KRIPA MANGAL KARYALAYA & ORS.versusNAGPUR MUNICIPAL CORPORATION & ORS.

                        [2015) 1 S.C.R. 1082


A          SAi KRIPA MANGAL KARYALAYA & ORS.
                               v.
          NAGPUR MUNICIPAL CORPORATION & ORS.
                (Civil Appeal No. 5577 of 2004)
                        FEBRUARY 12, 2015
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                  PRAFULLA C. PANT, JJ.]

         Public Interest Litigation - Maintainability of - PIL before
C   High Court seeking direction to Nagpur Municipal corporation
    (NMC) and Nagpur Improvement Trust (NIT) to remove
    structures on the land owned by respondent-Trust leased out
    to the appellant being contrary to building regulation and the
    development plan under Town Planning Act - High Court
D   allowing the petition directed demolition - Held: The PIL was
    not maintainable as it was not bonafide, but filed on account
    of personal disputes between the parties - There was also
    long delay of eight years in filing the same - NMC was
    empowered to sanction the building plan - High Court also
E   not justified in deciding the disputed questions of facts without
    looking into the original coloured plan - The true copy of the
    plan cannot be relied upon to hold any construction illegal -
    Maharashtra Regional and Town Planning Act, 1966 -
    Constitution of India, 1950 - Art. 226 - Nagpur Improvement
F   Trust Act, 1936 - Nagpur Corporation Act, 1948.

         Allowing the appeal, the Court

        HELD: 1. There being a long delay of eight years in
  filing the writ petition and in absence of challenge to the
G plan sanctioned by Nagpur Municipal Corporation, the
  High Court was not justified in entertaining the so called
  Public Interest Litigation filed by persons who had
  personal dispute with respondent No.4. The writ petition

H                                 1082
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1083
                 CORPORATION

filed by respondent nos.5 and 6 was not bona fide, but it     A
was filed only on account of personal disputes between
the parties i.e. inter Se between the members of
respondent-Trust indirectly affecting the appellants-
tenants. Respondent-Trust in its reply before the High
Court supported the appellants but before this Court          B
supported the case of respondent Nos. 5 and 6.[Paras 12
and 15) [1094-G-H; 1093-F·G)

    2. Prior to 1967 Nagpur Municipal Corporation (NMC)
was the authority to exercise the power of sanctioning        C
the plan and since 27th February, 2002 the NMC was
again empowered to sanction the plan. During the period
from 1967 till 2002, though Nagpur Improvement Trust
was the Planning Authority for the city of Nagpur, it
abdicated its power, delegated it in favour of NMC and
did not sanction any building plan. [Para 13] [1094-B-C]      D

     3. True copies of Notification dated 3rd June, 1976
and Part Development Plan of Nagpur City have been
produced wherein respondent-Trust has been shown
within the area of public institutions and offices. In        E
absence of original coloured plan, the true copy of the
plan cannot be relied upon to hold any construction
illegal in view of the fact that the N.M.C which sanctioned
building plan supposed to have gone through the original
plan. In absence of the sanctioned plan, the High Court       F
was not justified in deciding the disputed question of fact
as to whether the building was constructed in
accordance with Town Planning Scheme. The High Court
ought to have looked into the sanctioned plan to find out
whether it was for office (Karyalaya) or for residential or   G
for commercial purpose for coming to a definite
conclusion. [Paras 14 and 15] [1094-D-G)

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5577 of 2004.
                                                              H
    1084     SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         From the Judgment and Order dated 30.04.2002 of the
    High Court of Judicature of Bombay, Nagpur Bench in Writ
    Petition No. 1485 of 1984.

       Prasenjit Deswani, Amol Chitale, Satyajit Saha, Prashant
B   Kumar for the Appellants.

      Arun Pednekar, Aniruddha P. Mayee, Charudatta
  Mahindrakar, A. Salvin Raja, Anagha S. Desai, Nitin Lonkar,
  Asha Gopalan Nair, Manish Pitale, Wasi haider, Chander
  Shekhar Ashri, Rahul Jain, Shivaji M. Jadhav for the
C Respondents.

        The Judgment of the Court was delivered by

        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This
  appeal has {>een preferred by the appellants against the
D judgment and order dated 30th April, 2002 passed by the High
  Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ
  Petition No.1485of1984. By the impugned judgment, the High
  Court allowed the writ petition filed by respondent nos.5 and 6
  and held as follows:
E
        (i) The building permits granted by Nagpur Municipal
        Corporation to the land belonging to respondent No.4-
        Gorakshan Sabha, a Public Trust are unauthorized and
        illegal and hence buildings put up pursuant to such building
F       permits   are liable to be demolished

        (ii) The parties may make fresh applications seeking
        building permits within one month from the date of
        judgment in accordance with revised sanctioned
        development plan of 2000-2001 and the Planning Authority
G       shall dispose of such applications within four months.

        (iii) The Planning Authority shall demolish the said
        structures if they were found not in conformity with the
        revised sanctioned plan of 2000-2001.
H
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1085
CORPORATl9N [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    2. The factual matrix of the case is as follows:               A

     2.1. One Shri Dhondiba Diwadkar gifted land bearing
Survey No. 471, admeasuring 18.25 acres situated at Mouza
Lendhra, Tahsil, District Nagpur to respondent No. 4 -
Gorakshan Sabha, a Public Trust. The said land was on the          B
outskirts of Town of Nagpur and with the passage of time is now
within the Municipal limits of City of Nagpur.

    2.2. In the year 1936, the Nagpur Improvement Trust Act
(For short, '1936' Act) was enacted with a view to make            C
provisions for the improvement and expansion of the then town
of Nagpur. Under the 1936 Act a Trust namely Nagpur
Improvement Trust (hereinafter referred to as 'N.l.T' for short)
was constituted and N.l.T was empowered to frame various
improvement schemes specified u/s 27 of the 1936 Act for any
                                                                   0
area and on such scheme being sanctioned by the State
Government, the N.l.T. was to implement the scheme, if
necessary by acquiring the land as contemplated under the
1936 Act.
     2.3. With the gradual development of "Town of Nagpur" into    E
the "City of Nagpur", the city of Nagpur Corporation Act, 1948
(for short, 'the Corporation Act') was enacted with a view to
make special legislative provisions to consolidate and amend
the law relating to the Municipal affairs of the City of Nagpur.
Section 2 of the Corporation Act specifically provides that the    F
N.l.T constituted under the 1936 Act shall in the city of Nagpur
continue to exercise the powers and perform duties conferred
and imposed under the 1936 Act. Section 3(5) of the
Corporation Act provides that all the provisions of 1936 Act
shall apply to the city of Nagpur. Section 5(10) of the            G
Corporation Act defines "City of Nagpur" means the larger
urban area specified in the notification issued under Clause (2)
of Article 243(0) of the Constitution of India. With the
enactment of the Corporation Act, certain amendments to the
                                                                   H
    1086      SUPREME COURT REPORTS                  [2015) 1 S.C.R.


A 1936 Act were carried out. As a result of amendment to section
  1(2) of the Trust Act, the jurisdiction of N.l.T. was extended to
  the area comprised within the limits of the city and to such other
  area outside these limits as the State Government may declare
  from time to time by notification. Section 2(m) of 1936 Act
B which was amended in 1952 provides that all references to
  anything required to be done under the 1936 Act shall include
  anything required to be done under the Corporation Act which
  the N.l.T by virtue of 1936 Act has power to enforce. Thus, both
  the Nagpur Municipal Corporation ('N.M.C' for short) constituted
C under the Corporation Act and the N.l.T constituted under the
  1936 Act were entrusted with the responsibility of the orderly
  development of the city of Nagpur.

          2.4. In the year 1966, the State Government enacted the
o   Maharashtra Regional and Town Planning Act, 1966 ('T.P. Act'
    for short) inter alia, with a view to make provisions for planning
    the development and use of lands in the regions established
    for that purpose and for the constitution of Regional Planning
    Boards thereof for the creation of new towns by the
E   Development Authorities. Section 2( 15) of the T. P. Act defines
    the local authority, to include inter alia, the N.M.C. under the
    Corporation Act, 1948 and the N.l.T. constituted under the 1936
    Act, which, on being permitted by the State were entitled to
    exercise the powers of a Planning Authority under the T.P. Act
F   for any area under its jurisdiction. Section 2(19) of the T.P. Act
    defines 'Planning Authority', as local authority which includes
    such other authorities as prescribed under the Act. Under the
    T .P. Act, it is obligatory on the part of the Planning Authority to
    survey a region and prepare an existing land-use map and
G   prepare a draft development plan for the area within its
    jurisdiction in accordance with a regional plan or in such other
    manner as may be prescribed. Section 22 of the T.P. Act
    provides that a development plan shall generally indicate the
    manner in which the use of the land in the area of a Planning
H   Authority shall be regulated, and also indicate the manner in
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1087
CORPORATION [SUDHANSU JYOTI MUKHOPADHAYA, J.)

which the development of a plan shall be carried out. It is further    A
provided in Section 22 of the T.P. Act that the development plan
in particular shall provide for proposals for allocating the use
of land for the purposes, such as residential, industrial,
commercial, agricultural, recreational and proposals for
designation of land for public purpose, such as schools,               B
colleges and other educational institutions, medical and public
health institutions, markets, social welfare and cultural
institutions, theatres and places for public entertainment or
public assembly, museums, art galleries, religious building and
Government and other public buildings as may from time to              C
time be approved by the State Government. The T.P. Act
provides for modification of the draft plan on receiving
objections and suggestions from the general public. Section 31
of the T.P. Act provides for sanction to the draft development
plan by the State Government and on the final development              D
 plan coming into force it is binding on the Planning Authority.
Section 42 of the T.P. Act provides that on the coming into
operation of any plan or plans referred to Chapter Ill of T. P. Act,
 it shall be the duty of every Planning Authority to take such steps
as may be necessary to carry out the provisions of such plan           E
 or plans. Section 43 of the T.P. Act provides restriction on the
development of a land after the date on which the declaration
 of intention to prepare a development plan for area is published
 in the Official Gazette. Thus, once declaration of intention to
 prepare draft development for any area or a notification              F
 specifying any undeveloped area as a notified area, or any area
 designated as a site for a new town is published in the Official
 Gazette, no person shall change the use of the land or carry
 out any development of the land without the permission in
writing of the Planning Authority except as permitted under            G
 proviso appended thereto.

   2.5. By a notification dated 6th October, 1967 the State
Government permitted N.l.T. to exercise the powers of a
                                                                       H
    1088      SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A   Planning Authority under section 2(15) of the T.P. Act for the
    entire area under its jurisdiction.
       2.6. In aceordance with the aforesaid provisions, the N.l.T.
  on 12th December, 1972 published draft development plan of
  the city of Nagpur and the same was published in the
8
  Government Gazette on 28th December, 1972. After
  considering the objections and suggestions, modifications to
  the draft development plan were made on 20th October, 1973
  and the same were published on 17th January, 1974.
C Subsequently the draft development plans as further modified
  by the N.l.T. were forwarded to the State Government for
  sanction under section 30(1) of the T.P. Act on 23rd October,
  1974. The State Government extended the period for
  sanctioning such plan and ultimately with minor modification the
D draft development plan was approved by the State Government.
  Thus, the final development plan for the city of Nagpur, as
  sanctioned by the State Government, came into force on 3rd
  June, 1976.
         3. It appears that final development plan came into effect
E   from 3rd June, 1976. Both N.M.C and N.1.T were granting
    development permission in their respective areas and later,
    Government noticed the problems created due to the existence
    of two sets of regulations in the Municipal Corporation Area.
    For the said reason, Deputy Secretary to the Government,
F   Urban Development Department Mantralaya, Bombay, vide
    letter dated 1st January, 1993 intimated the Municipal
    Commissioner, N.M.C, Nagpur about Government decision that
    draft byelaws published by the N.M.C u/s 169 of the T.P. Act
    read with Section 115 and other sections of the Corporation
G   Act, 1948 will not be operated and the N.M.C like N.l.T will follow
    the draft Development Control Rules and Building Byelaws
    prepared by the N.l.T as submitted to Government on 12th
    October, 1990 which are under scrutiny of Government until
    further orders. The aforesaid letter being relevant reads as
H   follows:-
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1089
CORPORATION [SUDHANSU JYOTI MUKHOPADHAYA, J.)
   "Confidential         No.TPS 2490/1504/CR-101/UD-9              A
                         Urban Development Department
                         Mantralaya, Bombay-400 032.
                         Dated: 1st January, 1993.
   To,
     The Municipal Commissioner,                                   B
     Nagpur Municipal Corporation,
     Nagpur.
      Sub:    Regulation of Building Control Activity and
              implementation of Development Control Rules
              and Building Bye-Laws in Nagpur City.                C

    Sir,

         The Nagpur Improvement Trust (N.l.T) is a planning
    Authority for the city of Nagpur in terms of the Maharashtra   D
    Regional & Town Planning Act, 1956. Accordingly if
    prepared the development plan alongwith building
    regulations and Development Control Rules were
    approved by Government vide Notification No.:TPS 2476/
    478/UD-5, dated the 3rd July, 1976.
                                                                   E
         With a view to standing the l.C. rules and building
    Bye-laws, Government had directed all the Municipal
    Corporations i.e. the Planning Authorities (Nagpur
    Improvement Trust in this case) to undertake modification
    under Section 37 of the Act and follow standardized            F
    Development Control Rules and Building byelaws and has
    forwarded the proposal for government approval on 12th
    October, 1990.

    2. The Nagpur Municipal Corporation (N.M.C) has framed
    the building Byelaws under City of Nagpur Corporation Act,     G
    1948 which were approved by the Government vide
    notification No.N.M.C 5365/33770, dated the 24th June,
    1965. Subsequently, the Nagpur Municipal Corporation in
    exercise of the powers conferred under section 159 of the
    Maharashtra Regional Town Planning Act, 1966 read with         H
    1090          SUPREME COURT REPORTS              [2015] 1 S.C.R.


A      Section 415 and other relevant sections of the City of
       Nagpur Corporation Act, 1948 published draft revised
       byelaws. Those byelaws have been sent to Government
       for approval vide letter No.GAD/18/G, dated 24th February,
       1987 and they are yet to be approved. Both the Nagpur
B      Municipal Corporation and Nagpur Improvement Trust are
       granting Development permission in their respective
       areas.

              Thus there has been no uniformity in the matter of
        the (not eligible) There have been two sets of regulations
c     . operated in the Municipal Corporation area and has been
        admittedly creating certain serious problems.

       3. Government has examined the matter and after careful
       examination is pleased to issue directions under section
D      154 of the Maharashtra Regional Town Planning Act, 1956
       as follows:

              "Pending the approval of Government for the
       proposal of Development Control Rules and Building
       Byelaws submitted by the Nagpur Improvement Trust vide
E
       its letter No.D/630, dated 12th October, 1990.

           (i)     The draft Byelaws published by the Nagpur
                   Municipal Corporation under section 169 of the
                   Maharashtra Regional Town Planning Act, 1956
F                  read with Section 115 and other sections of the City
                   of Nagpur Corporation Act 1948 will not be
                   operated ..

           (ii)    The Nagpur Municipal Corporation like Nagpur
G                  Improvement Trust should follow the provisions in
                   the draft Development Control Rules and Building
                   Byelaws prepared by the Nagpur Improvement
                   Trust as submitted to Government on 12th October,
                   1990 which are under scrutiny of Government until
                   further orders.
H
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1091
CORPORATION [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    4. The action taken may please be intimated to                 A
government.
                                               Yours faithfully,
                                      (C .S. Pentabalekungri)
                            Deputy Secretary to Government"
                                                                   B
    4.    Between 1973 and 1983 lands were leased to the
    appellants by respondent no.4 and building plans were
    sanctioned by the N.M.C. The N.M.C was empowered to
    issue NOC during the said period as .evident from letter
    dated 15th September, 1981 written by Circle Engineer
    (P1), N.l.T to Shri Padmakar Joshi and brothers, Sitabuldi,    C
    Nagpur as quoted below:

    "OFFICE OF THE NAGPUR IMPROVEMENT TRUST

    No.Sch/NOC/2017              Nagpur, dated the 15.9.1981.      D

    To

    Shri Padmakar Joshi & Bros.

    Sitabuldi, Nagpur.                                             E
    Subject-No Objection Certificate for Petrol Pump.

    Reference:-Your application dated 29.6.1981.

         With reference to above, I have to inform that the        F
    Nagpur Municipal Corporation is empowered to issue no
    objection certificate in conformity with proposals of
    Development Plan of Nagpur. You may, therefore,
    approach Nagpur Municipal Corporation, Nagpur in this
    matter.
                                                                   G
                                                       Sd/-
                                       Circle Engineer (P1)
                                  Nagpur Improvement Trust."
   From the aforesaid letter, it is clear that inspite of draft
Development Plan which was published on 25th December,             H
    1092      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   1972 followed by final Draft Plan on 3rd June, 1976, the N.l.T
    abdicated its authority and delegated it in favour of N.M.C by
    stating that N.M.C is empowered to issue NOC in conformity
    with proposals of Development Plan of Nagpur.

B      5. Respondent nos.5 and 6 preferred a Public Interest
  Litigation under Article 226 of the Constitution of India before
  the Bombay High Court Bench at Nagpur inter alia, seeking a
  direction to N.M.C and N.l.T to remove the structures standing
  on the lands owned by respondent no.4-Trust on the ground that
  the same are contrary to the building regulations and the
C development plan sanctioned by the State Government under
  the T.P. Act. In the said writ petition, the impugned judgment
  was passed on 30th April, 2002 as noticed in the opening
  paragraph.

D       6. Learrred counsel for the appellants while referring to the
  facts, as narrated above, submitted that the writ petition was
  filed by respondent no.5 after inordinate delay to vent out their
  personal vendetta. The said writ petition cannot be termed to
  be Public Interest Litigation as respondent nos.5 and 6 vented
E out their private dispute.

        7. Learned counsel for the appellants further submitted that
  the said writ petition was primarily filed by respondent no.5
  claiming to be a member of respondent no.4- Trust and
  respondent no.6 a member of the locality alleging
F mismanagement by the said Trust in leasing lands to the
  appellants. Apart from the aforesaid fact the respondent nos.5
  and 6 did not disclose the nature of public interest involved. A
  personal grudge of respondent no.5 is clear as he was claiming
  to be a member of the Trust which was not accepted by. the
G Trust. It was further submitted that the writ petitioners having not
  approached the Court with clean hands and it being a private
  dispute between respondent no.5 and Trust the said writ
  petition was not maintainable. It is further contended that in
  absence of challenge to the sanctioned layout the High Court
H ought not to have declared them unauthorized and illegal.
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1093
CORPORATION [SUDHANSU JYOTI MUKHOPADHAYA, J.]

       8. Learned counsel for the parties relied upon Section 2      A
  (15) (c) (ii) (iii), Section 2(19), 20 and 154 of the T.P. Act.
  Reliance was also placed on final Development Plan dated 3rd
  June, 1976 sanctioned by the State Government. A photocopy
  of True copy of Resolution dated 3rd June, 1976 enclosing
. copy of the notification issued under the letter head of N.l.T     B
  alongwith part Development Plan of Nagpur City was also
  produced separately for perusal.

      9. Respondent nos.5 and 6 have taken similar pleas as
 were taken before the High Court. Counsel for respondent no.4       C
 also supported the case of respondent nos.5 and 6.

      10.. We have heard the rival contentions raised by the
 parties and perused the record.

      11. It is not in dispute that the respondent no.4-Trust has    o
 leased the property in favour of the appellants. Respondent no.5
 was claiming to be a member of the Trust and Respondent no.6
 claims to be a member of the locality and as noticed above
 they filed the writ petition before the High Court alleging
 mismanagement by the Trust in leasing lands to the appellants.      E
 But what we find is that the respondent no.4-Trust is now
 supporting respondent nos.5 and 6.

      12. The aforesaid fact clearly shows that writ petition filed
 by respondent nos.5 and 6 was not bona fide but it was filed
 only on account of personal disputes between the parties i.e. · F
 inter se between the members of the respondent no.4-Trust
 indirectly affecting the appellants-tenants. Respondent no.4-
 Trust in its reply before the High Court supported the appellants
 but before this Court their learned counsel supported the-case
 of respondent nos.5 and 6.                                         G

      13. There is no dispute that no such notification was issued
 by the State Government empowering the N.M.C to exercise
 the power of Planning Authority. By letter dated 1st January,
 1993, the State Government asked the N.M.C to follow the draft      H
    1094     SUPREME COURT REPORTS                [2015) 1 S.C.R.


A development Rules framed by the N.l.T there being conflict
  between two draft Rules one drafted by the N.M.C and another
  by N.l.T. The State Government on 27th February, 2002 has
  rescinded/withdrawn the notification dated 6th October, 1967
  and permitted N.M.C to exercise the powers of a Planning
B Authority in the area under its jurisdiction except the areas in
  which the N.l.T has improvement schemes as more particularly
  set out in the said notification. Thus, prior to 1967 N.M.C was
  the authority to exercise the same power sanctioning the plan
  and since 27th February, 2002 the N.M.C was again
c empowered to sanction the plan. During the period from 1967
  till 2002, though N.l.T was the Planning Authority for the city of
  Nagpur, it abdicated its power, delegated it in favour of N.M.C
  and did not sanction any building plan which is also clear from
  letter dated 15th September, 1981 issued by N.l.T to one Shri
D Padmakar Joshi & Bros., Sitabuldi, Nagpur as quoted above.

        14. True copies of notification dated 3rd June, 1976 and
  Part Development Plan of Nagpur City have been produced
  wherein respondent no.4-Gorakshan Sabha has been shown
  within the area of public institutions and offices. In absence of
E original coloured plan the true copy of the plan cannot be relied
  upon to hold any construction illegal in view of the fact that the
  N.M.C which sanctioned building plan supposed to have gone
  through the original plan.

F      15. In absence of the sanctioned plan, we are of the view
  that the High Court was not justified in deciding the disputed
  question of fact as to whether the building was constructed in
  accordance with Town Planning Scheme. The High Court ought
  to have looked into the sanctioned plan to find out whether it
G was for office (Karyalaya) or for residential or for commercial
  purpose for coming to a definite conclusion. Further, there being
  a long delay of eight years in filing the writ petition and in
  absence of challenge to the plan sanctioned by N.M.C, the High
  Court was not justified in entertaining the so called Public
H Interest Litigation filed by persons who had personal dispute
  with respondent no.4.
SAi KRIPA MANGAL KARYALAYA v. NAGPUR MUNICIPAL 1095
CORPORATION [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    16. For the reasons aforesaid, we set aside the impugned      A
judgment and order dated 30th April, 2002 passed by the High
Court of judicature at Bombay, Nagpur Bench in Writ Petition
No.1485 of 1984 and dismiss the Writ Petition preferred by
respondent nos.5 and 6. The appeal is allowed but there shall
be no orders as to cost.                                          B

Kalpana K Tripathy                              Appeal allowed,