NAGPUR IMPROVEMENT TRUST & ORS.versusM/S BOMBAYWALA & ORS.

                         [2019] 1 S.C.R. 1001                              1001


           NAGPUR IMPROVEMENT TRUST & ORS.                                 A
                                   v.
                   M/S BOMBAYWALA & ORS.
                    (Civil Appeal No. 937 of 2019)
                         JANUARY 22, 2019                                  B
  [A. K. SIKRI, ASHOK BHUSHAN AND M. R. SHAH, JJ.]
      Maharashtra Regional Town Planning Act, 1966 – Purpose
of its enactment – Held: To make provisions for planning the
development and the use of land in regions established for their
                                                                           C
purpose and to ensuring that Town Planning Schemes are made in
a proper manner and their execution is made effective.
       Maharashtra Regional Town Planning Act, 1966 – s.59 –
Improvement scheme – Abhyankar Road Widening and Buty Mahal
Street Scheme was framed under Nagpur Improvement Trust Act in
the year 1960 for creating improved means of communications and            D
facilities for traffic – The scheme provided for 15 metre internal
road – However, the Development Plans made under the MRTP Act
which came into effect on 11.1.1967 did not provide for 15 metre
internal road – NIT decided to implement the scheme – State
Government allotted reconstituted composite plot to the land owners        E
– Pursuant thereto, the process of widening of Abhyankar Road
was initiated and notices were issued for demolition of shops – Writ
petitions filed for quashing of the notices – High Court quashed
the notices of demolition – High Court also observed that as in the
Scheme sanctioned under s.45 of the NIT Act, 15 metre internal
road is provided, unless the same is varied and/or modified under          F
s.46 of the NIT Act by the Planning Authority, the same shall have
to be implemented – On appeal, held: The Development Plan made
under the MRTP Act would take precedence over any Scheme to
the contrary – s.59 of the MRTP Act provides for preparation of the
Scheme under the MRTP Act, which specifically provides that the            G
Planning Authority may prepare one or more Town Planning Scheme
for the area within its jurisdiction or any part thereof for the purpose
of implementing the proposals in the Final Development Plan –
Conjoint reading of ss.39, 43, 46 and s.59 of the MRTP Act showed
that the Development Plans prepared and sanctioned under the
                                                                           H
                                 1001
1002            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


 A     provisions of the MRTP Act shall prevail – Therefore, there cannot
       be any development and/or construction permitted contrary to the
       Development Plan prepared and sanctioned under the provisions
       of the MRTP Act, though the Scheme prepared and sanctioned
       under s.45 of the NIT Act may permit such development and/or
       construction – In case of a conflict between the MRTP Act and the
 B
       NIT Act, the MRTP Act will prevail – Nagpur Improvement Trust
       Act, 1936 – s.45.
             Maharashtra Regional Town Planning Act, 1966 – s.39 –
       Modification of scheme deleting 15 metres wide road – Permissibility
       – Held: s.39 of the MRTP Act mandates the Planning Authority to
 C     vary the Scheme in line with the Development Plan sanctioned under
       the MRTP Act – In the transferred case in question, when the DP
       was sanctioned, without any proposal for the 15 metres internal
       road, first in the year 1976 and thereafter in the years 1989 and
       2001, the same was after following the due procedure and the same
 D     was approved and sanctioned by the State Government – Thereafter,
       when the Scheme to the extent in conflict with the DP Plan was
       modified as mandated under s.39 of the MRTP Act, the same cannot
       be said to be illegal – Therefore, when s.39 MRTP Act and the
       provisions of the NIT Act are read harmoniously, the impugned
       Notification modifying the Scheme and/or Board Resolution
 E     modifying the Scheme deleting 15 metres wide road, which is in line
       with the Development Plan sanctioned under the MRTP Act, cannot
       be said to be illegal – Nagpur Improvement Trust Act, 1936 – s.45.
             Disposing of the matters, the Court
             HELD: 1. The Final Development Plan of 1976 did not
 F     contain the 15 metres internal road from the land in question as
       against the 15 metres internal road provided in the final Scheme
       of 1964. Thus the Scheme of 1964 prepared and sanctioned the
       provisions of the NIT Act to the extent of providing 15 metres
       internal road can be said to be not in consonance with the
       Development Plan sanctioned under the provisions of the MRTP
 G
       Act. Section 59 of the MRTP Act provides for preparation of the
       Scheme under the MRTP Act, which specifically provides that
       the Planning Authority may prepare one or more Town Planning
       Scheme for the area within its jurisdiction or any part thereof for
       the purpose of implementing the proposals in the Final
 H     Development Plan. Section 59 of the MRTP Act is relevant as in
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                         1003


the present case, the Scheme which provides 15 metres internal       A
road was prepared and sanctioned under the provisions of the
NIT Act and prior to the enactment of MRTP Act and, therefore,
Section 39 read with Section 92 shall be applicable. A conjoint
reading of Sections 39, 43, 46 and even Section 59 of the MRTP
Act show that the Development Plans prepared and sanctioned
                                                                     B
under the provisions of the MRTP Act shall prevail. Therefore,
there cannot be any development and/or construction permitted
contrary to the Development Plan prepared and sanctioned under
the provisions of the MRTP Act, though the Scheme prepared
and sanctioned under Section 45 of the NIT Act may permit such
development and/or construction. [Paras 11.7-11.9][1022-D-E, G-      C
H; 1022-A-B]
      2. Though there was a provision for internal 15 metres road
in the Scheme under the NIT Act which was sanctioned in the
year 1964, thereafter much development had taken place and
there were changed circumstances. In the Development Plan/           D
revised Development Plan, the existing road came to be widened
from 12 metres to 24 metres and, therefore, when the DP was
prepared and sanctioned under the MRTP Act, there was no
proposal for 15 metres internal wide road. The Development
Plan prepared and sanctioned under the MRTP Act would override
the TP Scheme. There cannot be any development and/or                E
construction permitted contrary to the DP Plan under the MRTP
Act. Under the circumstances, the impugned judgment and order
passed by the High Court cannot be sustained. [Para 11.11][1024-
D-F]
      3. The layout plans are sanctioned and the building permit     F
has been granted absolutely in consonance with the DP sanctioned
under the MRTP Act. The demolition notices were received
pursuant to and in furtherance of the building permit and so as to
enable the original land owners/developers to put up the
construction as per the layout plan sanctioned and the building
                                                                     G
permit granted. Therefore, the High Court has erred in holding
that the action of the NIT was mischief in law. The dispute is
pending since many years. The land owners/developers entered
into compromise with other similarly situated tenants. Now, only
18 tenants are opposing the development, though the land
owners/developers have agreed and are ready and willing to give      H
1004           SUPREME COURT REPORTS                      [2019] 1 S.C.R.


 A     similar treatment to them also which would be given to other
       tenants as agreed before this Court. It appears that for some
       reasons and/or to pressurize the land owners/ developers to give
       them some more benefits, the original writ petitioners are
       opposing the development/construction. Though the original land
       owners/developers are having the building permission and have
 B
       got their plans sanctioned under the provisions of MRTP Act
       and even after incurring huge expenses, they are not in a position
       to put up any further construction because of the pending
       litigation. Therefore, the equity would also be in favour of the
       appellants as land owners/developers. [Paras 11.13, 11.15][1025-
 C     B-C, F-H; 1026-A-B]
              4. TRANSFERRED CASE (C) No.23/2018:
              Section 39 of the MRTP Act mandates the Planning
       Authority to vary the Scheme in line with the Development Plan
       sanctioned under the MRTP Act. When the DP was sanctioned,
 D     without any proposal for the 15 metres internal road, first in the
       year 1976 and thereafter in the years 1989 and 2001, the same
       was after following the due procedure and the same was approved
       and sanctioned by the State Government. Therefore, thereafter,
       when the Scheme to the extent in conflict with the DP Plan has
       been modified as mandated under Section 39 of the MRTP Act,
 E     after considering the objections raised by the original writ
       petitioners, thereafter, the same cannot be said to be illegal.
       Therefore, reading Section 39 of the MRTP Act and the provisions
       of the NIT Act harmoniously, the impugned Notification modifying
       the Scheme and/or Board Resolution modifying the Scheme
 F     deleting 15 metres wide road, which would now be in line with
       the Development Plan sanctioned under the MRTP Act, the same
       cannot be said to be illegal warranting interference of this Court.
       [Para 12.1][1027-C-F]
              Manohar Joshi v. State of Maharashtra & Anr. (2012)
              3 SCC 619; Scheduled Caste and Weaker Section
 G
              Welfare Association v. State of Karnataka (1991) 2 SCC
              604 : [1991] 1 SCR 974 – relied on.
                               Case Law Reference
             (2012) 3 SCC 619                relied on       Para 5
 H           [1991] 1 SCR 974                relied on       Para 8
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                1005


        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 937 of               A
2019.
      From the Judgment and Order dated 15.09.2016 of the High
Court of Judicature at Bombay, Bench at Nagpur in Writ Petition No.
2695 of 2015.
                                                                            B
                                 WITH
        Civil Appeal Nos. 938, 939, 940, 941, 942 and 943-944 of 2019
        and T.C.(C) No. 23 of 2018.
       Saurav Kirpal, V. Giri, Mukul Rohatgi, Sr. Advs., Mehul M. Gupta,    C
Virat Mishra, R. P. Gupta, Satyajit A. Desai, Anshuman Singh, Ms. Anagha
S. Desai, Sameer Rohatgi, Akshay Naik, Akshit Pradhan, Prashant
Pakhiddey, Abhay Kumar, Hrishikesh Chitaley, Shubhranshu Padhi,
Venkita Subramoniam T.R, Rahat Bansal, R. Sharma, Ms. Liz Mathew,
Kush Chaturvedi, Ms. Rukhmini Bobde, Charuhas Dharmadhikari,                D
Anirudh Ananthakrishnan, Kumar Shashank, Nivesh Kumar, Manik Sethi,
Vishal Prasad, Ms. Soumya, Ms. Mayuri Kulkarni, Shriram P. Pingle,
Ms. Anagha S. Desai, Ms. Deepa M. Kulkarni, Nishant Ramakantrao
Katneshwarkar, Sanjay Ghose, Nitin Bhardwaj, Rameshwar Prasad
Goyal, Aman Varma, S. Padhi, Advs. for the appearing parties.
                                                                            E
        The Judgment of the Court was delivered by
       M. R. SHAH, J. Leave granted in all these Special Leave
Petitions.
       1. As common question of law and facts arise in this group of        F
appeals arising out of theimpugned judgment and order dated 15.09.2016
passed by the High Court of Bombay, Bench at Nagpur passed in Writ
Petition No.2695 of 2015, all these appeals are being disposed of by this
common judgment and order. For the sake of convenience, Civil Appeal
arising out of the SLP© No.32089 of 2016 is treated as lead matter and
the facts in the said appeal are narrated.                                  G

      2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 15.09.2016 passed by the Division Bench of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur passed in
W.P.No.2695 of 2015 by which the Division Bench has allowed the said
                                                                            H
1006            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A     Writ Petition preferred by the respondents Nos.1 to 18 herein-original
       petitioners Nos.1 to 18 some of the occupants/tenants of the building in
       question and by which the Division Bench has set aside the notice dated
       24.04.2015 issued by the Nagpur Improvement Trust, the original
       respondents-Nagpur Improvement Trust and others have preferred the
       present appeals.
 B
             3. The facts leading to the present appeals in nutshell are as under.
              4. That the Nagpur Improvement Trust Act 1936 (hereinafter
       referred to as the ‘NIT Act’) was enacted on 25.12.1936. That the
       Nagpur Improvement Trust (hereinafter referred to as the ‘NIT’) vide
 C     Board Resolution dated 29.10.1960 framed an improvement Scheme
       known as “Abhyankar Road Widening and Buty Mahal Street Scheme”
       (hereinafter referred to as “the Scheme”) in respect of 8.7 acres of land
       bearing Khasra No.320 and 315 (part) Mouza Sitabuldi, belonging to the
       Buty Family. That the same Scheme came to be framed under Section
       31 of NIT Act for “creating new or improving the existing means of
 D
       communications and facilities for traffic”. That,inter alia, a new 15
       metres wide road was to be constructed to join Mahatma Gandhi Road
       to Abhyankar Road. That the internal roadof 15 metres provided in the
       said Scheme is the subject matter of issue in the present matters. That,
       the said Scheme came to be published on 29.10.1961 as per Section 39
 E     of the NIT Act. That, the NIT sought approval of the State Government
       of the above Scheme. That the State Government sanctioned the said
       Scheme in exercise of powers under Section 44(1) read with Section
       45(1)(a) of the NIT Act on 23.09.1964. Accordingly, a Notification to
       that effect was also issued under Section 45 of the NIT Act.
 F           4.1 That, thereafter, the Maharashtra Regional Town Planning
       Act, 1966 (hereinafter referred to as the “MRTP Act”) came into effect
       on 11.01.1967. At this stage, it is required to be noted that, as per the
       MRTP Act, any Development Plan made under the said Act had to take
       precedence over any Scheme to the contrary. The same shall be discussed
       hereinbelow.
 G
              4.2 That NIT was appointed as the “Planning Authority” under
       the MRTP Act for Nagpur. That, in the year 1967, the First Final
       Development Plan for the City of Nagpur under Sections 22 and 31 of
       the MRTP Act was prepared and sanctioned. At this stage, it is required
       to be noted that, in the said final Development Plan, the above 15 metres
 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                     1007
                [M. R. SHAH, J.]

road which was provided under the Town Planning Scheme under the                 A
NIT Act was not shown in the Development Plan under the MRTP Act.
       4.3 That the NIT, in Board meeting dated 05.06.1981 and
31.12.1981, decided to implement the Scheme. That, a Special Land
Acquisition Officer came to be appointed by the State Government for
acquisition of the land and the proceedings of the land acquisition came         B
to be initiated.
       4.4 That a newspaper article was published on 21.06.1981 stating
that the NIT has decided to handover the “Buty Mahal Development
Scheme” to the land owners for redevelopment. That, in the year 1983,
a Writ Petition being WP.No.2326 of 1983 was filed by the land owners            C
before the Nagpur Bench of the Bombay High Court challenging the
acquisition. Initially, the High Court granted an interim stay on the
acquisition proceedings.
       4.5 That, on 07.06.1984, the land owners – Shri Yogeshwar Buty
and Smt. Madhuribai Buty approached NIT to allot a reconstituted plot            D
or plots bearing Nos.6, 7 and 8 belonging to them. However, the said
request came to be rejected by the NIT on 17.08.1984.
        4.6 That, on 13.03.1995, one Smt. Indirabai Buty (land owner)
submitted an application for permission to develop the land stating inter
alia, that; (1) Development of the land would be as per the Development          E
Plan of the NIT; (2) All the tenants would be accommodated in the
proposed Scheme; (3) The betterment charges would be paid to the
NIT. That, the Board of NIT in its meeting held on 11.03.1996 passed a
Resolution wherein it was, inter alia, decided ……………..(1) A plot
was allocated in the matter of Shri YadhurajSanghani; (2) Smt. Indirabai
Buty and others land owners to accommodate in their proposed Scheme,             F
the tenants in the area of the reconstituted plot and (3) All the petitions in
respect of the subject plot would have to be withdrawn unconditionally.
On the basis of the said Resolution of the NIT dated 11.03.1996, Writ
Petition No.2326 of 1983 challenging the acquisition was withdrawn by
the land owners.                                                                 G
       4.7 In the meantime, in the year 1989, the First Final Development
Plan which was earlier prepared and sanctioned in the year 1986, came
to be revised. Again, the above 15 metres internal road was not depicted
in the revised DP.
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1008             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A            4.8 It appears that, in the year 1997, NIT addressed letters to the
       Urban Development Department requesting the latter to obtain permission
       from the Government to relax Rule 5(2) of the NIT (Land Disposal)
       Rules, 1983 (hereinafter referred to as the “1983 Rules”) under Rule 26
       of the 1983 Rules, to allocate the reconstituted plot in the present Scheme.
       That the State Government vide order dated 07.10.1997 issued under
 B
       Rule 26 of the 1983 Rules relaxed Rule 5(2) and allotted the reconstituted
       plot in Survey Nos.3117, 3119, 3123, 3127, 3120, 3122, 3124 and 3125 in
       Khasra No.320 Mouza Sitabuldi, subject to certain conditions including
       inter alia that …………(i) The Applicants would accept the
       compensation of the land fixed by the Land Acquisition Officer and give
 C     possession of the lands to him; (ii) Development of the land would as
       per the Development Plan of NIT; (iii) All the tenants are to be
       accommodated in the Scheme and (iv) That in the interest of tenants the
       NIT fixed the plot allotment rate @ 50% of the market value, without
       prejudice to Rule 7(3) of the 1983 Rules.
 D           4.9 That the NIT passed a Board Resolution on 23.10.1997 to
       implement the altered Scheme in terms of G.O. dated 07.10.1997. That
       the Special Land Acquisition Officer, NIT passed an Award dated
       16.12.1997 in respect of the land admeasuring 5677 sq.ft bearing Khasra
       No.320 Sitabuldi,Nagpur. That, pursuant to the Award declared by the
       Land Acquisition Officer, possession of the land was taken by the Land
 E     Acquisition Officer and handed over to NIT. It appears that, out of
       271552.60 sq.ft of the land, only 114079.36 sq.ft was acquired by NIT
       and the rest of the lands remained with the land owners.
            4.10 That the Final Development Plan in terms of Section 31 of
       the MRTP came to sanctioned in the year 2001.
 F
              4.11 That pursuant to the G.O. dated 07.10.1997, the process of
       widening of the Abhyankar road was initiated and notices were issued
       for demolition of shops. At that stage, Writ Petition No.798 of 2002 was
       filed by some of the Abhyankar Road tenants challenging the demolition
       notices issued by the NIT to the tenants in the process of road widening.
 G     The said Writ Petition came to be dismissed by the High Court by judgment
       and order dated 22.02.2002. The matter was carried before this Court.
       Before this Court, a compromise was reached between the petitioners
       of W.P.No.798 of 2002 and land owners and NIT. By order dated
       08.04.2002, SLP© No.4846 of 2002 was disposed of in terms of the
 H     compromisearrived at between the land owners, the tenants (only on
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                  1009
                [M. R. SHAH, J.]

writ petitioners) original petitioners to W.P.No.725 of 2002), wherein        A
inter alia the following conditions were specified:
      • The Landlord shall construct a multi-storeyed building on the
          reconstituted plot that was to be allotted to him by the NIT.
      • The Tenant and Landlord shall within a period of one week
                                                                              B
          from the filing of the compromise petition would vacate such
          area out of the property covered in the instant proceedings in
          their possession as is required for widening of the Abhayankar
          Road.
       The compromise also provided, NIT to allot one single reconstituted
                                                                              C
plot and redevelopment of suit property to be carried out in accordance
with the Development Plan of Nagpur City and all tenants to be rehoused
post development.
       4.12 That thereafter, on the request made by the owners, the
Resolution was passed by the NIT dated 23.10.2003 to allot a single
reconstituted plot admeasuring 10602.09 sq.mts as undivided share and         D
the same was offered to the Buty family. That thereafter, the Government
by letter dated 12.11.2003 allotted the reconstituted plot to the owners.
From the letter dated 12.11.2003, it appears that the land for road will be
provided as per the Development Plan and that the beneficiaries will
have to make land available for road widening and parking.                    E
      4.13 It appears that thereafter the NIT represented to the State
Government vide Representations dated 16.08.2005 and 29.03.2006
purportedly under Section 37(1) of the MRTP Act in order to increase
the width of the Abhyankar Road from 12 metres to 24 metres and for
converting the reconstituted plot from residential to commercial in order     F
to accommodate the tenants running commercial shops.
       4.14 It appears that thereafter on 02.08.2006, the owners entered
into a development agreement with one of the petitioners herein – M/s
Goel Ganga Infrastructure & Real Estate Pvt. Ltd. For developing the
property bearing Khasra No.320.                                               G
      4.15 That thereafter the State Government passed an order dated
22.06.2007 under Section 37(1) of the MRTP Act permitting the change
of use in respect of Khasra No.320 and 315 (Part) from residential to
commercial. It appears that the permission was also granted by the State
to widen the Abhyankar Road to 24 metres in place of 12 metres.
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1010             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A             4.16 It appears that thereafter the provisional sanction was granted
       by NIT on 22.04.2008 to the drawing/building map to the layout plan
       submitted by developer for the construction of a commercial complex.
       It appears that thereafter vide letter dated 18.08.2009, the NIT issued a
       letter to the land owners allotting a single reconstituted plot admeasuring
       114079.36 sq.mts to the land owners, subject to the conditions mentioned
 B
       in the said letter. That thereafter, on 10.02.2010, a lease deed was
       executed between the NIT and the land owners in respect of the
       reconstituted plot subject to the terms and conditions mentioned in the
       allotment letter dated 18.08.2009. It appears that thereafter on
       15.05.2012, the NIT sanctioned the Final Layout Plan in respect of the
 C     reconstituted plot as per the D.C.R. of Nagpur City. That the building
       plan also came to be sanctioned on 27.06.2012 in accordance with the
       D.C.R. of Nagpur City.That, on 10.12.2014, building permit and
       commencement certificates were issued by the NIT subject to certain
       conditions specified therein. That a revised building plan was also
       sanctioned by the NIT on 11.12.2014 subject to the conditions mentioned
 D
       therein.
             4.17 That thereafter on 24.04.2015, the NIT issued notices to the
       tenants asking them to vacate a portion of their shops so as to enable
       construction as per the layout plan.
 E            4.18 The aforesaid notices gave rise to filing of Writ Petition
       No.2695 of 2015 before the High Court of Bombay, Nagpur Bench. In
       the said Writ Petition, the Respondents Nos.1 to 18 herein the original
       writ petitioners prayed inter alia for an order quashing the notices issued
       by the NIT on 24.04.2015. That the said petition was opposed by the
       original writ petitioners as well as the NIT. It appears that thereafter the
 F     original writ petitioners filed an application being C.A.No.1615 of 2015
       in W.P.No.2695 of 2015 praying for amendment to the prayers in the
       writ petition and allow them to challenge the sanctioned plan dated
       27.06.2012 and the revised plan dated 11.12.2014. The said amendment
       was opposed by the original land owners and the developers. However,
 G     thereafter High Court allowed the said Amendment application.
              4.19 It appears that, during the course of the hearing, the High
       Court by order dated 03.09.2015 in W.P.No.2695 of 2015 directed the
       Chairman, NIT to explore the possibility of an amicable settlement by
       calling the representatives of both the tenants and the developers and
 H     land owners and directed to submit a report to the Court. It appears
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                 1011
                [M. R. SHAH, J.]

that, pursuant to the order dated 03.09.2015, the Chairman, NIT called       A
all the parties. That thereafter the Chairman, NIT submitted a report on
15.10.2015 stating that no settlement could be arrived at between the
parties.
       4.20 That thereafter, by impugned judgment and order, the High
Court has allowed the Writ Petition and has quashed and set aside the        B
demolition notice dated 28.04.2015 issued by the NIT. The High Court
has also further observed that it will be open for the NIT to issue fresh
notices of demolition to the writ petitioners after the sanctioned layout
plan dated 15.05.2012, the building permit granted on 27.06.2012 revised
on 11.12.2014 as well as the construction, if any, carried out are brought
in conformity with the Scheme published under Section 45 of the NIT          C
Act of 23.09.1964. While passing the impugned judgment and order the
High Court has observed and held that the layout plan sanctioned in the
building permit granted are contrary to the provisions of the Scheme
published and sanctioned under Section 45 of the NIT Act and that the
same suffers from vice of internal mischief.                                 D
      4.21 That the impugned judgment and order passed by the High
Court dated 15.09.2016 in W.P.No.2595 of 2016 is the subject matter of
the present appeals.
       5. It appears that, in the meantime and after the impugned judgment
and order passed by the High Court, the original Scheme sanctioned           E
under Section 45 of the NIT Act which provided 15 metres internal road
came to be modified as provided under the NIT Act by deleting 15 metres
internal road. The same came to be published in the Government of
Maharashtra Gazette on 24.04.2017. That the W.P.No.5005 of 2017
was filed by the 18 tenants/shopkeepers before the Nagpur Bench,             F
Bombay High Court questioning the Resolution passed by the NIT dated
24.04.2017 issued under Section 46 of the NIT Act deleting 15 metres
internal road and another internal road from the Scheme. That a Transfer
Case No.23 of 2018 was filed before this Court praying inter alia for
transfer of W.P.No.5005 of 2017 to this Court. That is how, the Transfer
Case No.23 of 2015 is also listed along with the present group of appeals.   G
      5.1 We have heard the learned counsel appearing for the
respective parties in the transferred Writ Petition No.5005 of 2017 also,
along with the other appeals arising out of the impugned judgment and
order dated 15.09.2016 passed in W.P.No.2695 of 2015.
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1012             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A           6. Mr. V. Giri, Mr. Mukul Rohtagi and Mr. Dhruv Mehta, learned
       senior counsel appearing on behalf of the respective appellants have
       vehemently submitted that the impugned judgment and order passed by
       the High Court is contrary to the provisions of MRTP Act and also the
       law laid down by this Court in the case of Manohar Joshi vs. State of
       Maharashtra &Anr. 2012 (3) SCC 619.
 B
             6.1 The learned counsel appearing on behalf of the respective
       appellants-original respondents have vehemently submitted that while
       passing the impugned judgment and order the High Court has not properly
       appreciated and considered the relevant provisions of MRTP Act.
 C            6.2 The learned counsel appearing on behalf of the respective
       appellants have vehemently submitted that though in the original Scheme
       framed under the provisions of the NIT, 1936 there was a provision for
       15 metres internal road, thereafter when the MRTP Act came to be
       enacted and came into force and the Development Plan framed and
       sanctioned under the provisions of the MRTP Act did not contain any
 D     “internal road” as was there in the Scheme published under Section 45
       of the NIT Act, in view of the provisions of the MRTP Act, the
       Development Plan overrides the DP Scheme and, therefore, there is no
       question of providing any internal road. It is submitted that the High
       Court has not properly appreciated the abovesaid at all.
 E            6.3 It is vehemently submitted by the learned counsel appearing
       on behalf of the respective appellants that, as per the law laid down in
       the case of Manohar Joshi (supra), the DP Plan overrides the Scheme;
       and anything contrary to the DP Plan in the Scheme shall have to be
       varied to bring it in line with the Development Plan sanctioned under the
 F     provisions of MRTP Act. It is submitted that, therefore, the High Court
       has materially erred in quashing and setting aside the notices of demolition
       which are based upon final layout plan sanctioned on 15.05.2012 and
       building permit granted on 27.06.2012, and revised on 11.12.2014, which
       were as per the provisions of MRTP Act.

 G            6.4 It is further submitted by the learned counsel appearing on
       behalf of the respective appellants that the High Court has materially
       erred in misreading and/or misinterpreting the judgment of this Court in
       Manohar Joshi (supra) and held that the statutory obligations created
       upon the NIT under Section 45 of the NIT Act to execute the Scheme to
       the extent it is not in variation or modification of the proposals in the
 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                   1013
                [M. R. SHAH, J.]

Final Development Plan, continues to subsist and can be enforced. It is        A
vehemently submitted by the learned counsel appearing for the respective
appellants that the aforesaid observations are justcontrary to the
observations made by this Court in the case of Manohar Joshi(supra).
It is submitted that in the case of Manohar Joshi (supra) this Court has
specifically observed and held that even if such a variation as directed
                                                                               B
under Section 39 of MRTP Act does not take place, the land cannot be
put to use in any way in contradiction with the provisions in the DP Plan.
       6.5 It is further submitted by the learned counsel appearing on
behalf of the respective appellants that even the aforesaid finding and
theobservation are contrary to Section 43 of the MRTP Act which provides
that once the declaration of intention to prepare a Development Plan is        C
presented, no development contrary thereto can be permitted.
       6.6 It is further submitted by the learned counsel for the respective
appellants that the High Court has not properly appreciated and considered
the fact that, in view of the subsequent development and the widening
of the existing road, there was no necessity for internal road as provided     D
in the Scheme under the NIT Act. It is submitted that as such in view of
the subsequent development and widening of the existing road, when
subsequently the DP under the MRTP Act was prepared, there was no
provision for 15 metres internal road as provided earlier in the Scheme
under the NIT Act.                                                             E
        6.7 It is further submitted by the learned counsel that the High
Court has not properly appreciated the fact that as such in the
Development Plan prepared under the provisions of MRTP Act, which
was first prepared in the year 1976 and in the subsequent DP, there was
no provision for the internal road and, despite the same, the same was         F
not challenged by the original writ petitioners. It is submitted that even
initially what was challenged in the main writ petition was demolition
notices. It is submitted that even subsequently also the DP prepared
and sanctioned under the provisions of MRTP Act,which does not contain
any provision for internal road was not under challenge at all. It is
submitted that, therefore, the layout plan came to be sanctioned under         G
the provisions of the MRTP Act and the building permit was issued under
the provisions of MRTP Act, which came to be challenged subsequently
by way of amendment. It is submitted that in view of the relevant
provisions of the MRTP Act, the construction has to be made as per the
layout plan and the building permit granted under the provisions of MRTP       H
1014             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A     ACT. It is submitted, that, therefore, the High Court has materially
       erred in quashing and setting aside the final layout plan as well as the
       building permit solely on the ground that the same is in contravention of
       the Scheme published under Section 45 of the NIT Act.
              6.8 It is further submitted by the learned counsel for the Appellants
 B     that the High Court has not properly appreciated and considered the
       stand of the NIT that punctuated lines in the Development Plan only
       indicate the boundaries of the Scheme under the control of the NIT and
       it has no more significance than this.
              6.9 It is further submitted by the learned counsel that the High
 C     Court has materially erred in observing that, in the absence of any
       provisions contrary to the internal road, shown in the Development Plan,it
       cannot be said that the provisions of the internal road vanishes
       automatically. It is submitted that the High Court has not properly
       appreciated the fact that as such the Development Plan which has been
       prepared in consonance with the provisions of the MRTP Act, specifically
 D     do not provide any internal road, which was earlier provided in the Scheme
       under the NIT Act.
             6.10 It is further submitted by the learned counsel that even the
       Government Resolution dated 07.10.1997 specifically provided and/or
       permitted to develop the landin question as per the Development Plan
 E     and not as per the Scheme. It is submitted by learned counsel that while
       issuing G.O. dated 07.10.1997,it was specifically noted that the 50 ft. (15
       metres) wide road through the land is not provided under the
       Development Plan. It is submitted that the aforesaid was even considered
       and noted by the NIT. It is submitted that despite the above the High
 F     Court has observed that all throughout the NIT desired to implement the
       Scheme.
              6.11 It is further submitted by the learned counsel that the High
       Court has not properly appreciated the fact that even one consolidated
       plot was allotted under the provisions of the MRTP Act and thereafter
 G     the layout plan as per the provisions of the MRTP Act was submitted
       and got sanctioned and the development permission was obtained to
       carry out the construction which was granted as per the DP sanctioned
       under the provisions of MRTP Act. It is submitted that the High Court
       has materially erred in quashing and setting aside the demolition notices
       which as such were consequent upon the sanction of the layout plan
 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                   1015
                [M. R. SHAH, J.]

and the grant of the permission. It is submitted that the High Court has       A
materially erred in quashing and setting aside the sanctioned layout plan
as well as the development permission granted under the provisions of
the MRTP Act. It is further submitted by the learned counsel that the
High Court has, therefore, materially erred in observing and holding that
grant of permission/sanction of layout plan which was in contravention
                                                                               B
of the Scheme under the NIT Act was a mischief in law to provide an
unfair advantage to the developers and the owners and it deprives the
facility of frontage to the tenants on the internal road.
       6.12 It is further submitted by the learned counsel that the High
Court has materially erred in not appreciating the fact that only 18 tenants
filed the writ petition and were aggrieved, against which majority of the      C
tenants accepted the settlement/compromise before this Court. It is
stated that the appellants are ready and willing to provide the same benefit
to the original writ petitioners herein also. It is submitted, however, for
some oblique reason and/or to get some more benefits, only 18 tenants
approached the High Court and filed the writ petition.                         D
       6.13 The learned Counsel appearing on behalf of the respective
appellants have vehemently submitted that, on one hand, the High Court
has specifically observed that, in paragraph 86, the High Court has not
set aside and it is also not necessary for the High Court to set aside the
layout plan and the building permit granted by the NIT,the ultimate            E
observation made by the High Court in paragraph 89(2) would tantamount
to quashing and setting aside the sanctioned layout plan and even the
building permit.
       6.14 Making the above submissions and relying upon the provisions
of NIT Act as well as the MRTP Act and the decision of this Court in           F
the case of Manohar Joshi (supra), it is requested to allow the present
appeals and quash and set aside the impugned judgment and order passed
by the High Court.
     7. The present appeals are vehemently opposed by Ms. Rukhmini
Bobde, learned Advocate appearing for the writ petitioners and Ms.             G
Deepa Kulkarni learned Advocate also.
       7.1 The learned counsel appearing on behalf of the original writ
petitioners have supported the impugned judgment and order passed by
the High Court.
                                                                               H
1016             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A            7.2 It is vehemently submitted by the learned counsel appearing
       on behalf of the original writ petitioners that the impugned judgment and
       order passed by this High Court is absolutely in consonance with the
       provisions of the NIT Act as well as the MRTP Act, which is not required
       to be interfered by this Court.
 B            7.3 It is vehemently submitted by learned counsel for original writ
       petitioners that on true interpretation of the provisions of NIT Act, more
       particularly Section 45(3) and 45 of the NIT Act, the High Court has
       rightly observed and held that unless and until the Scheme sanctioned
       under the NIT Act is varied and/or is modified under the provisions of
       the NIT Act, the Scheme shall prevail and shall have to be acted upon.
 C
              7.4 The learned counsel appearing on behalf of the original writ
       petitioners have emphasised on the object and purpose to provide 15
       metres internal road in the Scheme sanctioned under the NIT Act. It is
       submitted that the internal road provided in the Scheme sanctioned under
       Section 45 of the NIT Act was a part of Street Scheme so as to avoid
 D     the traffic congestion. It is submitted that the use of land in question on
       the date of such Scheme was initially for residential purposes with internal
       road, one cinema theatre and the peripheral area being used for shops/
       offices purposes. It is submitted that the object and purpose for providing
       the internal road under the Scheme/Street Scheme was for creating
 E     new or improving existing means of communication and facilities for
       traffic. It is submitted that the execution of the Scheme was for (i)
       providing huge commercial complex inside the Scheme area to
       accommodate the tenants apart from others, (ii) widening of Mahatma
       Gandhi Road and Abhyankar Road outside the Scheme area; (iii) providing
       50 ft (15 metres) wide internal road along with others two roads inside
 F     the Scheme area to ease out the traffic and removing congestion, and
       (iv) to provide space open to sky for parking . It is submitted that,
       therefore, once there was a Scheme/Street Scheme as sanctioned under
       Section 45 of the NIT Act with specific object and purpose, merely
       because in the Development Plan prepared under the MRTP Act, there
 G     was no specific reference to the internal road, it cannot be said that the
       sanctioned Scheme which was sanctioned under Section 45 of the NIT
       Act is not to be implemented, even if the same is not varied or modified
       under the provisions of the NIT Act.


 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                   1017
                [M. R. SHAH, J.]

       7.5 It is submitted that the High Court has rightly observed and        A
held that unless and until the Scheme is varied or is modified by the
Planning Authority, which in the present case i.e. NIT, after following
the due process under Section 46 of the NIT Act, the Scheme has to be
implemented and anything including the sanction of the layout plan and/
or grant of building permission which would be in contravention of the
                                                                               B
Scheme under NIT Act, are illegal and contrary to the provisions of the
NIT as well as the MRTP Act, and, therefore, the High Court has
rightly quashed and set aside the demolition notices and has rightly
observed that it would be open for the NIT to issue fresh notices of
demolition, after sanctioned plan, the building permit as well as
construction, if any, carried out are brought in conformity with the Scheme    C
published under NIT Act on 23.06.1964.
       7.6 It is vehemently submitted by the learned counsel that the
impugned judgment and order passed by the High Court is absolutely in
furtherance of the object of the Scheme published under Section 45 of
the NIT Act i.e. for better development and to avoid the traffic congestion.   D
The learned counsel appearing on behalf of the original writ petitioners
has heavily relied upon the decision of this Court in the case of Manohar
Joshi(supra)reported in (2012) 3 SCC 619,in support of their submissions
that planning involving highly complex cities depends upon scientific
research, study and experience and, thus deserves due reverence and
therefore, the Scheme which is prepared after due consideration of             E
necessity for better street planning has to be implemented,unless the
same is varied and/or is modified after following due procedure as
requiredunder the provisions of the NIT Act.
       7.7 It is vehemently submitted by the learned counsel that as the
appellants have as such subsequently implemented the impugned judgment         F
and order passed by the High Court by modifying the Scheme which
was earlier sanctioned and prepared under the NIT Act, as permitted by
the High Court and, therefore, now thereafter it is not open for the
appellants to challenge the impugned judgment and order passed by the
High Court.                                                                    G
      8. Now, so far as challenge to variation/modification of the Scheme
under Section 46 of the NIT Act, which is the subject matter of the
Transfer Petition, it is vehemently submitted by the learned counsel on
behalf of the writ petitioners that the same is absolutely in breach of the
provisions of the NIT Act. It is submitted that a detail procedure required    H
1018             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


 A     to be followed for variation and/or modification of the Scheme as provided
       under the NIT Act has not been followed at all. It is submitted that
       neither any objections were invited nor any opportunity was given to the
       writ petitioners. It is submitted that, therefore, subsequent variation and/
       or modification of the Scheme is absolutely illegal and deserves to be
       quashed and set aside. It is submitted that even the same can be said to
 B
       be in violation of the principles of natural justice. In support of the above,
       the learned counsel appearing on behalf of the writ petitioners-the tenants
       has heavily relied upon the decision of this Court in Scheduled Caste
       and Weaker Section Welfare Association vs State of Karnataka
       reportedin (1991) 2 SCC SCC 604.
 C            8.1 By making the above submission, it is requested to dismiss the
       appeals and upheld the impugned judgment and order passed by the
       High Court and to allow the Transfer Petition and quash and set aside
       the variation and/or modification of the Scheme published under Section
       46 of the NIT Act.
 D             9. Now, so far as the Transfer Petition is concerned, and challenge
       to the subsequent variation and/or modification of the Scheme published
       under Section 46 of the NIT Act is concerned, the learned counsel
       appearing on behalf of the NIT as well as the original land owners and
       developers have vehemently submitted that the Scheme is varied/modified
 E     after following due procedure required under the provisions of the MRTP
       Act. It is submitted that, as per Section 39 of the MRTP Act, where a
       final Development Plan contains proposals which arein variation, or
       modification of those made in a Town Planning Scheme, which has been
       sanctioned by the State Government before the commencement of the
       MRTP Act, the Planning Authority shall vary such Scheme suitably under
 F     Section 92 to the extent necessary by the proposals made in the Final
       Development Plan. It is submitted that Section 92 authorises the State
       Government to vary and/or modify the Scheme. It is submitted that,
       therefore, if Sections 39 and 92 of the MRTP Act are conjointly read, it
       can be seen that the variation of the Scheme subsequently shall be a
 G     formal action to bring the Scheme in consonance with the Development
       Plan. It is submitted that, therefore, when the Development Plan was
       sanctioned after inviting the objections etc. the subsequent variation of
       the Scheme to bring the Scheme in consonance with the sanction
       Development Plan would be only a formality which is required to be
       done under Section 92 of the MRTP Act. It is submitted that, therefore
 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                  1019
                [M. R. SHAH, J.]

subsequent variation and/or modification of the Scheme which in the           A
present case would be as per Section 39 and Section 92 of the MRTP
Act would be absolutely in consonance with the provisions of the MRTP
Act as well as the NIT Act. It is submitted that the provisions of the
MRTP Act and NIT Act are required to be read harmoniously to
sub-serve the objectsand purposes of Sections 39 and Section 92 and
                                                                              B
other relevant provisions of the MRTP Act.
       10. Now, so far as the submission on behalf of the original writ
petitioners that in view of the fact and subsequently the Scheme came
to be varied as permitted by the High Court in the impugned judgment
and order and, therefore, the judgment and order passed by the High
Court can be said to have been implemented and, therefore, the appellants     C
may not be permitted to challenge the impugned judgment and order of
the High Court is concerned, it is submitted that merely because without
prejudice and to be on safer side if the Scheme is varied and/or modified,
it cannot be said that appellants have waived their right to challenge the
impugned judgment and order, more particularly when the High Court            D
by the impugned judgment and order has set aside the demolition notices
and virtually sought as to know that the sanctioned layout plan and validly
granted the building permit.
        11. We have heard the learned counsel appearing on behalf of the
respective parties. What is challenged in the present batch of appeals is     E
the impugned judgment and order dated 15.09.2016 passed by the Bombay
High Court passed in Writ Petition No.2695 of 2015. On consideration
of the impugned judgment and order passed by the High Court, it appears
that the following two questions fell for determination before the High
Court:
                                                                              F
      “1. Whether mere absence of proposal of “internal road “ in the
      final Development Plan under sub-section (6) of section 31 of
      the Maharashtra Regional and Town Planning Act and its existence
      in the Scheme, published under Section 45 of the Nagpur
      Improvement Trust Act, can be termed as ‘variation’ or
      ‘modification’, as contemplated by section 39 of the MRTP Act?,         G
          1. Whether the impugned notices of demolition, based upon
          final layout plan sanctioned on 15-05-2012 and the building
          permit granted on 27-06-2012 and revised on 11-12-2014, need
          to be set aside for want of Internal Road, which was the
                                                                              H
1020             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A               part of the Scheme sanctioned under Section 44 of the NIT
                 Act?
               11.1 It is required to be noted that initially demolition notices
       dated 24.04.2015 were challenged before the High Court issued by the
       NIT. At this stage, it is required to be noted that the said demolition
 B     notices were issued consequent upon the sanctioned layout plan dated
       15.05.2012, the building permit granted on 27.06.2012 and revised on
       11.12.2014. Subsequently, by an amendment, the original writ petitioners
       challenged the plan sanctioned by the NIT on 27.06.2012 and the sanction
       granted to the revised plan on 11.12.2014. The said amendment was
       allowed. The challenge was mainly on the ground that the sanction
 C     granted is illegal and contrary to the Scheme. The Scheme which was
       sanctioned in the year 1964 under Section 45 of the NIT Act provided
       15 metres internal road. At this stage, it is required to be noted that the
       improvement Scheme known as the “Abhyankar Road Widening and
       Buty Mahal Street Scheme” was prepared and sanctioned under the
 D     provisions of NIT Act in the year 1964. However, thereafter, the MRTP
       Act came to be enacted and came into effect subsequent to the enactment
       of the NIT Act i.e. with effect from 28.12.1966. From the chronology
       of list of events noted hereinabove it appears and it is not in dispute that
       the First Final Development Plan under Section 31 of the MRTP Act
       came to be sanctioned on 03.06.1976, which do not contain 15 metres
 E     internal road as was there in the Scheme sanctioned under Section 45 of
       the NIT Act. Even subsequently also, when the DP was revised in the
       year 1989 and thereafter in 2001, the above internal road was not depicted
       in the revised DP.That thereafter the Government allotted reconstituted
       composite plot under the MRTP Act and original land owners/developers
 F     submitted the layout plan, which came to be sanctioned by the NIT and
       even the building permission was granted under the provisions of the
       MRTP Act. Therefore, the NIT issued the demolition notices dated
       24.04.2015 impugned before the High Court so as to allow/permit the
       original land owners/developers to put up the construction on the land in
       question as per the sanctioned layout plan and the building construction
 G     permission. The High Court by the impugned judgment and order has
       held that as in the Scheme sanctioned under Section 45 of the NIT Act
       15 metres internal road is provided, unless the same is varied and/or
       modified under Section 46 of the NIT Act by the Planning Authority,the
       same shall have to be implemented and thereby the High Court has
 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                   1021
                [M. R. SHAH, J.]

quashed and set aside the notices of demolition dated 24.04.2015 keeping       A
it open for the NIT to issue fresh notices of demolition to the original
writ petitioners after the sanctioned layout plan dated 15.05.2012, the
building permit granted dated 27.06.2012 and revised on 11.12.2014 as
well as the construction, if any, carried out are brought in conformity
with the Scheme published under Section 45 of the NIT Act on
                                                                               B
23.06.1964.
      11.2 Therefore, the short question which is posed for consideration
before this Court is whether, in the facts and circumstances of the case,
when the Development Plan sanctioned under the provisions of MRTP
Act do not provide an internal road from the land in question, still the
Scheme published under Section 45 of the NIT Act which provided 15             C
metres internal road would be applicable and/or would have to be
implemented, though the Scheme may be contrary to the Development
Plan sanctioned under the provisions of the MRTP Act ?
      11.3 To answer the aforesaid question the object and purpose of
MRTP Act, relevant provisions of MRTP Act are required to be referred          D
to and considered.
      11.4 From the statement and object of the MRTP Act 1966, it
appears that the same has been enacted to make provisions for: (1)
planning the development and use of land in regions established for their
purposes and for constitution of Regional Planning Boards therefor; (2)        E
to make better provisions for the preparation of Development Plan with
a view to ensuring that Town Planning Schemes are made in the proper
manner and the execution is made effective; (3) to provide for the
compulsory acquisition of land required for public purposes in respect of
the plans, and (4) for purposes connected with the matters aforesaid.          F
The said Act is enacted to make provisions for planning the development
and the use of land in regions established for their purpose and to ensuring
that Town Planning Schemes are made in a proper manner and their
execution is made effective. Therefore, the MRTP Act came to be
enacted with aforesaid object and purpose.
                                                                               G
       11.5 Section 3 of the Act permits the State Government to establish
any area in the State to be a region. A regional plan is supposed to be
prepared for various subjects which are mentioned in Section 14 of the
Act. The ‘Development Plan’ is defined under Section 2(9) of the Act
as a plan for the development or redevelopment of the area within the
                                                                               H
1022             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


 A     jurisdiction of Planning Authority. Section 2(19) defines the “Planning
       Authority” to mean a local authority, and it includes some other specified
       authorities also. There is no dispute that the Development Plan has to be
       prepared “in accordance with the provisions of regional plan” which is
       what is specifically stated in Section 21(1) of the Act.”
 B            11.6 Section 39 of the MRTP Act provides for -
              Section 39. “Variation of town planning scheme by development
              plan – where a final development plan contains proposals which
              are in variation or modification of those made in a town planning
              scheme which has been sanctioned by the State Government
 C            before the commencement of this Act, the Planning Authority
              shall vary such scheme suitably under Section 92 to the extent
              necessary by the proposals made in the final development plan.”

              11.7 We are concerned with the Final Development Plan of 1976
 D     which does not contain the 15 metres internal road from the land in
       question as against the 15 metres internal road provided in the final Scheme
       of 1964. Thus the Scheme of 1964 prepared and sanctioned the provisions
       of the NIT Act to the extent of providing 15 metres internal road can be
       said to be not in consonance with the Development Plan sanctioned
       under the provisions of the MRTP Act.
 E
              11.8 Section 43 of the MRTP Act provides for restrictions on
       development of the land after the date on which the declaration of intention
       to prepare the Development Plan for any area is published in the official
       gazette except as provided under proviso to Section 43 of the Act.
       Section 46 of the MRTP Act provides that the Planning Authority in
 F     considering the application for permission for development shall have
       due regard to the provisions of any draft or final plan or proposals published
       by means of notice submitted or sanctioned under the MRTP Act. Section
       59 of the MRTP Act provides for preparation of the Scheme under the
       MRTP Act, which specificallyprovides that the Planning Authority may
 G     prepare one or more Town Planning Scheme for the area within its
       jurisdiction or any part thereof for the purpose of implementing the
       proposalsin the Final Development Plan. As such, we not concerned
       with Section 59 of the MRTP Act, as in the present case, the Scheme
       which provides 15 metres internal road was preparedand sanctioned
       under the provisions of theNIT Act and prior to the enactment of MRTP
 H     Act and, therefore, Section 39 read with Section 92 shall be applicable.
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                  1023
                [M. R. SHAH, J.]

       11.9 Therefore, on conjoint reading of Sections 39, 43, 46 and         A
even Section 59 of the MRTP Act, the Development Plans prepared and
sanctioned under the provisions of the MRTP Act shall prevail. Therefore,
there cannot be any development and/or construction permitted contrary
to the Development Plan prepared and sanctioned under the provisions
of the MRTP Act, though the Scheme prepared and sanctioned under
                                                                              B
Section 45 of the NIT Act may permit such development and/or
construction. As such, the aforesaid view which we are taking is
supported by the decision of this Court in the case ofManohar Joshi
(supra). In the case of Manohar Joshi (supra), after considering the
relevant provisions of the MRTP Act as well as the NIT Act,this Court
has specifically observed and held that when there is a conflict between      C
the Development Plan prepared and sanctioned under the provisions of
MRTP Act and the Scheme sanctioned under the provisions of the NIT
Act, the DPshalloverride the TPScheme. It is also further observed
that even if the variation, as directed under Section 39 of the MRTP Act
does not take place, the land cannot be put to use, in any way, in
                                                                              D
contradiction with the provisions of DP Plan. In the case of Manohar
Joshi (supra) this Court confirmed the findings recorded by the High
Court that the DP Plan overrides the TP Scheme. This Court did not
accept the submission that the Development Plan and the TPScheme
operate independent of each other and, until the State Government
exercise its power of eminent domain under the Development Plan, and          E
acquires the land, the land owners can develop its property as per the
user permitted under the TP Scheme. While not accepting the above
submission, it is observed by this Court that permitting a development
contrary to the provisions of the Development Plan, knowing fully well
that the user under the TP Schemeis at variance in the Development
                                                                              F
Plan will make provisions of Sections 39, 42, 46 and 52 of the MRTP Act
meaningless. Therefore, the contrary observation and finding recorded
by the High Court that unless and until the Scheme is varied under Section
46 of the NIT Act as required under provisions of Section 39 of the
MRTP Act, the Scheme sanctioned under Section 45 of the NIT Act
shall subsist and can be enforced, cannot be sustained and the same           G
deserves to be quashed and set aside.
      11.10 It is required to be noted that though in the Scheme sanctioned
under the provisions of the NIT Act proposing 15 metres internal road
was in operation since 23.01.1964, when the MRTP Act came into force
                                                                              H
1024            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


 A     and even thereafter when the First Development Plan was sanctioned
       under Section 31 of the MRTP Act for Nagpur in the year 1976 in which
       there was no proposal for 15 metres internal road, and even
       thereafter,twice the Development Plan was revised first in the year 1989
       and again in the year 2001 in which also there was no provision for the
       15 metres internal road, despite the above, at no point of time, anybody
 B
       including the original writ petitioners challenged the Development Plan
       under the MRTP Act in which the 15 metres internal road was not
       shown.Even thereafter also,at no point of time,and even in the writ
       petition, the original writ petitioners challenged and prayed to set aside
       the Development Plan in which there was no provision for 15 metres
 C     internal road, though the same was mentioned in the Scheme prepared
       and sanctioned under Section 45 of the NIT Act.
              11.11 It is also required to be noted that even the land owners/
       developers have got the layout plan sanctioned and obtained the building
       permission under the provisions of the MRTP Act. Considering the object
 D     and purpose of the MRTP Act noted hereinabove, it appears that though
       there was a provision for internal 15 metres road in the Scheme under
       the NIT Act which was sanctioned in the year 1964, thereafter much
       development had taken place and there are changed circumstances. In
       the Development Plan/revised Development Plan the existing road came
       to be widened from 12 metres to 24 metres and, therefore, when the DP
 E     was prepared and sanctioned under the MRTP Act, there was no proposal
       for 15 metres internal wide road. As discussed hereinabove, the
       Development Plan prepared and sanctioned under the MRTP Act would
       override the TP Scheme. As observed hereinabove, there cannot be
       any development and/or constructionpermitted contrary to the DP Plan
 F     under the MRTP Act. Under the circumstances, the impugned judgment
       and order passed by the High Court cannot be sustained.
              11.12 A faint attempt was made on behalf of the original writ
       petitioners that, in the DP Plan, there was punctuated line which can be
       said to be 15 metres internal road from Abhyankar Road. However, on
 G     considering the part plan of sanctioned Development Plan of Nagpur
       City sanctioned by Notification dated 10.09.2001 (upon which the reliance
       has been placed by the original writ petitioners), the aforesaid cannot be
       accepted. As rightly contended on behalf of the NIT, the punctuated
       lines are described as Mouza Boundary/NIT Scheme Boundary. It is to
       be noted that even the HighCourt noted that there is a conflict between
 H
   NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                     1025
                 [M. R. SHAH, J.]

the DP Plan and the Scheme sanctioned under Section 45 of the NIT                 A
Act.
       11.13 Even the findings recorded by the High Court that the action
of the NIT in sanctioning the layout plan and granting building permit is
mischief of law, cannot be accepted. The layout plans are sanctioned
and the building permit has been granted absolutely in consonance with            B
the DPsanctioned under the MRTP Act. The demolition notices were
received pursuant to and in furtherance of the building permit and so as
to enable the original land owners/developers to put up the construction
as per the layout plan sanctioned and the building permit granted.
Therefore, the High Court has erred in holding that the action of the NIT
was mischief in law.                                                              C

       11.14 It is required to be noted that, on one hand, the High Court
has specifically observed in paragraph 86 that the High Court has not
set aside and it is also not necessary for the High Court to set aside the
layout plan and the building permit granted by the NIT, the observations
made by the High Court in paragraph 89(2) would tantamount to virtually           D
quashing and setting aside the sanctioned layout plan in the building permit.
The sum and substance and the resultant effect of the observations
made by the High Court in paragraph 89(2), the observation made by
the High Court in earlier part of the judgment virtually restrains the original
land owners/developers not to put up any construction on the building             E
layout plan and the building permit granted under the MRTP Act.
Therefore, it appears that though not specifically quashing and setting
aside the sanctioned layout plan and the building permit granted under
the MRTP Act, the High Court has nullified the sanctioned layout plan
and the building permit granted under the MRTP Act.
                                                                                  F
       11.15 It is also required to be noted that the dispute is pending
since many years. The land owners/developers entered into compromise
with other similarly situated tenants. Now, only 18 tenants are opposing
the development, though the land owners/developers have agreed and
are ready and willing to give similar treatment to them also which would
be given to other tenants as agreed before this Court. It appears that for        G
some reasons and/or to pressurize the land owners/ developers to give
them some more benefits, the original writ petitioners are opposing the
development/construction. Though the original land owners/developers
are having the building permission and have got their plans sanctioned
under the provisions of MRTP Act and even after incurring huge                    H
1026             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


 A     expenses, they are not in a position to put up any further construction
       because of the pending litigation. Therefore, the equity would also be in
       favour of the appellants as land owners/developers. As, at this stage, it
       is required to be noted that even those tenants with whom the original
       land owners/developers have entered into a compromise before this Court
       have appeared through the Advocate and have stated that they are out
 B
       of possession since last more than ten years and therefore, they all have
       requested to quash and set aside the impugned judgment and order passed
       by the High Court and permit the land owners/developers to complete
       the construction.
             11.16 Insofar as the submission made by the learned counsel
 C     appearing on behalf of the original writ petitioners that after the impugned
       judgment and order passed by the High Court, the NIT has modified the
       Scheme as permitted by the High Court and, therefore, the impugned
       judgment and order passed by the High Court is acted upon and, therefore,
       the impugned judgment and order passed by the High Court may not be
 D     permitted to be challenged by the NIT and/or the developer is concerned,
       the same has no substance. Merely because to avoid any further legal
       complication, if the NIT has modified the Scheme that would not preclude
       the NIT and/or the original land owners/developers to challenge the
       impugned judgment and order.
 E           11.17 In view of the above submissions and for the reasons stated
       hereinabove, the impugned judgment and order passed by the High Court
       deserves to be quashed and set aside.
             TRANSFERRED CASE © No.23/2018:
              12. Now, so far as the Transferred Case © No.23/2018 is
 F     concerned, the Writ Petition filed by the original writ petitioners being
       Writ Petition No.5005 of 2017 has been transferred to this Court pursuant
       to the order passed by this Court dated 03.11.2017. In the petition, the
       original writ petitioner have prayed to quash and set aside the Notification
       dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167
 G     dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which
       the original Scheme of 1964 sanctioned under Section 45 of the NIT Act
       has been modified in exercise of power under Section 45 of the NIT Act
       and the 15 metres internal road has been deleted.


 H
  NAGPUR IMPROVEMENT TRUST v. M/S BOMBAYWALA                                  1027
                [M. R. SHAH, J.]

       12.1 It is vehemently submitted on behalf of the original writ         A
petitioners that the Notification modifying the Scheme and deleting 15
metres internal road is without following any procedure as required under
the Act and without inviting any objections and even the approval of the
State Government has not been obtained. However, considering the
contents of the counter affidavit filed on behalf of the NIT in which it is
                                                                              B
specifically stated that after considering the objections sent by the 15
writ petitioners in Petition No.2017, the Authority unanimously passed a
Board Resolution in exercise of power under Section 46 of the Act.
Therefore, it cannot be said that no opportunity at all was given to the
petitioners. The decision to modify the Scheme by deleting 15 metres
internal road has been taken after considering the objections raised by       C
the writ petitioners. It is required to be noted that Section 39 of the
MRTP Act mandates the Planning Authority to vary the Scheme in line
with the Development Plan sanctioned under the MRTP Act. It is required
to be noted that when the DP was sanctioned, without any proposal for
the 15 metres internal road, first in the year 1976 and thereafter in the
                                                                              D
years 1989 and 2001, the same was after following the due procedure
and the same was approved and sanctioned by the State Government.
Therefore, thereafter, when the Scheme to the extent in conflict with
the DP Plan has been modified as mandated under Section 39 of the
MRTP Act, after considering the objections raised by the original writ
petitioners, thereafter, the same cannot be said to be illegal. Therefore,    E
reading Section 39 of the MRTP Act and the provisions of the NIT Act
harmoniously, the impugned Notification modifying the Scheme and/or
Board Resolution modifying the Scheme deleting 15 metres wide road,
which would now be in line with the Development Plan sanctioned under
the MRTP Act, the same cannot be said to be illegal warranting
                                                                              F
interference of this Court. Therefore, challenge to the Notification dated
21.04.2017 issued by the NIT and the respective NIT Resolution
modifying the Scheme deleting 15 metres internal road fails.
        13. In view of the above and for the further reasons stated above,
all the respective Civil Appeals except Civil Appeal arising from SLP(C)
No. 38036/2016 are hereby allowed and the impugned judgment and               G
order dated 15.09.2016 passed by the High Court of Bombay, Bench of
Nagpur passed in Writ Petition No.2695 of 2015 is hereby quashed and
set aside. Civil Appeal arising from SLP(C) No. 38036/2016 (M/s Gaysons
vs. Nagpur Improvement Trust) stands dismissed.
                                                                              H
1028              SUPREME COURT REPORTS                        [2019] 1 S.C.R.


 A            13.1 The Transferred Case © No.23/2018 stands dismissed for
       the reasons stated hereinabove.
               However, it is observed that to the respective original writ
       petitioners shall also be given the same treatment as would be available/
       given to other tenants as agreed before this Court and/or as per the
 B     settlement entered into with other tenants.
              14. All these appeals except Civil Appeal arising from SLP(C)
       No. 38036/2016 are allowed accordingly with the above observations .
       Civil Appeal arising from SLP(C) No. 38036/2016 (M/s. Gaysons (M/s
       Gaysons vs. Nagpur Improvement Trust) and the Transferred Case stand
 C     dismissed. There shall be no order as to costs.


       Devika Gujral                                            Matters disposed of.



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