the Municipal Commissioner on 10th August, 1977 granted the renewed permission to the plot holders and so informed to the plaintiffs. While granting the permission, the Municipal Commissioner imposed a condition to the effect that no loud speakers should be allowed in the Mangal Karyalaya at all the times. The plot holders thereafter proceeded with the construction work and eventually completed the same on 16th May, 1978. The Municipal Corporation, Pune issued the completion certificate in respect of the said Mangal Karyalaya building. It will, thus, be noticed that the construction of Mangal Karyalaya had already been completed as earlier as in the year 1978.
8. As the permission to construct Mangal Karyalaya was granted despite the protests and objections from the plaintiffs, they i.e the plaintiffs filed the suit on 5th December, 1977 as stated earlier challenging the grant of permission for construction of Mangal Karyalaya by the 1st respondent - Municipal Corporation, Pune on the said plot. The plaintiffs initially also put-forth the ground of nuisance. But same has not been pursued further. The plaintiffs assert that the permission for construction of Mangal Karyalaya has been granted illegally and by exercising the power which the Municipal Corporation, Pune did not possess and therefore the said permission is illegal, ultra-vires, void ab-initio and non-operative. The mandatory injunction is sought against the Municipal Corporation, Pune for rescinding, revoking and cancelling the permission granted as also the renewal thereof. The injunction is also sought against the plot holders restraining them from continuing with construction or using the constructed building for any other purpose like Mangal Karyalaya.
9. It is the case of the plaintiffs that as per Town Planning Scheme No. 1 and Development Plan the said plot was specifically and exclusively ear-marked for being used for residential purpose. The user for the Mangal Karyalaya is not for the residential purpose but for a commercial purpose. The plaintiffs placed reliance on unamended Regulations Nos. 5 and 6 of the Scheme Regulations mentioned earlier, applicable to the T.P.S. No. 1 and asserted that under Rules 5 and 6 of the Regulations, Mangal Karyalaya was not permissible as on the date when the application was made by the plot holders and therefore permitting the plot holders for constructing the Mangal Karyalaya on the said plot is illegal, ultra-vires, etc. As stated, Rule No. 6 of the Scheme Regulation was amended by the Government permitting the Mangal Karyalaya and the some other users in the year 1979. The proposal for such amendment was introduced and submitted in the year 1973. The arbitrator appointed under the M.R.T.P. Act had also recommended the said amendment so also the statutory bodies of the Municipal Corporation, Pune like Standing Committee, Law Committee had also approved the said amendment. However, there was no final sanction given by the Government as required under the provisions of Town Planning Act, M.R.T.P. Act and therefore the plaintiffs contend that such amendment had not come into force and was therefore inapplicable at the relevant time. This is pointed out at this stage as the same will have considerable bearing while resolving the controversy as raised in the matter. In short, according to the plaintiffs, the recourse to the amended provisions of the said regulations at that stage where the matter stood was improper and also illegal.
10. The plaintiffs also raised another objection to the effect that assuming that the amended rule of the Scheme Regulations were applicable even then plot holders do not fulfil and complete the requirements thereunder.
11. According to the plaintiffs, for the purpose of Mangal Karyalaya as per amended rule, the area required in respect of the plot of land should be minimum 10890 Sq.ft. However, the area of the said plot was only 10502 Sq.ft. and area of 10 x 75 ft. is excluded as set back, then the total area would be 9752 Sq.ft. which was substantially below the prescribed area under the regulation and therefore to grant the permission in total disregard of the said requirement was illegal and void ab-initio. According to the plaintiffs, it amounted material and essential change in the Town Planning Scheme and Development Plan itself, which, as per the statute has become a legislative major.
12. As stated the plaintiffs also alleged collusion and legal mala-fide against the Municipal Corporation and it Commissioners.
13. It will be necessary now to briefly advert to the say of the respondents. The 1st respondent-Municipal Corporation, Pune contested the suit of the plaintiffs justifying their action and grant of permission to the plot holders for the construction of Mangal Karyalaya. It is stated that the Commissioner has requisite power to grant the same and same has been done bona-fide as provided under section 147 of the M.R.T.P. Act 1966 and in compliance of provisions of section 487 of Bombay Provincial Municipal Act. The locus standi of the plaintiffs to file and maintain the suit, etc. has also been challenged.
14. As far as grant of permission is concerned, the Municipal Corporation has denied their action being ultra-vires or in excess of the powers vested under the Statute. As the Scheme No. 1 was framed under the Town Planning Act of 1915 it was pointed out that the said Act as also the B.P.T. Act, 1954 did not contain the provisions as now incorporated in the M.R.T.P. Act, 1966 and since the Scheme was being implemented as framed under the old Statute the Commissioner of the 1st respondent Municipal Corporation was entitled and justified and was within his right to use his discretion and grant the permission in public interest. The 1st respondent has denied there-being any violation of the statutory duty or the provision. It is stated that the Commissioner who had granted the permission had exercised his power properly and it is denied that the power used was in excess of the powers vested, or ultra-vires or void ab-initio. It is pointed out that the permission for the construction of Mangal Karyalaya was granted after very close scrutiny of the proposal and the bye-laws and the regulations controlling the development. The allegation of collusion has also been denied.
15. As far as the plot holders are concerned, they supported the various contentions and the stand taken by the 1st respondent-the Municipal Corporation, Pune.
16. The learned trial Judge on the basis of pleadings framed the issues as under and recorded the findings as indicated therein :
(1) Whether the plaintiffs prove that the suit is in representative capacity.
Yes.
(2) If not, whether the suit is maintainable?
Does not survive.
(3) Whether plaintiffs prove that regulations Nos. 5 and 6 under Town Planning Scheme No. 1 are applicable in respect of a Mangal Karyalaya.
Yes.
(4) Whether defendants Nos. 2 to 11 prove that Regulations Nos. 5 and 6 are illegal, ultra-vires and void.
No. (5) Whether plaintiffs prove that Mangal Karyalaya falls in the category of "service industry" or "industry".
No. (6) Whether Defendant the Mangal Karyalaya is a residential building.
No. (7) Whether plaintiffs prove that Mangal Karyalaya is a permanent nuisance to the neighbours and especially considering the various conditions imposed by the defendant No. 1 on defendants Nos. 2 to 11.
No. (8) Do plaintiffs prove that defendants Nos. 2 to 11 have obtained permission in collusion with defendant No. 1 as pleaded in para 15 of the plaint?
Yes.
(8A) Do plaintiffs prove that permission granted by defendant No. 1 to defendant Nos. 2 to 11 is illegal, ab initio void and is granted by usurping powers which the defendant No. 1 did not possess ? If so, whether building in consequence deserves to be demolished as pleaded in amended para 15 of plaint ?
Yes. In both parts.
(9) Whether plaintiffs prove that the Commissioner acted mala fide in granting permission to construct a Mangal Karyalaya to defendants Nos. 2 to 11.
Yes.
(10) Whether plaintiffs are entitled to an injunction when defendants Nos. 2 to 11 are constructing Mangal Karyalaya on their own plot and as per permission from competent authority the Poona Municipal Corporation.
Does not survive.
(11) Whether the defendants prove that the suit of the plaintiffs is mala fide for the reasons given in para 10 of the written statement, of the defendants Nos. 2 to 11.
No. (12) Whether the suit is barred by limitation.
No. (13) Whether the suit is not maintainable under section 486 of the Bombay Provincial Municipal Corporation Act.
The suit is quite maintainable.
(14) Whether notice under section 487 of the Bombay Provincial Municipal Corporation Act is necessary.
No. (15) If yes, whether the suit is maintainable against the defendant No. 1. without giving such notice?
Does not survive.
(16) Whether the suit is barred by acquiescence and laches.
No. (17) Whether the plaintiff's suit is barred by estoppel.
No. (17A) Whether this Court has no jurisdiction to entertain and try this suit. This Court has jurisdiction to try this Suit.
(18) What order and decree? See final order.
17. It will be noticed that on main issues the learned trial Judge has held in favour of the plaintiffs. For that matter issue No. 3 and 8-A and findings rendered thereon are relevant in the present context.
18. The learned trial Judge has recorded that the Town Planning Scheme No. 1 (Varied) has come into effect after following and complying with the necessary provisions of the statute namely Town Planning Act, 1915. The learned trial Judge noted that on the date when the application for grant of permission was made for construction of Mangal Karyalaya and on the date when the permission was granted, the amendment as effected in Rule No. 6 of the Scheme Regulations had not come into force and unamended Rule No. 6 as then existed did not provide for the construction of Mangal Karyalaya, and therefore the grant of permission for the construction of Mangal Karyalaya was illegal. The trial Court also noted that the material requirements were not complied with, with regard to the area of the land and the set back area. It also negatived the contention of the plot holders that the Regulation Nos. 5 to 6 were illegal or ultra-vires.
19. The 1st Appellate Court while reversing the findings of the trial Court has proceeded to hold that the user of the Mangal Karyalaya cannot be said to be a residential user but the amended Clause of regulation is incorporated into Regulation No. 6 as 6-d provided the construction of Mangal Karyalaya and the Municipal Commissioner of the Municipal Corporation, Pune the 1st respondent was justified in taking into consideration the proposed draft regulation. More so when the proposed amendments were approved by the 1st respondent, its statutory bodies and as also by the Arbitrator appointed under M.R.T.P. Act, 1966. The 1st Appellate Court also recorded that as per Regulation 247-A of the Development Regulation the Commissioner had discretion to grant the relaxation and or concession to avoid hard-ship or in public interest. The 1st Appellate Court therefore recorded the finding that the Commissioner of the Municipal Corporation, Pune - the 1st respondent has processed the proposal for the construction of Mangal Karyalaya after taking into consideration the statutory provisions, the prevalent rules and regulations including the amendment by way of draft regulation to Rule No. 6-d as was then pending for consideration. The history as to how the Commissioner of the Municipal Corporation, Pune considered and processed the proposal right from the date it was submitted and till date of grant of the permission has been traced and it is noticed that the said proposal of the plot holders was considered by two different Commissioners. The 1st Appellate Court did not find any illegality in the grant of such permission. In fact, it noted that various actions or steps taken by the Municipal Commissioner of the Municipal Corporation, Pune were protected under the provisions of section 147 of the M.R.T.P. Act 1966 and therefore, the suit as filed was not maintainable. With that view of the matter, the 1st Appellate Court also held that the Development Regulation were of a directory nature and not mandatory and Commissioner of the 1st respondent was within his right to exercise his discretion to remove the hardship and in public interest. It needs to be stated that the public interest as noted by both the Courts below is that in the said locality where the said plot was situated there existed no Mangal Karyalaya and therefore, it was a need of the residents of that locality.
20. With this view of the matter, the 1st Appellate Court proceeded to set aside the decree passed by the Court of first instance and dismissed the suit of the plaintiffs.
21. In the second appeal arguments have been advanced and various law points have been urged which were not focused or addressed before both the courts below. In asmuchas on behalf of the appellants, it is contended that the Regulations No. 247-A which the 1st Appellate Court has taken into consideration and which confers discretionary power upon the Municipal Corporation, Pune and by recourse to the same regulation, the Commissioner has proceeded to grant the permission was illegal and ultra-vires to the main statute namely M.R.T.P. Act of 1966. Alternatively, it is also submitted that the said Regulation No. 247-A was wrongly applied in the instant case. It is suggested that the types of relaxations that have been granted to the plot holders while granting permission for construction of Mangal Karyalaya could not have been done by recourse to the Regulation of 247-A. It needs to be stated that this aspect has not been specifically emphasised and highlighted before both the courts below.
22. Similarly, on behalf of the respondents, the point is raised that the suit of the plaintiffs was expressly barred under the provisions of section 149 of the M.R.T.P. Act, 1966. It is contended that the permission to the construction of the Mangal Karyalaya has been granted in respect of the said plot which forms the part of the Town Planning Scheme and Development Plan and therefore, the permission has been granted as provided under section 46 of the M.R.T.P. Act, 1966 and section 149 of the said Act attaches finality to the orders passed under the provisions of the said Act and the same cannot be questioned in any suit or legal proceedings before the Court of law. I may add, that, this being the point of law, the parties were entitled to urge the said point and in fact a great deal of argument was advanced on behalf of both the sides. This aspect will be dealt with later on in the course of this Judgment.
23. As noticed earlier, the fact that provisions of M.R.T.P. Act and various Rules and Regulations made thereunder are very much applicable to the said plot is not in dispute. Therefore, the development and for that matter the construction of the plot in question will be subject to the provisions of the M.R.T.P. Act, 1966 and the rules and regulations made thereunder. It will therefore, be necessary to briefly advert to the Scheme of the M.R.T.P. Act, 1966. As noticed earlier, although the scheme in question was framed and finalised under the B.M.P, Act of 1915 and the Rules and Regulations were made in the succeeding Act of 1955, M.R.T.P. Act, 1966 although repealed the earlier, these two Acts, the various schemes and development plans made have been saved by the 1966 Act. The reference be made to section 165 of the said Act. The preamble of this Act itself sets forth the very object and purpose of this Act. It seeks to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards, to make better provisions for the preparation of development plans with a view to ensuring that Town Planning Schemes are made in a proper manner and their execution is made effective and provide for the machinery - for its development, for its preparation and for its implementation also. The making of the provision for planning, development and use of land and for that purpose establishment of proper machinery is the main emphasize of the said Act. It is a self contained Code in itself on the specific subject viz. planning and development, which provides also remedial measures therein. Section 2 defines development plan as under :
Sub-section (9) of section 2 "Development plan" means a plan for the development or re-development of the area within the jurisdiction of a Planning Authority (and includes revision of a development plan and) proposal of a special Planning Authority for development of land within its jurisdiction)."
Sub-sections (27) and (29) of section 2 defines 'Regulation' and 'Rule' as under:
"(27) "Regulation" means a regulation made under section 159 of this Act and includes zoning and other regulation made as a part of a Regional Plan, Development Plan, or Town Planning Scheme; (29) "Rule" means a rule made under this Act."
Section 159 of M.R.T.P. Act, 1966 provides for the framing of the regulations. As noticed earlier, we have here two sets of regulations namely Scheme Regulation and Development Regulations. Besides, there are rules known as Building Bye-laws, made by the 1st respondent under the Bombay Provincial Municipal Act, reference of which has been made by both the courts below. It is undisputed position that both these sets of rules i.e. Development & Scheme concern and pertain to the Development Plan & Development Scheme. That being so same are under provisions of the M.R.T.P. Act of 1966. The said regulations have been duly framed and approved by the authorities of the Government under the Act. As pointed out earlier the Scheme in question namely the Scheme No. 1 is a finally approved scheme is not in dispute. This being the position, it will be necessary to state that under section 86 of the said Act such Scheme and the Rules and Regulations framed relating to such scheme become part of the statute. In that sub-section (3) of section 86 provides:
"(3) On and after the date fixed in such notification, a town planning scheme shall have effect as if it were enacted in this Act."
(emphasise supplied).
Therefore the development regulations as also the Scheme Regulations are now forming part of the statute itself. If this is a position as is clearly evident and apparent from the statutory provisions, the observations of the 1st Appellate Court, that the Rule 5 and 6 appearing in the Scheme Regulations are of a directory nature, in my view will not be a correct portion and the same requires to be rejected. As a matter of fact that Scheme Regulations 5 and 6 to which we are concerned in this matter appear in the Scheme regulation and entire scheme regulation having been finally approved have become a part of the statute. It is therefore, statutory mandate and they cannot be said to be of a directory nature as has been erroneously held by the 1st Appellate Court.
24. The next important provision as far as present matter is concerned is that contained in Chapter IV of the said Act i.e. M.R.T.P. Act with the heading "Control of development and use of land included in development plans." Once the development plan is sanctioned after following the procedure as prescribed in that behalf then the development of land included in such sanctioned scheme is subject to the restrictions imposed on the Development Plan and Scheme and as laid down in Development Regulations and Scheme Regulations. Anyone desirous to develop the land has to submit his application before the appropriate authority like the 1st respondent - Municipal Corporation, Pune, seeking permission for the development. Section 45 then enjoins and empowers the concerned authority to grant or refuse the permission. Section 46 makes the provision about the factors which such sanctioning authority should take into consideration while granting or refusing the permission. Section 47 provides the remedy to the applicant desirous of developing his land in the event of refusal of permission. Section 50 provides and also gives powers to the appropriate authority for revocation and modification of the permission granted.
25. It is, therefore, clear that in the instance case the permission which was sought by the plot holders for the construction of Mangal Karyalaya on the said plot of land was in accordance with the provisions of Chapter 4 of M.R.T.P. Act, 1966. The Municipal Corporation, Pune-the 1st respondent were the appropriate local authorities in-charge of and or concerned for the implementation and working of the Town Planning Scheme in question. Therefore, the said authority is to exercise his power while granting the permission within the four corners of the said provision, as contained in Chapter 4 of the said Act. It will be, therefore, necessary to consider whether in the case herein the various provisions as contained herein as also in the Rules and Regulations framed in that behalf have been followed or not.
26. At this stage, it is necessary to add one more factor. The Municipal Corporation, Pune-the 1st respondent herein has been constituted under the provisions of Bombay Provincial Municipal Corporations Act, 1949. The rules known as Building Bye-laws have also been prepared and are in force. At the outset it needs to be clarified that the said plot being part and parcel of the Town Planning Scheme, the same will be subject to the provisions of M.R.T.P. Act and the Rules and Regulations made thereunder such as Development Regulations and Scheme Regulations. In case of conflict between the Rules and Regulations as framed under the provisions of M.R.T.P. Act, to be precise, Development Regulation and Scheme Regulations in one hand and the Building Bye-laws framed under the provisions of Bombay Provincial Municipal Corporation Act, 1949, it is made abundantly clear that the Regulations made under M.R.T.P. Act would prevail. This aspect is clarified at this stage itself, as it is noticed from the impugned judgment of the 1st Appellate Court that there is repeated references made to the rules and Bye-laws and the provisions as contained in the B.P.M.C. Act, 1949. As stated earlier, during the course of arguments in this Second Appeal both the parties have raised some of the points which were not urged before both the courts below. Further, some of the points although raised and urged before the courts below were not so done in the proper perspective as ought to have been done and as had been done before this Court. It will, therefore, be necessary to crystallize the points which have been urged :-
(1) Bar for the institution of the suit in the Court under the provisions of section 149 of M.R.T.P. Act.
(2) The compliance and or non-compliance of provisions of section 46 of M.R.T.P. Act, 1966 in grant of permission for construction of Mangal Karyalaya.
(3) The efficacy and sanctity of the regulation such as Development Plan Regulation and Scheme Regulations.
(4) True effect and scope of the amended draft regulation of Regulation No. 6-d in the scheme regulation. For that matter whether Commissioner of the 1st respondents was justified and within his right in applying the same while granting the permission.
(5) The true meaning, effect and import and sanctity of Regulation No. 247-A of the Development Regulations and how far and whether the Commissioner of the 1st respondent was justified in exercising his discretion thereunder.
(6) The mala-fide as alleged by the plaintiffs in that matter whether it is legal case of mala-fide.
(7) The relief claimed by way of declaration and injunction.
These are the main points which have been highlighted before this Court.
27. The objection with regard to the bar of suit as contained in section 149 of M.R.T.P. Act. Section 149 of the said Act proceeds as under:
"149. Finality of orders.---Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
28. It will also be relevant to note that section 147 of the said Act which seeks to protect action taken by any authority acting under the Act. Said section reads:
"147. Protection of action taken in good faith.---No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules or regulations made thereunder.
29. By reading both sections reproduced hereinabove, it will be obvious and apparent that the Legislature having regard to the principal objects of the Act thought it wise and proper to put restrictions upon any action of the functionary of the said Act being subjected to challenge, in the Court of law and for that matter for the scrutiny of the Court. The order or direction taken by any functionary under the said Act have been given finality as such. Section 149 seeks to provide the same. Not only that, section 147 which is reproduced hereinabove also bar any suit against any Officer or Functionary acting under any Act. There are two important aspects to be borne in mind. Firstly that action or order contemplated and envisaged must be under said Act i.e. M.R.T.P. Act, 1966 and the rules and regulations made thereunder. Section 147 also includes any action not only taken or done under this Act but also under the Rules and Regulations made thereunder. Further such action must be done in good faith. Therefore, the State itself casts upon various functionaries under the said Act to act in good faith and their actions and orders have to be strictly in accordance with the provisions of the said Act.
30. While considering the objections as raised by and on behalf of the respondents to the maintainability of the suit of the plaintiffs under the provisions of sections 147 and 149 of M.R.T.P. Act, 1966, it will also be necessary to consider whether and this is very important and basic issue that the action taken or any order passed by the Commissioner of Municipal Corporation, Pune is in good faith, and is also in accordance with the provisions of the Act and Rules and Regulations made thereunder or not. If it is proved and established and so held that the order passed or power exercised is under the provisions of the Act and the Rules and Regulations made thereunder, then power as envisaged under section 147 as also under section 149 would certainly come into play and suit will not be competent if that is the case. Keeping in mind these principal objects, it will be necessary to consider the objections with regard to the bar of the suit as raised before this Court. Section 9 of the Code of Civil Procedure gives the general power to the Civil Court to try all suits of civil nature excepting suits of which cognizance has been expressly or impliedly barred. Jurisdiction means the local authority to administer justice according to the means which the law has provided and subject to the limitation imposed by the law upon the judicial authority. The limitation imposed by law upon the judicial authority of any Court may be territorial or pecuniary or may refer to the subject matter of the litigation or nature of litigation. In the context of issue in the instant matter same would certainly relate to the subject matter of the nature of litigation.
31. When any Statute seeks to expressly bar the jurisdiction of the Civil Court, such bar must be clear and legislature's intendment must be very explicit. The order passed by an Officer authorized to do so under the Act, rightly or wrongly in ignorance of law or mis-application of law would be all the same order passed under the Act imposing bar upon the suit.
32. This aspect has been highlighted by and on behalf of the respondents when it was urged that undisputedly the said plot being a part of Town Planning Scheme and being developed under the said Scheme, the permission applied for and granted is under the provisions of Chapter IV of the M.R.T.P. Act, 1966. The application was made for the grant of permission and permission has been granted under the provisions as contained in Chapter IV of the M.R.T.P. Act, 1966. Therefore, there is no doubt, the learned Counsel for the respondents contends that in the instant case order has been passed under the provisions of M.R.T.P. Act, 1966 and that being so as provided under section 149 there is an express bar to the institution of the suit. Therefore, the suit is not maintainable.
33. The said contention is sought to be repelled by and on behalf of the appellants. It is submitted that both the sections i.e. 147 and 149 would attract provided the authorities concerned, in the instant case the Municipal Commissioner of Municipal Corporation, Pune, has exercised the power and passed the order in accordance with the provisions of the Act and the Rules and Regulations made thereunder. It is submitted that grant of permission for the construction of Mangal Karyalaya is against the provisions of the M.R.T.P. Act and the Rules and Regulations made thereunder as also the Development Plan and the Scheme. In that in 1976 when the permission was granted, the proposed amendment to the Regulation No. 6 which permitted the user of the plot for the Mangal Karyalaya was not in existence as the same was not sanctioned then by the Government as required under the provisions of M.R.T.P. Act. The Commissioner has under the guise of exercising his discretion has allowed the user of the land which was not permissible under the Town Planning Scheme and Development Plan framed under the M.R.T.P. Act, 1966. This being the position, the learned Counsel for the appellant urged that the order and or action of the Municipal Commissioner of the Municipal Corporation, Pune - 1st respondent herein cannot be said to be an order under the M.R.T.P. Act of 1966 and therefore the questions of express bar would not apply.
34. Certain authorities were also referred to by and on behalf of both the parties. Reference is made to the decision of the Supreme Court in the case of Firm Seth Radha Kishan & others v. Administration, Municipal Committee, Ludhiana, . It is held in the said decision that suit in Civil Court will always lie to question the order of the tribunal created by a statute, even if it's order is , expressly or by necessary implication, made final if the said tribunal abuses its power or does not act under the Act, but in violation of its provisions. Next decision is in the case of Dhulabhai etc. v. State of Madhya Pradesh & another, . In the said decision the reference of the case of Firm Seth Radha Kishan, (supra) has also been made. Seven guidelines regarding exclusion of jurisdiction of Civil Court were laid down by the Apex Court and the same are:
"(1) Where the Statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do, in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have been complied with or the statutory tribunal has not acted in conformity with fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra-vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not "compulsory remedy to replace a suit."
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the Scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: Case law discussed."
35. The Guide-line No. 6, will be germane as far as the matter in hand is concerned. It implies that the jurisdiction of the Court to deal with cases can be excluded by the legislature by Special Act as in the case of M.R.T.P. Act, 1966 which deals with special subject matters. It means the statute creating bar must deal with a special subject matter.
Provisions as contained in section 149 of the M.R.T.P. Act, 1966 makes any order, direction, etc. of the Functionary under the said Act final and expressly bars recourse to the Court. Section 147 in addition provides further protection. It is significant to note that the Previous Statutes of 1915 and 1955 did not contain the provisions as enjoined in section 149 The bar contained in section 149 is a general bar against any order or action taken under the said Act. The provisions of M.R.T.P. Act as its preamble indicates are designed to ensure planning and development of the lands in the regions, preparation and implementation of the plans, etc. by the various authorities under the Act exercising the power of eminent domain to serve the pubic purpose and interest. The Act is a Complete Code in itself and is meant to serve public purpose. The Legislative intent is very clear from its various provisions. In that wherever it thought is necessary, it provides remedy for adjudication in the Act itself by the Court. For instance issues as arising under section 71 and section 51(3) are made determinable by the Courts. The M.R.T.P. Act deals with the specific subject matter of planning, development, construction of buildings, which are highly technical and specialized subjects and therefore orders and steps by the authorities entrusted with the powers to implement the same have been made final by the statute itself to avoid any impediments in its implementation.
36. It would be necessary to notice whether the order passed by the Commissioner of Municipal Corporation, Pune granting permission to the plot holders for the construction of Mangal Karyalaya is an order in accordance with the provisions of M.R.T.P. Act 1966 or it is in violation of the provisions of the said Act. The answer to this would resolve the controversy whether the Civil Court will have jurisdiction to entertain the plaintiffs' suit or not.
37. In order to properly appreciate the controversy in question it has to be seen whether in the first instance the Commissioner of the Municipal Corporation, Pune has exceeded his power and authority and acted in violation of the statutory provision, regulations while granting the permission to the plot holders for the construction of Mangal Karyalaya.
38. As noticed earlier the fact that the development plan has been duly approved and sanctioned so also its scheme being Scheme No. 1 (Varied) is not in dispute. There are regulations framed for the implementation and working of the said scheme by the Municipal Corporation, Pune as the planning and implementing authority under the Act and which have been duly approved by the Government as required under the M.R.T.P. Act, 1966. These rules, as stated earlier, are in two sets - Regulations pertaining to the Scheme and the Development Regulations. The rules pertaining to the scheme were formulated in the year 1939 and the same were amended in the year 1979. Rules 5 & 6 of the said Scheme which are known as building rules are relevant and the same before amendment read as under:--
"5. The area included within the scheme is intended mainly for residential purposes and as such dwelling-houses, tenement houses, chawls together with outhouses, stables, garages necessary for the reasonable convenience of the main buildings shall only be erected and the use thereof as also any other already existing building restricted to residential only except that :-
(i) Godowns, workshops, small factories could be erected and used for the specific purpose in the areas marked for this purpose and shown coloured in orange wash on plan No. 5.
(ii) Shops, business premises and shopping and business user would be permitted in the areas marked for this purposes and shown coloured in blue wash on plan No. 5.
(iii) Buildings of the nature of public buildings only shall be constructed on plots reserved, allotted or acquired for public purposes and no trade, manufacture or display of goods for sale shall be permitted.
6. Notwithstanding anything contained in the above regulation the Local Authority may on being convinced of the necessity thereof in public interest permit the construction of shops or similar structures for service industries or permit the change of user of part of the existing buildings from residential to shopping or service industry user on plots fronting on roads which have a width of 40 feet or more.
Provided that no such permission shall be granted unless the owner of the plot pays an extra contribution to the Local Authority at the following rates:-
Rs. 15 per sft. of the total frontage of the plot on:
(1) Fergusson College Road.
(2) Jangalimaharaj Road.
(3) Shivaji Road.
(4) The area of Final Plot Nos. 984 to 991.
Rs. 7.50 per rft. of the road frontage subject to "minimum of Rs. 500 of plots fronting on any other roads."
39. It will be noted by reading the above mentioned rules that the area falling under the Scheme No. 1 is expressly earmarked and designated as a residential purpose except the concession made in respect of the Godown, workshop, small factories, etc, and as mentioned in particular Regulation No. 5. Regulation No. 6 makes the exceptions in respect of the user of the land and confers certain power and discretion upon the local authority, i.e. in the instant case the Municipal Corporation, Pune to grant certain relaxations and concessions in public interest for permitting the construction of the shops or similar structure for service industrial or permit the change of user of the existing building from residential to service or industrial user of plots frontage road which have width of 40 ft. or more on payment of extra contribution to the local authority by the owner of the plot seeking the avail of the benefit of the said concession. It is relevant to note that on the date when the plot holders applied for the permission for the construction of their Mangal Karyalaya on the said plot the Rules 5 and 6 as reproduced hereinabove were in force.
40. In 1979 these rules in particular Rule No. 6 was amended and the amended rule provides as under:
"6. Notwithstanding anything contained in the above regulation on plots, not less than 1/8th of an acre in area, the Local authority may, on being convinced of the necessity thereof in public interest -
(a) Permit "shopping or service industry user" in front portion of new or existing residential buildings on plots fronting on roads 40 feet or more in width on payment of extra incremental contribution at the ratio of Rs. 15 per running foot of the total frontage of the plots on (1) Jangalimaharaj Road along with its continuation up to Bombay-Satara Road.
(2) Fergusson College Road (3) Karve Road and (4) Shivaji Road and Rs. 10 per running foot on all other roads.
Such shopping shall not extend in more than three building plots in one stretch at the discretion of the Local Authority. The shopping user belt shall not extend beyond 45 feet from the edge of road.
The mezzanine floor of 8 feet height may be permitted to be constructed in a shop at a height of 8 feet from the finished floor of the shop. Provided that such a floor does not cover more than 50% of carpet area of the shop, shall have no other access except from the shop and its use be restricted to storage of material only.
No shops shall be permitted on Ganeshkhind Road.
(b) Permit "Commercial user" on plots fronting on roads 60 feet or more in width, on payment of-
(i) Rs. 2 per sft. of the plot area in respect of plots on Jangalimaharaj Road;
(ii) Rs. 1.50 per sft. of plot area in respect of plots fronting on (1) Fergusson College Road, (2) Ganeshkhind Road, (3) Shivaji Road, (4) Karve Road, (5) 80 feet Road along Alka Talkies up to its junction with Satara Road and (6) 60 feet wide Senapati Bapat Road.
The mezzanine floors in such buildings shall not cover more than 1/4 the area of the room or hall.
(c) Permit "Office user" for Government or other public offices on plots fronting on a road at least 40 feet in width on payment of premium of Re. 1 per sft. of the plot area. Such buildings shall be set back at least 20 feet from the road boundary.
(d) Permit an exclusive "Mangal Karyalaya" user on a plot admeasuring not less than a quarter of an acre in area and fronting on a road 40 feet or more in width on payment of a premium of Re. 1 per sft. of the plot area. Such buildings shall be set back at least 30 feet from the road boundary.
(e) Permit construction of a small branch office of a Bank and Post Office not covering a plinth or floor area more than 1,200 sft of an existing or new residential building in a plot fronting on a road 40 feet or more in width on payment of a premium of Rs. 3 per sft. of the plinth or floor area occupied for such user.
(f) Permit a "Cinema" user on a plot of suitable size and location on payment of extra incremental contribution at Rs. 15 per sft. of the total frontage of the plot provided that such a plot has a frontage on a road at least 50 feet in width."
41. It will be noticed by reading the Clause No. 6 after the amendment that the change of substantial nature have been made therein. As far as the case in hand is concerned, the sub-clause No. (d) will be relevant and material. In asmuchas the user of Mangal Karyalaya on a plot of land falling in the said Scheme No. 1 has been permitted. It will be noticed by reading Clause (d) that such user is permitted on certain condition namely the area of the plot sought to be used as Mangal Karyalaya should admeasure not less than a quarter of acre and fronting of a road of 40 feet or more in width on payment of Re. 1 per Sq. Ft. of the plot area and thirdly such building shall be a set back at least of 30 feet from the road boundary.
42. It is necessary to mention that on the date when the plot holders made application for grant of permission for construction of Mangal Karyalaya, it is a matter of record that the proposal for such amendment was mooted much prior thereto i.e. in the year 1973. The Arbitrator appointed under the M.R.T.P. Act had already given his approval for such amendment. The statutory bodies of the Municipal Corporation, Pune such as Standing Committee and Law Committee have also given their approval for such amendment. It is quite clear that in the unamended Rule No. 6 of the said Scheme Regulation user of the plot for Mangal Karyalaya was not permissible but by amendment thereof the same was made permissible on the terms and conditions as mentioned therein and as noticed earlier.
43. As a result of amendment one thing will be clear that the local authorities i.e. implementing authorities namely the Municipal Corporation, Pune was authorized to allow the user of the land falling under the Scheme No. 1 for Mangal Karyalaya which is other than the residential us. Now the question is whether the Commissioner of Municipal Corporation, Pune was right and justified in giving due regard or consideration to the proposal of the amendment of Rule No. 6 while granting permission to the plot holders. It needs to be stated that on behalf of the plaintiffs it is submitted with considerable amount of vehemence that since the amended Regulation No. 6 was not received the Government approval as required under the M.R.T.P. Act 1966, the same has not become the Rules or Regulations which can be said as validly enacted regulation, and therefore, the Commissioner of the 1st respondent was not justified and was not right to consider the same. In this context and the background, great deal of arguments have been advanced by both the sides with force and in the light of provisions of section 46 M.R.T.P. Act of 1966.
44. Before I consider this aspect, it will be necessary to make reference to yet another set of regulations on the subject viz. the regulations known as Development Regulations. These Development Regulations are appearing in Chapter XIII as far as Scheme No. 1 is concerned in the regulation framed by the Municipal Corporation Pune---the 1st respondent herein, copy whereof has been made available before the Court. The preamble of the said regulations read:
"Regulations for enforcing the provisions of the development plan and for explaining the manner in which necessary permission for developing any land can be obtained from the Pune Municipal Corporation."
The said regulations start from Regulation No. 207 to 247-A. The Regulation No. 208 is also important and has considerable bearing while interpreting the provisions of the said development regulations, in the application to the Scheme No. 1 Regulation No. 208(1) reads as under:
"208. For regulating the developments and building constructions on lands falling within the area of the Town Planning Scheme No. 1 (Final) (under valuation) the following regulations will apply:
1. The regulations proposed by the Local Authority in the draft varied Town Planning Scheme No. 1 will apply till the said draft varied Town Planning Scheme becomes final. After the draft Town Planning Scheme No. 1 (varied) becomes final, the regulations contained in the Town Planning Scheme No. 1 (Final) (varied) will apply."
45. It is clear from the preamble of the development regulations and Clause No. 208(1) reproduced hereinabove that the said regulations have been enacted for enforcing the above provisions of the development plan and for explaining the manner in which necessary permission for developing any land can be obtained from the Municipal Corporation, Pune in respect of the Scheme No. 1 (Final) (Varied). These regulations have received sanction by the Government under TPS-1865-M, dated 7th July, 1966 and came into force with effect from 15th August, 1966. Therefore, there may not be any dispute that when the plot holders applied for the permission, these development regulations were very much in force and applicable to the said plot. The object of enactment of these regulations are to regulate the development and the building constructions on land falling in the area of the Town Planning Scheme No. 1 (Final) (Under Variation). Sub-clause No. 1 of Regulation No. 8 reproduced hereinabove also makes it clear that the regulation proposed by the local authority in the draft in respect of the said scheme will be also applicable for regulating the development and the building construction on the land. It would therefore, clearly mean that these two sets of rules viz. Scheme Regulations and Development Regulations are supplementary and complimentary to each other. This is being clarified at this stage itself because of the contention raised by and on behalf of the plaintiffs that the regulations pertaining to scheme are the main and major regulations and in case of conflict between these two sets of rules the development regulation may and should yield to the Scheme regulations. This is done as it is submitted on behalf of the Municipal Corporation, Pune that vide Rule 247-A of the Development Regulations, discretion is vested upon the Commissioner of the Municipal Corporation, Pune to permit modification in any of the requirements prescribed by any such regulations with a view to remove the grave hardship. Rule 247-A is as under:
"247-A. Notwithstanding anything contained in the foregoing Regulation it shall be in the discretion of the Commissioner to permit any of the requirements prescribed by any such regulation to be modified with a view to remove grave hardship."
46. The 1st Appellate Court has held that Commissioner was right and within his power to grant the relaxation to the plot holders and permit them to construct the Mangal Karyalaya with a view to remove grave hardship and such power was available under said Regulation No. 247-A.
47. It was contended on behalf of the appellants that discretion as provided in Regulation No. 247-A was not available to the Commissioner of the Municipal Corporation, Pune while he granted permission to the plot holders to construct the Mangal Karyalaya. It is submitted that the discretion contained in Rule No. 247-A would be available if the power is exercised under "such regulation" meaning and implying thereby that such discretion is only restricted while/construing and applying the Rule namely development regulations and same cannot be applied to the scheme regulations. This has been disputed and countered by and on behalf of the respondents. It is submitted that the expression appearing "such" in 247-A should not be given such a narrow and restricted meaning. It is stated on behalf of the respondents that the regulations of the scheme and development pertaining to the development are supplemental and complimentary to each other and the same should not be applied or construed as if in the two separate compartments. A great deal of emphasize is placed on the preamble of the development regulations reproduced hereinabove and in particular Regulation No. 208(1) also reproduced hereinabove. Therefore, by reading the purpose and object of framing the regulations in two parts what is sought to be achieved is proper and effective implementation and working of the Town Planning Scheme No. 1. Both set of regulations have been framed as the record reveals, by the 1st respondent-Municipal Corporation, Pune. The scheme regulations contain the details and elaborate particulars with regard to the specific user of the lands falling under the said scheme and types of user that could be permitted and allowed in the development of the plots falling under the said scheme. Whereas, guide-lines to be followed, as the preamble of development regulation provides, while enforcing the provisions of the development plan are made in Development Regulations. The expressions appearing as development plan is very material. I have already reproduced hereinabove the definition of development plan as appearing in the M.R.T.P. Act of 1966. The definition of the development plan is too wide and comprehensive. The development plan means a plan for the development or re-development of the area within the jurisdiction of the Planning Authority and would include the revision of a development plan and the proposal of special planning authority for development plan within its jurisdiction (emphasise supplied). Considering the comprehensive definition of development plan as it appears in the said M.R.T.P. Act, 1966 it also includes not only the development plan as originally sanctioned, but it also covers revised development plan and what is important, proposal of the special planning authority like the 1st respondent Municipal Corporation, Pune for the development of the land within its jurisdiction. Therefore, considering the scope and import of the definition of development plan mentioned hereinabove it is not possible to accept the submissions advanced on behalf of the plaintiffs that the regulation pertaining to the development would not be applicable, while implementing and giving effect to the Town Planning Scheme. As a matter of fact, the purpose and main object of both sets of regulations is to ensure proper implementation of the Scheme and Development and as such the same would go hand in hand and they should provide to each other as supplementary and complimentary. There is no question there being any conflict as such. Their area and their purpose are different but object is the same, namely the implementation of the Town Planning Scheme. It needs to be noted that the framing of the Scheme and preparation of the development plan as such are the steps at the stage of formation and planning. The implementation of such scheme and plan is a distance aspect although closely and intimately connected. While giving effect to or implementing such approved scheme and sanctioned Development plan, various factors would need for consideration, depending upon the situation, location of the land and public need. Building construction is a technical subject highly intricate and complicated as such. Therefore, sort of guidelines as provided in Scheme and Draft Regulations are necessary for the followance of implementing body, like 1st respondent. It is therefore, not possible to accede to the submissions made by and on behalf of the plaintiffs for giving restrictive and limited meaning as sought to be contended. In my view Regulation No. 247-A would be available to the Municipal Commissioner of the 1st respondent while giving effect to and in the implementation of the scheme as per regulations contained in regulations pertaining to the scheme. Therefore, while processing the proposal in the matter herein, the Commissioner was within his right and power, to exercise his discretion under the said Regulation No. 247-A.
48. Now the next question that calls for consideration is whether by exercising the discretion the Commissioner of the Municipal Corporation, Pune has excessed the power and authority conferred upon him and has acted in excess or in defiance of the statutory provisions while granting permission to the plot holders for the construction of Mangal Karyalaya on the said plot.
49. Rule 6-d of the Scheme Regulations as amended, as noticed earlier, does provide and permit the construction of Mangal Karyalaya on the plot falling in the Scheme No. 1. It is true that in the year 1976 when the plot holders applied and also the date when permission was granted by the Municipal Commissioner of 1st respondent - the Municipal Corporation, Pune, the amended Rule 6(d) had not become part of the Scheme in the sense that there was no sanction received from the Government as required under the M.R.T.P. Act 1966. But none-the-less it needs to be stated that the proposal as was duly approved by one of the major functionaries under the M.R.T.P. Act 1966 namely by the Arbitrator appointed thereunder had also given his consent for the said proposal. We have noticed earlier, that the amptitude of the definition of development plan as understood and meant in the context of provisions of M.R.T.P. Act of 1966 is too void and comprehensive to include even the proposal for the development. It clearly shows that on the date when the application from the plot holders was received and when the permission was granted draft regulations in a form of proposed amendment were before the Municipal Commissioner of the Municipal Corporation, Pune. The Arbitrator had given his consent and okayed and given approval for the same and the statutory bodies of the 1st respondent Municipal Corporation have also accepted and given their approval for the same.
50. There is one more aspect which would also require to be taken into consideration. It is not in dispute that the permission for the construction of Mangal Karyalaya was applied by the plot holders in accordance with the provisions as contained in Chapter IV of M.R.T.P. Act 1966. Section 44 for that matter requires for submission of application for the purpose by the plot holders. Then section 45 empowers the planning authority to grant or refuse the permission and while so doing, it is made imperative as provided under section 46 of the said Act what factors and matters should be weighed and considered while granting or refusing the permission. Section 46 enjoins as under:
"46. Provisions of development plan to be considered before granting permission---The Planning Authority is considering application for permission shall have due regard to the provisions of any draft or final plan (or proposals) (Published by means of notice) (submitted or sanctioned under this Act."
51. The plain reading of section 46 will make it clear that while giving or considering the application for permission submitted by the plot holders the concerned authorities in the instant case the Commissioner of the 1st respondent-Municipal Corporation was required to consider and give due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under this Act. It, therefore, means that the planning authorities has also to give due regard to not only the plan which has been sanctioned under the Act but also the proposal submitted under the Act. As noticed earlier, their amendment to Regulation No. 6 pertaining to the scheme regulations was mooted in the year 1973 itself. The Arbitrator has also given his approval to the same. The Arbitrator is a functionary under the M.R.T.P. Act of 1966 and his recommendation carries weightage. It is also noticed that the statutory committees of the Municipal Corporation, Pune like Standing Committee and Law Committee have also considered the said proposal for amendment of Regulation No. 6 and given their approval. Therefore, the proposal for amendment was considered, processed and approved by the functionaries under the said Act. It is also to be noted that the 1st respondent-the Municipal Corporation, Pune is not only the planning authority but also the implementing authority of the Town Planning Scheme. The said authority has prepared the proposal effecting the amendment to the Regulation No. 6 as early as in the year 1973 and the same was duly processed as required under the Act. In asmuchas the Arbitrator appointed under the M.R.T.P. Act has his voice and say in the matter of such amendment or modification who had also given his approval.
52. That being the position, the submissions advanced by and on behalf of the plaintiffs that the proposal for amendment ought not to have been taken into consideration by the Commissioner of Municipal Corporation cannot be accepted. It is noticed from the judgment of the 1st Appellate Court that the Commissioner while processing the proposal submitted by the plot holders had taken into consideration various factors. As many as two Municipal Commissioners have processed the said proposal. The 1st Appellate Court has in paragraphs 65(a) to (k) of the judgment given in detail the course of events that preceded the grant of permission and how the proposal in question came to be processed at different stages by different officials of the 1st respondent. Apart from the fact that the Commissioner has perused the note submitted by the City Engineer, it is noticed that the very proposal was also referred to the Arbitrator working under the Act and he also gave his consent on certain terms and cleared the proposal for Mangal Karyalaya. The proposal remained under process for a period of two years and the 1st Appellate Court has noted the said fact in his judgment.
53. On behalf of the plaintiffs, it was pointed out that even the proposal which is sanctioned is illegal and contrary to the provisions of the law and the regulations. It was urged that the plot holders were not entitled to the permission for the construction of Mangal Karyalaya because of non-compliance of the conditions, even if it is held that amendment (d) of Rule 6 was to be applicable. It is stated that the area of the plot was less than the prescribed limit. The 40 ft. road at front was not there as the width of that road is only 30 feet.
54. Now, the fundamental question is whether the Commissioner of the 1st respondent was right and justified in granting relaxation and concession to the plot holders in respect of the area as also set back. The next question is whether the Commissioner of the 1st respondent was within his power to grant such concession by exercising discretion as provided in Rule 247-A of the Scheme Regulations. The question would also arise as to whether the concession and or relaxation granted is of such a nature and to such an extent that it destroys, materially or affects the basic structure of the development plan and the town planning scheme and therefore against or contrary to the statutory provision.
55. On behalf of the plaintiffs, reliance was placed on the decision of the Division Bench of this Court in Special Civil Application No. 5493 of 1976 in the case of Shridhar Ramchandra Sathe and others v. The Municipal Corporation and another, decided on 10th October, 1978 by the Division Bench comprising of Justice Dharmadhikari (as he then was) and Justice Kurdukar (as he then was). It may be stated that said decision also has been cited before the courts below. The 1st respondent were also the 1st respondent in the said matter. It is noticed that in the said case the sanctioned development plan prescribed inter-alia 5 feet set back from the regular line of public street. Vide Special Resolution No. 226 (1), however, the Municipal Commissioner of the Municipal Corporation, Pune the 1st respondent herein, took decision to relax the said prescription altogether in all the cases. When this was questioned, the Commissioner of the 1st respondent contended he having done so in public interest by exercising discretion in accordance with Regulation No. 247-A of the Regulation of Development.
56. The Division Bench in the said decision went into the various contentions urged with regard to the power of the Municipal Commissioner as implementing authority of the town planning scheme of the development plan and after examining the various aspects of the matter and various Rules and Regulations and statutory provisions in that behalf, proceeded to hold in the said decision that the modification or changes as done by the Commissioner were impermissible with regard to the essential changes in the plan while exercising powers conferred under the Regulation No. 247-A. It was laid down and observed that the discretionary power conferred vide Regulation No. 247-A was not such as to modify the plan in its essential contents or to permit framing of a new plan in the guise of modification. In asmuchas, this is what the Division Bench observed in Para 20:
"The power conferred by Regulation 247-A is neither blanket one nor absolute. The Municipal Commissioner is authorised to modify the requirements prescribed by the regulation with a view to remove grave hardship. Therefore, power could be exercised only with a view to remove hardship, and not for any other purpose. The power conferred by Regulation 247-A is circumscribed by the words used in the regulation themselves. From the bars reading of this it is quite obvious that the modification of the whole development plan is neither permissible nor it is contemplated by the said regulations. Modification also is not permitted to make any essential change in the plan by exercising the power conferred under Regulation 247-A and an alteration in the policy of the plan is also not contemplated. Power conferred is not such so as to modify the plan in its essential contents or to permit framing of a new plan in the guise of modification."
57. The Bench, therefore, it will be noticed held that the discretion has to be exercised under Regulation No. 247-A with permissible limits and in a individual case for the purpose of removing grave hardship in a given case and the same cannot to used in all the cases in general manner as done by the Commissioner. It will, thus, be noticed that the concession granted and thereby modification made by relaxation was in all the general cases. The deletion of the prescription of 5 feet set back from the regular street was of a general nature. In fact that was the essential change effected in the town planning scheme and the development plan itself. Therefore, in the said decision, it was rightly held that the Commissioner while exercising the discretion under Regulation No. 247-A cannot do so as to materially effect or change the development plan and the scheme itself. The Commissioner granted a general concession in all the cases by taking recourse to the provisions of Regulation No. 247-A. Whereas the case in hand in distinguishable and quite different. In asmuchas, it is in the individual case that the Commissioner has exercised his discretion.
58. The Bench is above decision discussed so also considered the scope of discretion conferred vide Regulation No. 247-A upon the Commissioner. While approving the conferment of such discretion being necessary in the circumstances, the Bench also observed that in the given deserving case the Commissioner can certainly exercise the power of discretion conferred under Regulation No. 247-A. In asmuchas, this is what in the said paragraph 20 the Bench has observed :
"This discretion or right conferred upon the Municipal Commissioner is coupled with a duty to general public. This power can also be used for furthering the interests of the general public and in a given case removal of grave hardship could also be in the interests of the general public."
59. The above observation would show that the Division Bench has held and observed that in a given appropriate case the Commissioner can exercise the discretion conferred upon him. As far as the case in hand is concerned, the Commissioner has granted relaxation or concession in a case of plot holders as a individual case and it was not the general concession or the relaxation granted as was done in the case before the Division Bench referred to above. This being the position, the submission advanced by and on behalf of the plaintiffs that the said Act of the Commissioner would amount to the destruction of the town planning scheme and development plan cannot be accepted.
60. Now, the next fundamental question is whether the relaxation granted by the Commissioner of the 1st respondent---Municipal Corporation, Pune is such as would be considered as being a destruction to the basic structure of the town planning scheme and the development plan as such and would amount to modifying the substantial development plan and the scheme itself. It is noticed that the plot of the plot holders was falling short by 390 sq. ft. only. The same had 30 feet frontage road as against 40 feet. The Commissioner of the 1st respondent had waived the deficiency of 390 sq.ft. of area and while directing the provision of set back of 40 feet tolerated 30 feet frontage. These are the only concessions granted to the plot holders. As stated earlier, by the time when permission was granted the amended proposal eventually introduced in Regulation No. 6-d of the Scheme Regulations was very much before the Commissioner which permitted the user of the land for Mangal Karyalaya in the said scheme. It is also held earlier that the Commissioner of the 1st respondent was justified in taking into consideration the said proposal. Therefore, only the concessions that were granted to the plot holders related to the deficiency of area of 390 sq. ft. and the width of the frontage of front road. The grant of such concession is sought to be justified by recourse to the Regulation No. 247-A.
61. In this connection, it needs to be stated that the Commissioner of the 1st respondent while granting permission also stipulated that no Loud Speaker will be allowed to be played at any time in the Mangal Karyalaya. It is also necessary to note that the main public road was at the front of the said plot and by its another side there was a public street abutting the plot itself. The Executive Engineer in his note which was placed before the Municipal Commissioner has noted the said fact. What is more the issue was specifically referred to the Arbitrator appointed under the M.R.T.P. Act who has also given his okay for the sanction of Mangal Karyalaya. The Commissioner has taken into consideration all these facts while granting the permission and approving the proposal of the plot holders for Mangal Karyalaya. As noted earlier, the proposal remained pending for consideration before the Municipal Commissioner for nearly two years and as noted by the 1st Appellate Court it went through various stages and was dealt with and considered by the concerned officers from time to time. It would show that the Commissioner has not proceeded to grant the permission and cleared the proposal hastily. He has considered the matter and taken into consideration the various factors attendant thereto. Furthermore the kinds of relaxations by any reckoning cannot be said to be of such a kind as would destroy the basic structure of the development plan or the town planning scheme as such. The concession granted is in a individual case. This is also a material fact which would required to be taken note of.
62. Regulation No. 247-A has been provided with a view to remove grave hardship. Hardship is a relative term. It may not be necessarily taken to apply only to the plot holders as the main object of the M.R.T.P. Act gives its thrive for the public interest and public good. It seeks to provide the plan, development to the citizens at large and for providing the essential basic amenities for the benefit and enjoyment of the public at large. Usefulness of the Mangal Karyalaya to the public at large cannot be in dispute. As a matter of fact and as has been held by the trial Court itself even while decreeing the suit in favour of the plaintiffs that the facility of Mangal Karyalaya was not available in the area or in the locality. In Para 35 of its Judgment, the trial Court has recorded:
"Lastly, it may be stated that it appears from the record that the locality beyond Deccan Gymkhana upto Hingane is not having the convenience of any Mangal Karyalaya. As such the user of Mangal Karyalaya constructed by Defendants Nos. 2 to 11 might be proving useful and convenient to the residents of the said locality."
63. These observations of the trial Court are notwithstanding deciding in favour of the plaintiffs and ordering the demolition of Mangal Karyalaya from the said plan. It will be therefore, legitimately appropriate and proper that the Commissioner of the 1st respondent also considered the hardship of the general public as such while granting the permission for setting up of a Mangal Karyalaya. In fact this is what the Regulation No. 247-A provides for.
64. The conspectus of the discussion and the facts and circumstances as aforesaid lead to the conclusion that,-
(1) That the relaxation granted by the Commissioner of the 1st respondent, Municipal Corporation, Pune to the plot holders for the permission to construct Mangal Karyalaya does not amount to any essential or material changes so as to effect or substantially modify the development plan or Town Planning Scheme itself.
(2) Under Regulation No. 247-A the Commissioner was reasonably empowered to grant such concession with a view to remove hardship.
(3) The Commissioner has exercised the discretion in a individual case and not in general case.
(4) Furthermore the concession and relaxation granted in those aspects which are not such as to tantamount to the variation or modification of the development plan or Town Planning Scheme itself.
(5) The permission applied for and its grant is under and in accordance with the provisions of section 46 of M.R.T.P. Act as also various Rules and Regulations referred to hereinabove. The bar of suit under section 149 of the said Act would be applicable in this case.
65. The Commissioner has considered all the facts and given due regard to the attendant circumstances as was required under section 46 of M.R.T.P. Act of 1966.
66. This being the position, the decision taken by the Commissioner for grant of permission to the plot holders was in accordance with and under the provisions of the M.R.T.P. Act and Rules and Regulations made thereunder. Such action is protected by section 147 of the M.R.T.P. Act.
67. This being the position, the objection raised by and on behalf of the respondents in particular the Municipal Corporation, Pune with regard to the maintainability of the suit has to be upheld and if so done the suit of the plaintiffs will have to be dismissed and consequently the appeal herein.
67-A There is one more aspect which will need consideration. It is undisputed position that Mangal Karyalaya has already been constructed and has started functioning as such since long back. The plaintiffs did not press for interim reliefs during pendency of their suit in the trial Court and instead allowed the construction thereof to proceed and complete. It is noticed from the judgments of the lower Courts, that during the pendency of the suit, although the Mangal Karyalaya had started functioning and it was functioning when parties went for trial, the plaintiffs have given up the ground of nuisance as was alleged in the plaint. This is notwithstanding the fact that Mangal Karyalaya was already in function. If indeed there had to be any kind of nuisance because of the Mangal Karyalaya, the plaintiffs would not have given up the ground of nuisance. This conduct of them would also speak a volume needing no more comments. This is mentioned because the injunction is sought restraining the plot holders from using the Mangal Karyalaya, as such.
68. Furthermore, the learned Counsel appearing for and on behalf of the plaintiffs was also very fair and candid to state that the plaintiffs did not wish or it was not their intention that the building of the Mangal Karyalaya constructed should be demolished. Their objection is for the building for the Mangal Karyalaya. The Court has noted the said submission made but since the Court has held that the permission granted by the 1st respondent for the construction of Mangal Karyalaya being legal and valid, there is no question of putting any fetters on the enjoyment and or user of the property by the plot holders as Mangal Karyalaya. More so, when it is catering the needs of the public at large.
69. There are averments made with regard to the mala-fide. There are no sufficient date made available. But across, the attempt was made that it was the case of legal mala-fide. Since the Court has considered the legal position as obtained, on the various points raised and agitated, one fails to understand how could it be a case of legal mala-fide as such. As pointed out earlier and as has been noted by the 1st Appellate Court in detail, the proposal of the plot holders has gone through various states and dealt with and considered by different Officers. As many as two Municipal Commissioners have processed the same. That being the position, I do not find any justification for the plaintiffs to allege mala-fide or even for that matter collusion against the Municipal Commissioner.
70. Therefore, taking into consideration all the facts and circumstances as obtained in the matter herein and the findings rendered hereinabove, I do not find any merits in the appeal. The 1st Appellate Court has dismissed the appeal although reasoning assigned were different to certain extent as have be clarified in the Judgment hereinabove. In asmuchas, the bar of suit under section 149 of the M.R.T.P. Act was not argued over before the trial Court or before the 1st Appellate Court. But same being a point of law, this Court has allowed the parties to address it on the said point. The plaintiffs have failed in the said legal point and as the same goes to the root of the matter the suit of the plaintiffs consequently has to be dismissed.
71. Hence the following order. The appeal is dismissed and the order of the 1st Appellate Court is confirmed. However, there shall not be order as to the costs.