Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3746 OF 2005.
Mr. N.K. Harchandani,
aged about 50 years, Occu.: Business,
th
R/o. 7 Floor, Poonam Plaza,
Palm Road, Civil Lines, Nagpur,
Tahsil & District : Nagpur(Maharashtra)
.. PETITIONER .
// VERSUS //
(1) The State of Maharashtra,
through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai – 32.
(2) Nagpur Municipal Corporation,
Nagpur, through its Commissioner,
Civil Lines, Nagpur.
.... RESPONDENTS.
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Shri M.G.Bhangde, Senior Counsel for Petitioner.
Shri A.G. Mujumdar, A.P.P. for Respondent/State.
Shri S.K. Mishra, Adv. for Respondent No.2.
Shri S.P.Dharmadhikari, Adv. for Intervenors.
Shri Sunil V. Manohar, Adv.for Intervenors.
----------------------------------------------------------------------------------------------
CORAM : R.C. CHAVAN, J.
DATED : APRIL 13, 2006.
ORAL JUDGMENT :
This petition and the applications for intervention expose
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how lack of precision in the legal regime governing developmental
activities in Nagpur city have enabled people without scruples to take
the system for a ride. The petition and the Civil Applications pose
some very pertinent questions. The petition is therefore, admitted
and taken up for hearing forthwith.
2. This judgment disposes of the writ petition, whereby the
petitioner has taken exception to the orders passed by Nagpur
Municipal Corporation and State of Maharashtra in respect of
petitioner's building plans, as also three applications for intervention.
3. Apart from Nagpur Municipal Corporation, the local authority,
Nagpur has an Improvement Trust as well, which regulates
development of the city of Nagpur. A well intentioned measure to have
an independent body, the Nagpur Improvement Trust, devoted to
development of city, led to duality of authority, and eventually absence
of any regulation, due to pretended confusion as to the authority which
was supposed to control such activity. The facts to be unfolded would
disclose as to how the petitioner took advantage of this divided control
in order to avoid all regulation while constructing his building.
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4. The petitioner became owner of parts of land bearing City
Survey No.2217/1 by two transactions. By each of these transactions
the petitioner acquired 5576.20 sq.mt. of land, as recorded by
mutation entry Nos. 770 and 771, dated 10.08.1990 in the property
card of the land (Annexure “Y” to the petition). On 26.07.1991 a plan
for construction over the land was sanctioned but was abandoned by
the petitioner. On 17.02.1992 the Nagpur Municipal Corporation
sanctioned another plan of construction over the land. This plan
included a basement, user whereof was not specified, ground floor,
first floor, service floor and six more floors. A third plan was submitted
by the petitioner to the Municipal Corporation on 21.09.1995 with
some changes over the 1992 plan. On 04.04.1997 the Corporation
approved this plan with modifications, rejecting the plan for entire
seventh floor, reducing the building height, and specifying the user of
basement for parking.
5. In 1997 and 1998 the petitioner executed sale deeds in favour
of the applicants in Civil Application No.2236 of 2006 for office blocks
in the basement and top floor i.e. seventh floor of the building. While
registering these sale deeds the parties had produced before the Sub-
Registrar a “No Objection Certificate” from the Nagpur Improvement
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Trust and not from Nagpur Municipal Corporation. The petitioner also
sold on 02.07.2001 to one Aspi Bapuna, applicant in Civil Application
No.4798 of 2005, 63025.25 sq.ft. open land by two transactions for
over Rs.3,93,00,000/-.
6. On 26.08.2004 respondent No.2, Nagpur Municipal
Corporation, issued a notice to the petitioner under Section 53 of the
MRTP Act (the Maharashtra Regional & Town Planning Act, 1966)
specifying several irregularities in the construction and stating that the
construction was not in accordance with the building permit. The
notice called upon the petitioner to demolish the structure mentioned
in the schedule and to stop unauthorised user. The seventh floor was
found to be unauthorised and the building was three meters over the
sanctioned height. Notice also specified that the shops were
constructed in the basement area meant for parking. The petitioner
submitted revised plans to the Nagpur Municipal Corporation on
28.10.2004 which were rejected by the Corporation on 22.11.2004.
7. The petitioner preferred an appeal under Section 47 of the
MRTP Act before the “Minister/ Secretary of State of Maharashtra.”
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After hearing the parties the appeal was dismissed on 25 February,
2005. Aggrieved thereby the petitioner has filed this petition seeking
to have the notice dated 26.08.2004 and the order dated 22.11.2004
passed by the Nagpur Municipal Corporation, as also the appellate
order passed by respondent No.1 State Government on 25.02.2005
quashed and set aside. The petitioner also sought interim relief of stay
of the impugned orders pending decision of the petition.
8. At this stage, it may be useful to recount the contentions of
the intervenors, whose applications for intervention are being disposed
of by this very judgment. Civil Application No. 4799/05 has been filed
by Shri Vijay Babhare, Municipal Corporator, and former Chairman of
Standing Committee of the Nagpur Municipal Corporation. Civil
Application Nos.2236/06 and 4798/05 are filed by purchasers of shops,
office blocks and open site from the petitioner. Before hearing of the
applications and the petition commenced, I had carefully gone through
the three applications for intervention and found that they were
meritless attempts to expand the scope of inquiry of the dispute in the
present writ petition. An application for intervention can be permitted
only if intervenor's participation is essential for deciding the lis before
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the Court. As the discussion to follow would show the obfuscatory
points sought to be raised by the intervenors would have obscured the
issues involved, which deserved to be discouraged. Even so, the
learned counsel for the intervenors were given opportunity to address
to show if their prima-facie meritless applications merited any
consideration.
9. Civil Application No.4799 of 2005 was filed by Shri Vijay
Babhare, former Chairman of the Standing Committee of Nagpur
Municipal Corporation. By this application he seeks to highlight his
role in the attempt of the Corporation to strictly enforce the building
Regulations in the instant case. He also contended that his
participation was necessary because the petition and also petitioner's
appeal under Section 47 MRTP Act contained allegations of malafides
against him which he was entitled to answer. When the question of
tenability of this application was considered, amusingly, the learned
counsel for the petitioner first stated that he would withdraw
allegations of malafides, but on second thought he withdrew the
concession.
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10. Since as the Chairman of the Standing Committee, at the
relevant time, or as city father, intervenor Shri Vijay Babhare did not
have power or authority to regulate petitioner's construction, merely
because some allegations of malafides are included in the petition, it
would not be necessary to enlarge the scope of present inquiry. As
already stated, such intervention would tend to obscure the principal
issues involved in the lis. As an influential city father, rather than
indulging in this forensic foray, the applicant could concentrate on
setting right affairs of the Corporation, to avoid recurrence of similar
defiance of building regulations. Had the Municipal Authorities taken
timely steps when the construction was going on, or when parts of the
structure were being sold or occupied, things would not have come to
this pass.
11. Civil Application No.2236 of 2006 is filed by purchasers of,
ironically, the very parts of the building which offend the plan
approved in the year 1997, and which is the subject matter of the
notice issued under Section 53. Applicants claim to have purchased the
shops in the basement and on seventh floor by various sale deeds in
the years 1997 and 1998 for over a crore of rupees. These sale deeds
recite that even undivided share of land was sold to the applicants.
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Therefore, they assailed the notice under Section 53 of the MRTP Act
on the ground that they are entitled to the notice, since they are
owners and occupiers of the structures, use whereof is sought to be
discontinued by the Corporation. The applicants state that Nagpur
Municipal Corporation Authorities have not only allowed mutations to
be carried out in their names, but also have taxed their structures,
and, in view of this, before their structures can be adversely affected
they were entitled to notice under Section 53 of the MRTP Act.
12. Sale deeds in favour of applicants in C.A. No.2236/06 were
executed in the years 1997 and 1998 after Nagpur Municipal
Corporation granted approval to the plan submitted by the petitioner
with modifications, which specifically ruled out construction of seventh
floor and use of basement for any other purpose than parking. Thus,
at the time of sale, the structures sold to intervenors were
unauthorised. It can not be disputed that a builder would not be in a
position to convey any structure without obtaining completion
certificate from the Municipal Corporation, as also that no person can
be permitted to occupy any structure without obtaining necessary
certificate from the Corporation. Therefore, sale deeds executed in
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defiance of these, requirements would not clothe the intervenors with
any rights, which their vendor himself did not possess. It was
necessary for the applicants to have checked up with the Municipal
Authorities whether plans for construction of the structures which they
were going to purchase were duly sanctioned or not.
13. In the discussion on the contention raised by the petitioner
which follows it may be seen that according to the petitioner Nagpur
Improvement Trust had nothing to do with the development of the site
in question. The petitioner had submitted all his plans to Nagpur
Municipal Corporation itself. Yet when the sale deeds were presented
to the Sub-Registrar for registration, a No Objection Certificate
obtained from Nagpur Improvement trust, which had nothing to do
with the matter, was proceeded. It is possible that the Sub-Registrar
would have had no occasion to know as to which of the areas are in
control of Nagpur Municipal Corporation or Nagpur Improvement Trust.
After the sale deeds the Municipal Authorities also blindly effected
mutations and taxed the premises. However, since the transaction
itself was inherently defective and fraudulent to the extent of pushing
N.I.T.'s certificate for getting documents registered, further mutations
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or taxation of the property does not clothe the intervenors with any
right. Since their occupation itself is unauthorised they cannot claim
that they too are entitled to protract the litigation by insisting upon
receiving a notice under Section 53 of MRTP Act. In any case, lapses
on the part of the employees of the Municipal Corporation cannot
result in negating the duty of the Corporation to properly regulate the
construction activities in the city. It would be useful for the city father,
who had sought to intervene in the petition, to ask the Corporation to
frame necessary Rules for effecting mutation and taxing the properties
only after ensuring that the property had come into existence with
necessary sanctions. The Municipal Authorities may have been taxing
unauthorised structures too, because the Municipality has to raise
resources to provide services. Therefore, such taxation may not
operate as estoppel. The Municipal Authorities can not be exempted
from taking action against such unauthorised structures merely
because they are taxed. Even so,to avoid any misunderstanding in
this behalf it would be useful for the Municipal Authorities to consider
this aspect and deal with it appropriately.
14. Though these intervenors claim to have purchased the
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properties in the years 1997 and 1998 and had got their properties
promptly mutated in the municipal records, curiously copy of property
register card filed by the petitioner at Annexure “Y” at pages 191 to
197 of the petition does not record any such sales in the years 1997 or
1998, through it mentions all mutations upto 2003. Deliberate
production of no objection certificate of Nagpur Improvement Trust,
which had nothing to do with the matter, concealing that the
structures in question had not been sanctioned by the Nagpur
Municipal Corporation and getting necessary mutations promptly
effected in the Corporation records, while neglecting to have similar
mutations in the City Survey record clearly shows the complicity of
intervenors in the fraudulent designs of petitioner. In view of this,
since the intervenors only seek to aid and abet the unauthorised
activity of the petitioner, the application does not deserve to be
considered.
15. Civil Application No.4798 of 2005 is filed by Bapunas, who
purchased 63025.25 sq.ft. of open land by two transactions dated
26.09.2000 and 02.07.2001 for consideration of over Rs.3,93,00,000/-.
Though initially the learned counsel for the petitioner attempted to
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submit that there was enough F.S.I. left to enable Bapunas to construct
on the site purchased by them, later he had no inhibition in
categorically stating that what was sold to Bapunas was the leftovers
in the land around 63000 sq.ft. and that no construction could be
raised on that land. This implies that Bapuna had purchased the land
for valuable consideration of Rs.3,93,00,000/- without any prospect of
receiving any return since no development could take place on that
land. The learned counsel for intervenor Bapunas submitted that
precisely because of (mis)appropriation by the petitioner of rights of
Bapunas to construct on their land, Bapunas want to intervene in the
petition.
16. As already observed, the question in the petition relates to
orders of the Municipal Authorities and the State in respect of structure
in question. Bapuna as well as other purchasers/ intervenors who have
filed Civil Application No.2236 of 2006 would have appropriate remedy
in the competent Civil Court if they find that they have been duped,
having received nothing in exchange of valuable consideration paid by
them to the petitioner. They cannot be allowed to intervene in the
petition to expand the scope of inquiry. Therefore, all the applications
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for intervention bearing Civil Application Nos. 4798/2005, 4799/2005
and 2236 of 2006 are rejected.
17. With this lengthy prelude, I would proceed to consider the
arguments advanced on merits of the petition by Shri M.G. Bhangde,
learned Senior Counsel for the petitioner, Shri Mujumdar, learned
Assistant Government Pleader for respondent No.1-State of
Maharashtra and Shri Mishra, learned counsel for Respondent No.2
Nagpur Municipal Corporation.
18. The learned counsel for the petitioner assailed the order
passed by the Principal Secretary to the Government of Maharashtra
on 25.02.2005 on the ground that he had no jurisdiction to hear the
appeal. For this purpose he relied on notification bearing
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No.TPS/295/505/CR-95/UD/12 dated 6 August, 2001 a copy whereof
has been appended by the petitioner to Civil Application No.2231 of
2006 for amendment of the petition. By this notification issued in
exercise of powers conferred upon the Government under Sub-Section
(1) of Section 151 of the MRTP Act, and in supersession of earlier
orders, the Government of Maharashtra directed that the Chief
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Minister or Minister for Urban Development shall hear and decide all
appeals filed under Section 47 of the MRTP Act arising from
jurisdictions of the Municipal Corporations of the State and Special
Town Planning Authorities appointed under Section 40 of the Act,
excluding Vasai and Virar. The Minister of State for Urban
Development was empowered to decide all the appeals under Section
47 arising from the jurisdiction of A-Class Municipal Councils and also
appeals under Section 93 and 124(C) of the MRTP Act. The Principal
Secretary was empowered to decide all the appeals pertaining to Vasai
and Virar Sub-Division of Thane District under Section 47 of the Act.
The Director of Town Planning was empowered to continue to hear and
decide appeals under Section 47 of the Act pertaining to B and C Class
Municipal Councils, and all non-municipal Towns and Nagar
Panchayats. Clause (2) of the notification which is assailed by the
learned counsel for the petitioner reads as under :
“(02) The aforementioned distribution of powers
may be varied in particular cases depending upon their
complexity and other relevant factors. Similarly, the
Hon'ble Chief Minister/ Minister for Urban Development
may further re-delegate the powers for hearing and
taking decision to the Minister of State for Urban
Development or the Principal Secretary-I to
Government of Maharashtra, Urban Development
Department.”
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19. The learned counsel for the petitioner submitted that Section
151 of the MRTP Act, under which this notification is issued, would
enable the Government to delegate its powers to any authority. The
notification delegates powers to the Chief Minister or the Minister for
Urban Development in respect of areas within Nagpur city, and then
goes on to permit the Chief Minister or the Minister concerned to re-
delegate powers to Minister of State or the Principal Secretary. The
learned counsel submitted that such re-delegation is impermissible
because the section does not provide for such re-delegation.
20. The learned Assistant Government Pleader first submitted
that this argument is not open to the petitioner who filed an appeal
before the Principal Secretary. Copy of Memo of Appeal preferred by
the petitioner (Annexure P to the petition) would show that it was
addressed to the Principal Secretary as well. As rightly pointed out by
the learned A.G.P. it is not that the petitioner had submitted to the
jurisdiction of the Principal Secretary on being dragged before the
Principal Secretary by adversaries. The petitioner had himself invoked
that jurisdiction. Therefore, if the petitioner went to a wrong forum,
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which had no jurisdiction, knowingly with a hope of getting relief in his
favour, he cannot assail the order as nullity because the forum has
decided against him. Further, if the petitioner did feel that the
Principal Secretary lacked jurisdiction and therefore, order of the
Principal Secretary would be nullity, the petitioner could have raised
such contention before the Principal Secretary himself and could have
sought to have the matter placed before the competent authority.
Not having done so and having deliberately spent time before what,
according to the petitioner, was a forum without jurisdiction, the
petitioner cannot now take advantage of his own so called lapse to
further postpone the consequences of notice under Section 53 of the
MRTP Act. The learned A.G.P. stated that the Principal Secretary did
have jurisdiction and had rightly decided the petitioner's appeal.
21. The contentions of the learned counsel for the petitioner that
parties cannot clothe jurisdiction on an authority lacking jurisdiction
by consent is unexceptionable. However, if that was so, just as the
petitioner claimed to have ignored the directions given by the
Municipal Corporation on 04.04.1997 on the plans submitted by him on
21.09.1995, because he believed that corporation lacked jurisdiction to
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do so, he could have as well ignored the appellate order and avoided
rushing to this Court. The whole conduct of the petitioner smacks of
attempting to perpetrate the illegalities committed by him. Even so,
since the point has been raised, I would consider the question as to
whether the Principal Secretary indeed lacked the jurisdiction or not.
22. The learned counsel for the petitioner relied on judgment of
the Supreme Court in Sahni Silk Mills (P) Ltd., Vs. E.S.I. Corpn. ,
reported at (1994) 5 SCC 346 relating to the provisions of Section
94-A of the Employees State Insurance Act. A Regional Director issued
notice under Section 85-B of the Act and imposed damages on the
defaulting parties. The order was challenged before the E.S.I. Court
and the High Court, which repelled the challenge. It was urged before
the Supreme Court that powers under Section 85-B can be exercised
only by the Corporation. Section 94-A permitted the delegation of
powers of the Corporation. By notification dated 28.02.1976. The
powers of the Corporation were made exercisable by the Director
General or any other officer authorised by him. This part of the
notification, which enabled the Director General to authorise any other
officer to exercise powers, was under challenge. In this context,
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following observations of the Supreme Court may be usefully
reproduced :
“5. The courts are normally rigorous in
requiring the power to be exercised by the persons or
the bodies authorised by the statutes. It is essential
that the delegated power should be exercised by the
authority upon whom it is conferred and by no one else.
At the same time, in the present administrative set-up
extreme judicial aversion to delegation cannot be
carried to an extreme. A public authority is at liberty to
employ agents to exercise its powers. That is why in
many statutes, delegation is authorised either
expressly or impliedly. Due to the enormous rise in the
nature of the activities to be handled by statutory
authorities, the maxim delegatus non potest delegare
is not being applied specially when there is question of
exercise of administrative discretionary power.
12. It has to be borne in mind that the exercise of the
power under Section 85-B (1) is quasi-judicial in nature,
because there is always a scope for controversy and
dispute and that is why the section itself requires that
before recovering any such damages, a reasonable
opportunity of being heard shall be given to the
employer. The employer is entitled to raise any
objection consistent with the provisions of the Act.
Those objections have to be considered. After
consideration of objections, if any, an order for
recovery of damages has to be passed. The maxim
delegatus non potest delegare was originally invoked in
the context of delegation of judicial powers saying that
in the entire process of adjudication a judge must act
personally except insofar as he is expressly absolved
from his duty by a statute. The basic principle behind
the aforesaid maxim is that “a discretion conferred by
statute is prima facie intended to be exercised by the
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authority on which the statute has conferred it and by
no other authority, but this intention may be negatived
by any contrary indications found in the language,
scope or object of the statute”.
Since in that case, subsequently, by notification dated
19.02.1983, the Corporation resolved that the powers under Section
85-B of the E.S.I. Act could be exercised even by the Regional Director
and other officers, the dispute did not survive. The Court, however,
held that the Director General could not have delegated his powers to
the other officers.
23. There can be no doubt that if the statute does not permit re-
delegation, the authority to which the power is delegated in the first
place would not be permitted to re-delegate the same to a subordinate
authority. Therefore, in this case, it would have to be found out
whether there is infact a re-delegation by the Chief Minister or
Minister. The learned Assistant Government Pleader contended that
Section 47 of the MRTP Act itself provides that appeal may be made to
the State Government or an officer appointed by the State
Government in this behalf, not below the rank of Deputy Secretary.
Thus, the section itself provides that an appeal is competent to the
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State Government, or to an officer appointed by the State
Government. Clause (i) of Section 151 of the MRTP Act enables the
State Government by notification in the official gazette to delegate any
powers exercisable by it i.e. the State Government, under the Act or
Rules to any officer appointed by the State Government. Thus, the
notification dated 06.08.2001 issued under Section 151 of the Act
would refer to the delegation of powers exercisable by the Government
under Section 47, since the section itself provides for appeals being
entertained without any delegation of powers not only by the State
Government, but also by officers above the rank of Deputy Secretary.
The learned A.G.P. submitted that paragraph (2) of the notification
may be read as assignment of business of hearing appeals by the Chief
Minister or Minister to an officer who already had such power in terms
of Section 47. Therefore, according to him mere use of word “re-
delegation” in said paragraph 2 of the notification dated 06.08.2001 in
itself need not turn such allocation into actual re-delegation.
24. The learned A.G.P. further submitted that rules of business
framed under Article 166(3) of the Constitution of India do not relate to
delegation of powers but only define, under the rules of business, as to
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who is to be the “State Government” for a particular purpose. The
rules provide for powers to be exercised by the minister. No
delegation of powers is involved in this since the rules of business only
define as to what is Government in relation to the particular business
of the Government. In any case delegation, if any, in respect of
powers of the Government, would not affect the power of an officer not
below the rank of Deputy Secretary, who too, under Section 47, may
be competent to hear an appeal. Though phraseology of notification
th
dated 6 August, 2001 is not exactly ideal and it does use the word re-
delegation by the Chief Minister or Minister for Urban Development,
the learned A.G.P. submitted that since Section 47 itself provides for
hearing of appeals by the State Government as well as officers above
the rank of Deputy Secretary, there is no question of delegation of
powers and only the question of allocation of business of hearing
appeals arising from various categories of local bodies has been
covered by the notification under Section 151 of the MRTP Act issued
th
on 6 August, 2001. According to the learned A.G.P. it would be
appropriate to make the notification workable rather than strike it
down as violative of maxim delegatus non potest delegare . He
submitted that in Sahni Silk Mills's case, on which the learned counsel
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for the petitioner placed reliance, the Supreme Court had observed in
paragraph 5 that in the present administrative setup extreme judicial
aversion to the delegation cannot be carried to an extreme. The
learned A.G.P. submitted that this is not a case of inherent lack of
jurisdiction and since the petitioner himself had taken appeal to the
Principal Secretary the decision in appeal may not be ignored as nullity
on this count.
25. Ordinarily when a new enactment comes into force, all the
notifications required to be issued are not simultaneously notified.
Subordinate legislation takes its own time. In several enactments,
several questions would be required to be decided by the Government.
The learned A.G.P. therefore, submitted that in absence of any
notification the question as to what is State Government in the
particular context would always have to be decided with reference to
the rules of business framed under Clause (3) of Article 166 of the
Constitution. He submitted that whenever appeals are statutorily
required to be decided by Government, it would be the business of the
Government to hear appeals and therefore, such hearing of appeals
will be covered by Rules of Business till any other provision is made.
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26. The learned counsel for petitioner countered by placing
reliance on the decision in Sheikh mohamed Fatemohamed Vs.
Raisuddin Azimuddin Katil , reported at 2000(3) ALL MR 546 , pointing
out that the Full Bench of this Court was considering the question of
delegation of powers of the Government under Hyderabad Abolition of
Inams and Cash Grants Act (1954). Section 2 A(2) of the said Act
provides for appeal to the State Government against the orders of
authorised officer. There is no reference to the power of the State
Government to delegate its authority to any other officer of the State
Government. However, the Government routinely delegated the
powers to hear the appeal under Section 2-A(2) of the said Hyderabad
Act to an Officer on Special Duty. The Full Bench considered the
question of rules for conduct of business of the Government framed
under Clause (3) of Article 166 of the Constitution of India and held
that resort could not be had to the rules of business framed under
Article 166(3). In view of this the learned counsel for the petitioner
submitted that the delegation to the Principal Secretary of powers to
hear the appeal was totally impermissible and hence, the decision
rendered by the Principal Secretary being without jurisdiction, was a
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nullity.
27. The contention of the learned counsel for the petitioner that
the Full Bench of this Court in Sheikh Mohammed Vs. Raisuddin ruled
that whenever power to hear appeal against statutory order is not
delegated by the statute itself, the Government cannot regulate
powers through rules of business under Article 166 of the Constitution,
needs to be examined. It may be seen that reference to Full Bench
was occasioned because in G.K.Deshmukh Vs. Devisingh , reported at
AIR 1972 Bombay 369 , a Division Bench of this Court took the view
that when a function of making a quasi-judicial decision like the one
under Section 2-A of Hyderabad Abolition of Inams and Cash Grants
Act is before the Court, looking to the scheme of the statute it cannot
be delegated to another person or authority in the absence of statutory
provision authorising such delegation. Another Division Bench deciding
Maruti Pandu Vs. Babu Narayan , reported at 1983 MH LR Bom 148
while considering the provisions of Section 2-A of the same Act, held
that Officer on Special Duty could be conferred with authority to hear
an appeal required to be decided by the State Government under
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notification which springs from Article 166 of the Constitution read with
Rules of business of the Government.
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28. Confronted with these conflicting judgments a 3 Division
Bench hearing Sheikh Mohammed Vs. Raisuddin referred the matter
for consideration by the Full Bench. This is how the Full Bench came to
consider the question as to which of the two earlier decisions laid down
the correct law. The Full Bench upheld the decision in Ganeshrao's
case reported at AIR 1972 Bom.369, overruling the decision reported
at 1983 MH LR Bom.148 . While so doing the Full Bench observed in
paragraphs 12 to 14 of its judgment as under :
“12. It is quite clear that what is meant by sub-
article (3) is the convenient transaction of business of
the Government and allocation amongst different
Ministers of this business, so as to make the running of
the Government smooth. It is difficult to visualize the
situation under this sub-article. Whether the concept
of an appeal, arising out of a quasi judicial power can
be termed as a business of the Government.
13. So far as the said Act is concerned, there
would not have been any question of there being any
appeal in respect of inams tenure determining
respective rights of the landlord and / or tenant of the
occupant. This being entirely the field of the Statute,
specially enacted for the purpose and right of appeal
also having been given by it, in our opinion, it cannot
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26
be regulated by general power of rule making as
provided under Article 166 of the Constitution of India,
more so, when the Article 166, in our opinion, does not
deal with the business of the nature of deciding quasi
judicial dispute and appeals arising thereunder.
14. The quasi judicial functions, thus, in our
opinion would be out of the purview of this Article,
much less than would not be covered by the Rules of
business under Rule 15, as sought to be done, as noted
in the decision of Maruti Pandu's case(cited supra).”
29. The question before the Full Bench was one of the power of
the State Government to routinely delegate, to an officer on special
duty, its power under Clause (2) of Section 2-A of the Hyderabad Act.
The causation by which the Full Bench reached the conclusion may not
be exactly helpful in the present case, because in the instant case
Section 47 of the MRTP Act expressly provides for appeals being not
only heard by the State Government, but also by an officer above the
rank of Deputy Secretary, as contrasted with Clause 2 of Section 2-A
of the Hyderabad Act where there was no express provision for
decision by any other authority. The Full Bench had not held that an
appeal arising out of quasi judicial power could not be termed as
business of the Government, though the Bench found it difficult to so
visualise. Sometimes, even if one finds some things difficult, they have
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27
to be done.
30. The question of amenability of exercise of quasi-judicial
functions to the rule making power under Article 166(3) of the
Constitution was considered by the Supreme Court in G. Nageswara
Rao Vs. A.P.S.R.T.Corpn. , reported at AIR 1959 SC 308 while
considering the provisions of Motor Vehicle's Act, 1939. Majority of the
Supreme Court headed by the Chief Justice held that Section 68-D of
Motor Vehicles Act imposes duty on the State Government to decide
judicially in approving or modifying the scheme proposed by the
transport undertaking. (Minority comprising of Wanchoo and Sinha JJ
held that while doing so the State Government was not discharging
any judicial or quasi-judicial function and that it was discharging only
nominal administrative function). In that context hearing given by the
Secretary incharge of the Transport Department was being questioned.
The majority of the Supreme Court had therefore, to consider whether
the powers to perform this quasi judicial function could be dealt with
by Rules made by the Governor for transaction of business. In this
context it was argued that the Rules which the Governor is authorised
to make are only to regulate the acts of the Governor or his
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28
subordinates in discharge of the executive power of the State
Government and therefore, will not govern the quasi-judicial functions
entrusted to it. In paragraph 28 of the judgment the majority of the
Court clearly repelled this argument by observing as under :
“There is a fallacy in this argument. The
concept of a quasi-judicial act implies that the act is
not wholly judicial; it describes only a duty cast on the
executive body or authority to conform to norms of
judicial procedure in performing some acts in exercise
of its executive power. The procedural rules made by
the Governor for the convenient transaction of business
of the State Government apply also to quasi-judicial
acts, provided those Rules conform to the principles of
judicial procedure. ”
31. In view of this categorical finding of the Supreme Court way
back in the year 1959, it may not be permissible to follow the
difficulties expressed by the Full Bench of this Court in visualising
whether an appeal to be decided in exercise of quasi judicial powers
was amenable to the rule making power of the Governor under Article
166 of the Constitution. Had this judgment of the Supreme Court
been noticed by the Full Bench, it would have surely conformed to the
view of the Supreme Court and would not have expressed any
difficulty. Any different view is not shown to have been taken by the
Apex Court so far.
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29
32. Apart from this in A. Sanjeevi Vs. State of Madras , reported at
AIR 1970 SC 1102 the question of allocation of business of
Government had come up before a six Judge bench of the Supreme
Court. Paragraph 4 of the judgment shows that in that case the
question was as to who is to form the opinion requisite under Section
68-C of the Motor Vehicles Act. It was urged that the requisite opinion
could have been formed either by the council of ministers or the
minister to whom the business had been allocated, but not by the
Secretary. After considering the submissions advanced, in paragraph
11 of the judgment the Court observed as under :
“11. We think that the above submissions
advanced on behalf of the appellants are without force
and are based on a misconception of the principles
underlying our Constitution. Under our Constitution,
the Governor is essentially a constitutional head, the
administration of State is run by the Council of
Ministers. but in the very nature of things, it is
impossible for the Council of Ministers to deal with each
and every matter that comes before the Government.
In order to obviate that difficulty the Constitution has
authorised the Governor under sub-article (3) of Article
166 to make rules for the more convenient transaction
of business of the Government of the State and for the
allocation amongst its Minister, the business of the
Government. All matters excepting those in which
Governor is required to act in his discretion have to be
allocated to one or the other of the Ministers on the
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30
advice of the Chief Minister. Apart from allocating
business among the Ministers, the Governor can also
make rules on the advice of his Council of Ministers for
more convenient transaction of business. He can, not
only allocate the various subjects amongst the
Ministers but may go further and designate a particular
official to discharge any particular function. But this
again he can do only on the advice of the Council of
Ministers.”
This judgment should set of rest any doubts as to what is
“Government” in the context of exercise of statutory powers, including
quasi judicial powers.
33. In the light of foregoing discussion the position that would
emerge is as under :
(a) Rules of business framed under Clause (3) of Article 166 of
the Constitution could also cover business of hearing statutory
appeals.
(b) “Government” for this purpose is not just Council of Ministers
but even officers of the Government, as may be authorised under
such rules.
(c) Under the Rules of business of Maharashtra Government,
Minister in charge of the Urban Development Department is “the
Government” for the purpose of exercising powers under Section 47 of
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31
the MRTP Act.
(d) Notification dated 06.08.2001 under Section 151 of the MRTP
Act must be taken to merely reiterate this position and cannot be held
to delegate to the Minister, the powers which he already possesses.
(e) Since power to hear appeal already vested in the Minister by
virtue of Rules of business, his delegating the same to the Principal
Secretary would not amount to re-delegation, not withstanding the use
of word re-delegation in para 2 in the notification dated 06.08.2001.
(f) In any case since Section 47 itself independently conferred
power to hear appeals on officers 'appointed' by the State Government
to hear such appeals, “delegation” of powers to such officers was not
at all contemplated. The State Government was to merely “appoint”
officers to hear appeals.
(g) Consequently there was no warrant to invoke the power to
delegate under Section 151 of the MRTP Act and such delegatory
exercise is redundant. The notification has to be read as one merely
allocating appeals arising from various local bodies to various
authorities.
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32
(h) In view of this, it cannot be said that Principal Secretary
lacked the authority to decide appeal.
(i) In any case, the petitioner having himself approached the
Principal Secretary and not having ever demurred about lack of
jurisdiction, it is not open to the petitioner to indulge in this dilatory
trick of pointing out that he was before the wrong forum to suggest
that he may now be allowed to spend more time with the right forum.
34. Apart from this, it may be seen that the petitioner has also
challenged the notice issued on 26.08.2004 and the order passed by
respondent No.2 Nagpur Municipal Corporation on 22.11.2004 (which
he had challenged before respondent No.1). Therefore, it would be
necessary to examine correctness of these actions of respondent No.2,
which would cover the question whether the Principal Secretary had
erred while deciding the appeal.
35. The learned counsel for the petitioner submitted that when
the plan was sanctioned on 17.02.1992 bye laws dated 24.06.1965
were in force and these bye laws did not refer the concept of Floor
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33
Space Index (F.S.I.) and therefore, consideration of petitioner's plans
with reference to F.S.I. was improper. He further submitted that after
having sanctioned the plan on 17.02.1992 which included a basement
without any user being specified, as also plan for seventh floor, it was
impermissible for the Municipal Corporation to specify the purpose for
th
use of basement or to reduce the height and disallow 7 floor, while
considering the plan submitted on 21.09.1995.
36. Both these contentions were stoutly opposed by the learned
counsel for respondent No.2 Municipal Corporation. He submitted that
the provisions of MRTP Act apply to all developmental activities in city
of Nagpur in respect of which a Development Plan has been sanctioned
in the year 1976 itself. Referring to the provisions of Section 46 of the
MRTP Act, the learned counsel submitted that in considering the
applications for permission, the Planning Authority must have due
regard to the provisions of draft or final plans or proposals published
under the Act. He submitted that the concept of F.S.I. was already
existed in the Development Control Rules under the MRTP Act, though
it may not have been there in very specific terms in 1965 bye laws.
These, Development Control Rules have been eventually notified on
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34
09.04.2001.
37. The learned counsel for respondent No.2 Municipal
Corporation further submitted that any building permit is valid only for
a period of two years from the date of its sanction under the bye laws.
Therefore, permit dated 17.02.1992 on which the petitioner relies
expired on 17.02.1994. The petitioner does not state that any
extension was ever sought. Therefore, according to the learned
counsel for Respondent No.2, the plan sanctioned on 17.02.1992 had
also lapsed just as earlier plan dated 26.07.1991 had lapsed and was
consequently of no use. He submitted that the plan dated 21.09.1995
submitted by the petitioner was sanctioned by the Municipal
Corporation on 04.04.1997 with some modifications. Therefore,
construction ought to conform to this sanction with modifications. The
learned counsel for the petitioner has not been able to explain as to
how he could claim to have proceeded with construction of seventh
floor which was disallowed, or change the user of basement when, by
sanction dated 04.04.1997, the Municipal Corporation has specifically
earmarked the basement for parking. The contention of the learned
counsel for petitioner contented that the petitioner was entitled to
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35
ignore sanction dated 04.04.1997 because it was without any authority
of law, is atrocious. The learned counsel for petitioner has not been
able to explain as to how sanction dated 04.04.1997 lacked the
authority of law. Therefore, as rightly submitted that the construction
in question being in violation of the sanctioned plan was liable to be
removed as conveyed to the petitioner by notice under Section 53 of
the MRTP Act.
38. The learned counsel for the petitioner next submitted that
actual area of construction was not calculated properly by the
Municipal Authorities as also by the appellate Authority. He pointed
out the discrepancies in this behalf, particularly in respect of the area
calculation of third floor. He submitted that passages and balconies
were required to be excluded under sub-clause (42) of Clause 1 of
Building Bye laws of 1965. He pointed out that even Clause 15.4.2 of
the bye laws which became applicable from 01.01.1993 excluded the
balconies. The learned counsel for respondent No.2 submitted that the
area of third floor was rightly calculated by the Corporation and that an
area could not be excluded only because walls had not yet been
constructed to enclose that disputed area. The learned counsel for
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36
respondent No.2 further submitted that the bye laws may exclude
balconies, but not passages, and it is not shown as to what is the exact
area of passages or balconies which is sought to be deducted by the
petitioner. He submitted that the competent authorities in the
Municipal Corporation have correctly calculated the floor area with
reference to the land purchased by the petitioner and have found that
the construction exceeds permissible limits. It would not be possible
for this Court to go into this disputed questions of fact relating to
computation of actual floor area.
39. The learned counsel for the petitioner had stated that the
F.S.I. available is infact more than that what is consumed, and, for a
moment, sought to suggest that the F.S.I. available would make it
possible even for intervenor Bapuna to construct on 63000 sq.ft. land
purchased by Bapuna, though he soon withdrew this contention, and
declared that Bapuna had purchased open land with open eyes
knowing that there was no prospect of developing the land purchased.
It is ridiculous to suggest that a person would purchase property worth
over Rs.3,93,00,000/- without any prospect of laying even a stone
thereon. Thus admittedly the petitioner's structure is not within the
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37
limits of F.S.I. available to the area of plot which remained with him
after sale of 63000 sq.ft. of site to Bapuna.
40. The learned counsel for the petitioner assailed notice issued
by Nagpur Municipal Corporation under Section 53 of the MRTP Act on
the ground that Section 53 of the Act has no application at all. He
submitted that for initiating action under Section 53 it is necessary
that the development of the land should have been carried out as
indicated in Section 52 of the MRTP Act. For attracting provisions of
Section 52, according to the learned counsel, it is necessary to show
that the development has been carried out without permission
required under the Act. According to the learned counsel since Nagpur
Municipal Corporation was not at all the “Planning Authority” at the
relevant time in respect of the area in question, there was no question
of obtaining permission of Nagpur Municipal Corporation under MRTP
Act. Consequently there is no violation of Section 52, and no occasion
for the corporation to act under Section 53 of the MRTP Act.
41. For this purpose the learned counsel for the petitioner took
me to the definitions of the Planning Authority and Local Authority in
Clauses 19 and 15 of Section 2 of the MRTP Act, which read as under :
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38
“[(19) “Planning Authority” means a local authority;
and includes, -
(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed under
section 40;
(b) in respect of the slum rehabilitation area
declared under section 3C of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment)
Act, 1971, the Slum Rehabilitation Authority appointed
under Section 3A of the said Act;]
Clause 15 of the same Section defines 'Local Authority'
as under :
“(15) “local authority” means -
(a) the Bombay Municipal Corporation constituted
under the Bombay Municipal Corporation Act or the
Nagpur Municipal Corporation constituted under the
City of Nagpur Municipal Corporation Act, 1948, or any
Municipal Corporation constituted under the Bombay
Provincial Municipal Corporation Act, 1949.
[(b) a Council and a Nagar Panchayat constituted
under the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965,]
(c) (i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishad and Panchayat Samitis Act,
1961,
(ii) the Authority constituted under the Maharashtra
Housing and Area Development Act, 1976],
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39
(iii) the Nagpur Improvement Trust constituted under
the Nagpur Improvement Trust Act, 1936,];
which is permitted by the State Government for any
area under its jurisdiction to exercise the powers of a
Planning Authority under this Act ;”
42. There is no doubt that the Planning Authority means a Local
Authority, and Local Authority means Nagpur Municipal Corporation as
well. The learned counsel however, submitted that Nagpur Municipal
Corporation would not be a Local Authority for the entire area within
the jurisdiction of the Corporation, and in view of the last part of
Clause (15) of Section 2 it would be a Local Authority only for the area
which is permitted by the State Government for any area in its
jurisdiction to exercise powers of the Planning Authority under this Act.
The learned counsel would like me to read clause 15 of Section 2 of
MRTP Act, as under :
“Local Authority” means :
(a)..................Nagpur Municipal Corporation...., (Comma)
(b)................................, (Comma)
(c) (i) .........................., (Comma)
(ii) .........................., (Comma)
(iii) .........................., (Comma)
which is permitted by the State Government for any area under its
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40
jurisdiction to exercise powers of the Planning Authority under this
Act ; (semi colon).
43. According to him the expression “which is permitted by the
State Government for any area under its jurisdiction to exercise
powers of the planning authority under this Act” is applicable to all the
three sub-clauses (a), (b) and (c) of Clause 15. Fortunately Clause 15
as it originally appeared in the text of the act published at Page 142
th
in Part-IV of Maharashtra Government Gazette, dated 29 December,
1966 is available. This clause in the gazette notification reads as
under :
“(15) “local authority” means -
(a) the Bombay municipal Corporation constituted
under the Bombay Municipal Corporation Act, or the
Nagpur Municipal Corporation constituted under the
City of Nagpur Municipal Corporation Act, 1948, or any
municipal corporation constituted under the Bombay
Provincial Municipal Corporations Act, 1949,
(Comma)
(b) A Municipal Council constituted under the
Maharashtra Municialities and Panchayat Samitis Act,
1965 ; (Semi colon)
(c)(i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961, (Comma)
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41
(ii) the Nagpur Improvement Trust constituted under
the Nagpur Improvement Trust Act, 1936,
(Comma)
which is permitted by the State Government for any
area under its jurisdiction to exercise the powers of a
Planning Authority under this Act ;” ( Semi Colon)
44. It may be seen that after Clause (a) there is comma whereas
after clause (b) there is semi colon indicating that clauses (a) and (b)
are in one group. Then thereafter follows clause (c) which initially had
two sub-clauses (i) and (ii) which culminate in commas, and which is
followed by expression, 'which is permitted by the State Government'
etc., ending with a semi colon. The semi colon after clause (b) is not
shown to have been replaced by a comma by any amending Act.
45. It may also seen that appendage “which is permitted by the
State Government...... etc.” obviously applies only to Clause (c) and
not to clauses (a) and (b), because it would be ridiculous to say that a
Municipal Corporation or a Council is not a local authority for areas
within its jurisdiction. It is also equally clear that Zilla Parishad or
Nagpur Improvement Trust, not being local authorities, would have to
be deemed to be the local authorities only for areas over which the
State Government permitted such bodies to exercise powers of the
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42
Planning Authority. In respect of Zilla Parishads, who have jurisdiction
over the entire district area would have to be specified since it is not
intended to cover development of entire rural area by the “Town”
Planning Act. Unlike other local authorities the Nagpur Improvement
Trust was specifically created to look after improvement of the City of
Nagpur. Therefore, its jurisdiction coincided, or in a large measure
overlapped with that of Nagpur Municipal Corporation. Therefore, while
permitting Nagpur Improvement Trust to exercise powers of the
Planning Authority and therefore making the Trust local authority
under Clause 15 of Section 2 of the MRTP Act, its jurisdiction had to be
defined. This is the genesis of the last lines of sub clause (c) of Clause
15 of Section 2. Jurisdiction of Nagpur Municipal Corporation may have
been pro-tanto excluded to avoid duality of control or conflict of
authority. It does not follow that the Nagpur Municipal Corporation as
local authority was not Planning Authority under Clause 19 of Section 2
of MRTP Act.
46. The learned counsel for the petitioner had relied on the
notification published in Part-I-A of Maharashtra Government Gazette
th
dated 11 March, 2002 to contend that the Nagpur Municipal
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43
Corporation got jurisdiction only from 27.02.2002. This contention is
fallacious and has to be rejected because notification dated
27.02.2002 itself makes it abundantly clear that the earlier notification
th
dated 6 October, 1967 had conferred powers of Planning Authority on
the Nagpur Improvement Trust for the area specified. Notification
th
dated 27 February, 2002 withdrew the earlier notification and
restricted the role of Nagpur Improvement Trust as the Planning
Authority only over about 7208.75 hectares of the area specified in the
said notification.
47. If according to the petitioner Nagpur Municipal Corporation
was not the Planning Authority under MRTP Act and that the Nagpur
Improvement Trust was Planning Authority for the entire city, he
should have shown that he had approached the Nagpur Improvement
Trust and had obtained requisite sanction from the Trust. It is
distressing to note that the petitioner has been extremely
unscrupulous in his approach and wants to totally evade all control by
any authority for the construction activities undertaken by him. For
assailing action of the Municipal Corporation under Section 53 of the
Act he states that the Trust and not Corporation was the Planning
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44
authority, but does not approach the trust for obtaining permission for
construction. He approaches the Corporation for permission to
construct, but deviates from the modifications made by the
Corporation in his proposed plan. While executing sale deeds in favour
of the intervenors in Civil Application No.2236/2006 he produces No
Objection Certificate from the Nagpur Improvement Trust, concealing
from the Sub-Registrar the fact that Trust was not the competent
authority and that his construction had not been approved by Nagpur
Municipal Corporation, which was competent authority to whom he had
applied.
48. The learned counsel for the petitioner next submitted that the
petitioner had submitted revised plans after the notice dated
26.08.2004 was received by him. These plans submitted on
28.10.2004 was rejected outright by the Corporation on 22.11.2004.
According to the learned counsel the plans were required to be
considered afresh if the Corporation is to contend that the provisions of
Clause (3) of Section 53 applied. Under Clause (3) of Section 53 of the
MRTP Act person aggrieved by the notice is entitled within the period
specified in the notice, to apply for permission under Section 44 for
retention of the land or any building or work, to which the notice
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45
relates, and pending final determination or withdrawal of the
application, the mere notice in itself, does not affect retention of the
building of works or the continuance of such use. The learned counsel
for respondent No.2 Municipal Corporation submitted that the revised
plans were duly considered in light of rules applicable and were
rejected as they violated the rules, and that there is no force in the
contention that the revised plans were not considered by the
Corporation. The letter dated 22.11.04 whereby Corporation rejected
the petitioner's revised plan which is at Annexure “O” to the petition,
spells out six objections to the plan while rejecting the plans. The
learned counsel for the petitioner was unable to show as to how these
plans were wrongly rejected or how they conformed to rules.
49. The learned counsel for one of the intervenors had drawn my
attention to two decisions of the Supreme Court which strongly
deprecated the practice of condonation of unauthorised construction.
In M.I. Builders Pvt. Ltd Vs. Radhey Shyam Sahu , reported in (1999) 6
SCC 464, the Court was considering amongst other things
unauthorised construction by a builder who was permitted to construct
underground Shopping Complex in a park. In paragraph 73 of the
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46
judgment the Court observed that no consideration should be shown to
a builder or any other person where construction is unauthorised and
that this dictum is now almost bordering the rule of law. The Court
held that though allottees to the shop wanted use of judicial discretion
in moulding the relief, the discretion should not be exercised for
perpetuating illegality. The Court observed that unauthorised
construction which cannot be compounded has to be demolished and
that judicial discretion cannot be guided by expediency. The Court
added that while directing demolition of unauthorised construction, an
inquiry as to how construction came about should be ordered and
offenders should also be booked.
50. In Friends Colony Development Committee Vs. State of
Orissa , reported at 2004 (8) SCC 733 the Supreme Court has held
that deliberate deviations should not be condoned or compounded. In
that case too the builder had added additional fifth floor which was
totally unauthorised. In spite of the disputes and litigations, the
builder had parted with his interest and inducted occupants on all the
floors including the additional floor. The Court further held that the
deviations which deserve to be condoned must be bona fide or
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47
attributable to some misunderstanding or are such deviations where
the benefit gained by demolition would be far less than the
disadvantage suffered. The Court had observed that deliberate
deviations with the intention of gaining profit deserve to be dealt with
sternly so as to act as a deterrent in future.
51. In Mahendra Baburao Mahadik Vs. Subhash Krishna Kanitkar ,
reported at (2005) 4 SCC 99 , the Supreme Court had considered the
decisions in Friends Colony Development Committee Vs. State of
Orissa as also M.I. Builders (P) Ltd. Vs. Radhey Shyam Sahu and had
quoted, by way of reiteration, the principles enunciated in paragraph
25 of the judgment in Friends Colony's case and paragraph 73 of the
M.I. Builder's case.
52. As the foregoing discussion would show the petitioner builder
had indulged in deliberate deviations bordering on fraud, which do not
deserve to be compounded or condoned, as observed by the Supreme
Court in the Friends Colony's case. In that case too the Court has also
observed that officers conniving at such deviations should not be
spared.
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48
53. To sum up :
(a) The petitioner is not entitled to rely on the plan sanctioned
on 17.02.1992 since he had not completed construction within the
stipulated period and had not sought any extension of time for
completing construction as per this plan.
(b) The petitioner submitted a revised plan on 21.09.1995 i.e.
about 3-1/2 years after the second plan was sanctioned on 17.02.1992,
but did not adhere to the condition on which the approval was granted
on 04.04.1997 and raised unauthorised seventh floor and also changed
the user of basement.
(c) After having exhausted entire Floor Space Index (FSI)
available for the entire plot he had no compunction is selling chunk of
remaining open land for a valuable consideration of over Rs.
3,93,00,000/- and had the cheek to tell the Court that the purchaser
would not be able to construct on the land since the purchaser had
purchased the land with open eyes.
(d) Inspite of the stipulation on 04.04.1997 of the Municipal
Corporation that the basement be used for parking only and that
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49
seventh floor was not sanctioned, after 04.04.1997 the petitioner sold
to the intervenors who have filed C.A. No.2236/2006, some portion in
basement and top floor for commercial use for a valuable
consideration of about a crore of rupees.
(f) Though the petitioner had not obtained sanction for any of
his plans from Nagpur Improvement Trust, he obtained no objection
certificate from Nagpur Improvement Trust for getting sale deeds in
favour of the intervenors in Civil Application No.2236 of 2006
registered.
54. It is therefore, clear that the entire conduct of the petitioner
not only lacks bona fides, but borders on playing fraud. It is equally
unfortunate that the Municipal Authorities who were charged with duty
of regulating the construction activity, failed to diligently discharge
their duties. In view of the law laid down by the Apex Court in three
judgments, quoted above, there is no question of showing any
indulgence for such activities. There is no question of assisting the
petitioner who not just failed to come to the Court with clean hands but
rather dared to enter the Court red handed.
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50
55. Rights of intervenors are not required to be considered in this
petition since it would unnecessarily protract the litigation, obscure the
issue and enable the petitioner to perpetrate his illegalities and to go
ahead with disposal of his unauthorised construction to unsuspecting
buyers.
56. As I dismiss the petition as also the applications for
intervention by this order, it would be appropriate to also direct the
Municipal Commissioner to initiate an inquiry into the conduct of the
officers who were responsible for allowing the construction to be raised
to such level and had failed to examine whether the construction was
proceeding according to sanctioned plans.
57. The Municipal Commissioner, Nagpur Municipal Corporation,
Chairman of Nagpur Improvement Trust, and the State Government
may examine this one instance of flagrant violation of rules to devise
remedial measures in order to ensure that such instances do not recur
and unsuspecting buyers do not become victims of the activities of
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51
unscrupulous builders.
In the result, the petition as well as applications for
intervention are rejected.
Interim stay be continued for fifteen days after the copy of the
judgment becoming available.
JUDGE
RR.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3746 OF 2005.
Mr. N.K. Harchandani,
aged about 50 years, Occu.: Business,
th
R/o. 7 Floor, Poonam Plaza,
Palm Road, Civil Lines, Nagpur,
Tahsil & District : Nagpur(Maharashtra)
.. PETITIONER .
// VERSUS //
(1) The State of Maharashtra,
through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai – 32.
(2) Nagpur Municipal Corporation,
Nagpur, through its Commissioner,
Civil Lines, Nagpur.
.... RESPONDENTS.
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Shri M.G.Bhangde, Senior Counsel for Petitioner.
Shri A.G. Mujumdar, A.P.P. for Respondent/State.
Shri S.K. Mishra, Adv. for Respondent No.2.
Shri S.P.Dharmadhikari, Adv. for Intervenors.
Shri Sunil V. Manohar, Adv.for Intervenors.
----------------------------------------------------------------------------------------------
CORAM : R.C. CHAVAN, J.
DATED : APRIL 13, 2006.
ORAL JUDGMENT :
This petition and the applications for intervention expose
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how lack of precision in the legal regime governing developmental
activities in Nagpur city have enabled people without scruples to take
the system for a ride. The petition and the Civil Applications pose
some very pertinent questions. The petition is therefore, admitted
and taken up for hearing forthwith.
2. This judgment disposes of the writ petition, whereby the
petitioner has taken exception to the orders passed by Nagpur
Municipal Corporation and State of Maharashtra in respect of
petitioner's building plans, as also three applications for intervention.
3. Apart from Nagpur Municipal Corporation, the local authority,
Nagpur has an Improvement Trust as well, which regulates
development of the city of Nagpur. A well intentioned measure to have
an independent body, the Nagpur Improvement Trust, devoted to
development of city, led to duality of authority, and eventually absence
of any regulation, due to pretended confusion as to the authority which
was supposed to control such activity. The facts to be unfolded would
disclose as to how the petitioner took advantage of this divided control
in order to avoid all regulation while constructing his building.
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4. The petitioner became owner of parts of land bearing City
Survey No.2217/1 by two transactions. By each of these transactions
the petitioner acquired 5576.20 sq.mt. of land, as recorded by
mutation entry Nos. 770 and 771, dated 10.08.1990 in the property
card of the land (Annexure “Y” to the petition). On 26.07.1991 a plan
for construction over the land was sanctioned but was abandoned by
the petitioner. On 17.02.1992 the Nagpur Municipal Corporation
sanctioned another plan of construction over the land. This plan
included a basement, user whereof was not specified, ground floor,
first floor, service floor and six more floors. A third plan was submitted
by the petitioner to the Municipal Corporation on 21.09.1995 with
some changes over the 1992 plan. On 04.04.1997 the Corporation
approved this plan with modifications, rejecting the plan for entire
seventh floor, reducing the building height, and specifying the user of
basement for parking.
5. In 1997 and 1998 the petitioner executed sale deeds in favour
of the applicants in Civil Application No.2236 of 2006 for office blocks
in the basement and top floor i.e. seventh floor of the building. While
registering these sale deeds the parties had produced before the Sub-
Registrar a “No Objection Certificate” from the Nagpur Improvement
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Trust and not from Nagpur Municipal Corporation. The petitioner also
sold on 02.07.2001 to one Aspi Bapuna, applicant in Civil Application
No.4798 of 2005, 63025.25 sq.ft. open land by two transactions for
over Rs.3,93,00,000/-.
6. On 26.08.2004 respondent No.2, Nagpur Municipal
Corporation, issued a notice to the petitioner under Section 53 of the
MRTP Act (the Maharashtra Regional & Town Planning Act, 1966)
specifying several irregularities in the construction and stating that the
construction was not in accordance with the building permit. The
notice called upon the petitioner to demolish the structure mentioned
in the schedule and to stop unauthorised user. The seventh floor was
found to be unauthorised and the building was three meters over the
sanctioned height. Notice also specified that the shops were
constructed in the basement area meant for parking. The petitioner
submitted revised plans to the Nagpur Municipal Corporation on
28.10.2004 which were rejected by the Corporation on 22.11.2004.
7. The petitioner preferred an appeal under Section 47 of the
MRTP Act before the “Minister/ Secretary of State of Maharashtra.”
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After hearing the parties the appeal was dismissed on 25 February,
2005. Aggrieved thereby the petitioner has filed this petition seeking
to have the notice dated 26.08.2004 and the order dated 22.11.2004
passed by the Nagpur Municipal Corporation, as also the appellate
order passed by respondent No.1 State Government on 25.02.2005
quashed and set aside. The petitioner also sought interim relief of stay
of the impugned orders pending decision of the petition.
8. At this stage, it may be useful to recount the contentions of
the intervenors, whose applications for intervention are being disposed
of by this very judgment. Civil Application No. 4799/05 has been filed
by Shri Vijay Babhare, Municipal Corporator, and former Chairman of
Standing Committee of the Nagpur Municipal Corporation. Civil
Application Nos.2236/06 and 4798/05 are filed by purchasers of shops,
office blocks and open site from the petitioner. Before hearing of the
applications and the petition commenced, I had carefully gone through
the three applications for intervention and found that they were
meritless attempts to expand the scope of inquiry of the dispute in the
present writ petition. An application for intervention can be permitted
only if intervenor's participation is essential for deciding the lis before
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the Court. As the discussion to follow would show the obfuscatory
points sought to be raised by the intervenors would have obscured the
issues involved, which deserved to be discouraged. Even so, the
learned counsel for the intervenors were given opportunity to address
to show if their prima-facie meritless applications merited any
consideration.
9. Civil Application No.4799 of 2005 was filed by Shri Vijay
Babhare, former Chairman of the Standing Committee of Nagpur
Municipal Corporation. By this application he seeks to highlight his
role in the attempt of the Corporation to strictly enforce the building
Regulations in the instant case. He also contended that his
participation was necessary because the petition and also petitioner's
appeal under Section 47 MRTP Act contained allegations of malafides
against him which he was entitled to answer. When the question of
tenability of this application was considered, amusingly, the learned
counsel for the petitioner first stated that he would withdraw
allegations of malafides, but on second thought he withdrew the
concession.
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10. Since as the Chairman of the Standing Committee, at the
relevant time, or as city father, intervenor Shri Vijay Babhare did not
have power or authority to regulate petitioner's construction, merely
because some allegations of malafides are included in the petition, it
would not be necessary to enlarge the scope of present inquiry. As
already stated, such intervention would tend to obscure the principal
issues involved in the lis. As an influential city father, rather than
indulging in this forensic foray, the applicant could concentrate on
setting right affairs of the Corporation, to avoid recurrence of similar
defiance of building regulations. Had the Municipal Authorities taken
timely steps when the construction was going on, or when parts of the
structure were being sold or occupied, things would not have come to
this pass.
11. Civil Application No.2236 of 2006 is filed by purchasers of,
ironically, the very parts of the building which offend the plan
approved in the year 1997, and which is the subject matter of the
notice issued under Section 53. Applicants claim to have purchased the
shops in the basement and on seventh floor by various sale deeds in
the years 1997 and 1998 for over a crore of rupees. These sale deeds
recite that even undivided share of land was sold to the applicants.
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Therefore, they assailed the notice under Section 53 of the MRTP Act
on the ground that they are entitled to the notice, since they are
owners and occupiers of the structures, use whereof is sought to be
discontinued by the Corporation. The applicants state that Nagpur
Municipal Corporation Authorities have not only allowed mutations to
be carried out in their names, but also have taxed their structures,
and, in view of this, before their structures can be adversely affected
they were entitled to notice under Section 53 of the MRTP Act.
12. Sale deeds in favour of applicants in C.A. No.2236/06 were
executed in the years 1997 and 1998 after Nagpur Municipal
Corporation granted approval to the plan submitted by the petitioner
with modifications, which specifically ruled out construction of seventh
floor and use of basement for any other purpose than parking. Thus,
at the time of sale, the structures sold to intervenors were
unauthorised. It can not be disputed that a builder would not be in a
position to convey any structure without obtaining completion
certificate from the Municipal Corporation, as also that no person can
be permitted to occupy any structure without obtaining necessary
certificate from the Corporation. Therefore, sale deeds executed in
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defiance of these, requirements would not clothe the intervenors with
any rights, which their vendor himself did not possess. It was
necessary for the applicants to have checked up with the Municipal
Authorities whether plans for construction of the structures which they
were going to purchase were duly sanctioned or not.
13. In the discussion on the contention raised by the petitioner
which follows it may be seen that according to the petitioner Nagpur
Improvement Trust had nothing to do with the development of the site
in question. The petitioner had submitted all his plans to Nagpur
Municipal Corporation itself. Yet when the sale deeds were presented
to the Sub-Registrar for registration, a No Objection Certificate
obtained from Nagpur Improvement trust, which had nothing to do
with the matter, was proceeded. It is possible that the Sub-Registrar
would have had no occasion to know as to which of the areas are in
control of Nagpur Municipal Corporation or Nagpur Improvement Trust.
After the sale deeds the Municipal Authorities also blindly effected
mutations and taxed the premises. However, since the transaction
itself was inherently defective and fraudulent to the extent of pushing
N.I.T.'s certificate for getting documents registered, further mutations
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or taxation of the property does not clothe the intervenors with any
right. Since their occupation itself is unauthorised they cannot claim
that they too are entitled to protract the litigation by insisting upon
receiving a notice under Section 53 of MRTP Act. In any case, lapses
on the part of the employees of the Municipal Corporation cannot
result in negating the duty of the Corporation to properly regulate the
construction activities in the city. It would be useful for the city father,
who had sought to intervene in the petition, to ask the Corporation to
frame necessary Rules for effecting mutation and taxing the properties
only after ensuring that the property had come into existence with
necessary sanctions. The Municipal Authorities may have been taxing
unauthorised structures too, because the Municipality has to raise
resources to provide services. Therefore, such taxation may not
operate as estoppel. The Municipal Authorities can not be exempted
from taking action against such unauthorised structures merely
because they are taxed. Even so,to avoid any misunderstanding in
this behalf it would be useful for the Municipal Authorities to consider
this aspect and deal with it appropriately.
14. Though these intervenors claim to have purchased the
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properties in the years 1997 and 1998 and had got their properties
promptly mutated in the municipal records, curiously copy of property
register card filed by the petitioner at Annexure “Y” at pages 191 to
197 of the petition does not record any such sales in the years 1997 or
1998, through it mentions all mutations upto 2003. Deliberate
production of no objection certificate of Nagpur Improvement Trust,
which had nothing to do with the matter, concealing that the
structures in question had not been sanctioned by the Nagpur
Municipal Corporation and getting necessary mutations promptly
effected in the Corporation records, while neglecting to have similar
mutations in the City Survey record clearly shows the complicity of
intervenors in the fraudulent designs of petitioner. In view of this,
since the intervenors only seek to aid and abet the unauthorised
activity of the petitioner, the application does not deserve to be
considered.
15. Civil Application No.4798 of 2005 is filed by Bapunas, who
purchased 63025.25 sq.ft. of open land by two transactions dated
26.09.2000 and 02.07.2001 for consideration of over Rs.3,93,00,000/-.
Though initially the learned counsel for the petitioner attempted to
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submit that there was enough F.S.I. left to enable Bapunas to construct
on the site purchased by them, later he had no inhibition in
categorically stating that what was sold to Bapunas was the leftovers
in the land around 63000 sq.ft. and that no construction could be
raised on that land. This implies that Bapuna had purchased the land
for valuable consideration of Rs.3,93,00,000/- without any prospect of
receiving any return since no development could take place on that
land. The learned counsel for intervenor Bapunas submitted that
precisely because of (mis)appropriation by the petitioner of rights of
Bapunas to construct on their land, Bapunas want to intervene in the
petition.
16. As already observed, the question in the petition relates to
orders of the Municipal Authorities and the State in respect of structure
in question. Bapuna as well as other purchasers/ intervenors who have
filed Civil Application No.2236 of 2006 would have appropriate remedy
in the competent Civil Court if they find that they have been duped,
having received nothing in exchange of valuable consideration paid by
them to the petitioner. They cannot be allowed to intervene in the
petition to expand the scope of inquiry. Therefore, all the applications
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for intervention bearing Civil Application Nos. 4798/2005, 4799/2005
and 2236 of 2006 are rejected.
17. With this lengthy prelude, I would proceed to consider the
arguments advanced on merits of the petition by Shri M.G. Bhangde,
learned Senior Counsel for the petitioner, Shri Mujumdar, learned
Assistant Government Pleader for respondent No.1-State of
Maharashtra and Shri Mishra, learned counsel for Respondent No.2
Nagpur Municipal Corporation.
18. The learned counsel for the petitioner assailed the order
passed by the Principal Secretary to the Government of Maharashtra
on 25.02.2005 on the ground that he had no jurisdiction to hear the
appeal. For this purpose he relied on notification bearing
th
No.TPS/295/505/CR-95/UD/12 dated 6 August, 2001 a copy whereof
has been appended by the petitioner to Civil Application No.2231 of
2006 for amendment of the petition. By this notification issued in
exercise of powers conferred upon the Government under Sub-Section
(1) of Section 151 of the MRTP Act, and in supersession of earlier
orders, the Government of Maharashtra directed that the Chief
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Minister or Minister for Urban Development shall hear and decide all
appeals filed under Section 47 of the MRTP Act arising from
jurisdictions of the Municipal Corporations of the State and Special
Town Planning Authorities appointed under Section 40 of the Act,
excluding Vasai and Virar. The Minister of State for Urban
Development was empowered to decide all the appeals under Section
47 arising from the jurisdiction of A-Class Municipal Councils and also
appeals under Section 93 and 124(C) of the MRTP Act. The Principal
Secretary was empowered to decide all the appeals pertaining to Vasai
and Virar Sub-Division of Thane District under Section 47 of the Act.
The Director of Town Planning was empowered to continue to hear and
decide appeals under Section 47 of the Act pertaining to B and C Class
Municipal Councils, and all non-municipal Towns and Nagar
Panchayats. Clause (2) of the notification which is assailed by the
learned counsel for the petitioner reads as under :
“(02) The aforementioned distribution of powers
may be varied in particular cases depending upon their
complexity and other relevant factors. Similarly, the
Hon'ble Chief Minister/ Minister for Urban Development
may further re-delegate the powers for hearing and
taking decision to the Minister of State for Urban
Development or the Principal Secretary-I to
Government of Maharashtra, Urban Development
Department.”
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19. The learned counsel for the petitioner submitted that Section
151 of the MRTP Act, under which this notification is issued, would
enable the Government to delegate its powers to any authority. The
notification delegates powers to the Chief Minister or the Minister for
Urban Development in respect of areas within Nagpur city, and then
goes on to permit the Chief Minister or the Minister concerned to re-
delegate powers to Minister of State or the Principal Secretary. The
learned counsel submitted that such re-delegation is impermissible
because the section does not provide for such re-delegation.
20. The learned Assistant Government Pleader first submitted
that this argument is not open to the petitioner who filed an appeal
before the Principal Secretary. Copy of Memo of Appeal preferred by
the petitioner (Annexure P to the petition) would show that it was
addressed to the Principal Secretary as well. As rightly pointed out by
the learned A.G.P. it is not that the petitioner had submitted to the
jurisdiction of the Principal Secretary on being dragged before the
Principal Secretary by adversaries. The petitioner had himself invoked
that jurisdiction. Therefore, if the petitioner went to a wrong forum,
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which had no jurisdiction, knowingly with a hope of getting relief in his
favour, he cannot assail the order as nullity because the forum has
decided against him. Further, if the petitioner did feel that the
Principal Secretary lacked jurisdiction and therefore, order of the
Principal Secretary would be nullity, the petitioner could have raised
such contention before the Principal Secretary himself and could have
sought to have the matter placed before the competent authority.
Not having done so and having deliberately spent time before what,
according to the petitioner, was a forum without jurisdiction, the
petitioner cannot now take advantage of his own so called lapse to
further postpone the consequences of notice under Section 53 of the
MRTP Act. The learned A.G.P. stated that the Principal Secretary did
have jurisdiction and had rightly decided the petitioner's appeal.
21. The contentions of the learned counsel for the petitioner that
parties cannot clothe jurisdiction on an authority lacking jurisdiction
by consent is unexceptionable. However, if that was so, just as the
petitioner claimed to have ignored the directions given by the
Municipal Corporation on 04.04.1997 on the plans submitted by him on
21.09.1995, because he believed that corporation lacked jurisdiction to
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do so, he could have as well ignored the appellate order and avoided
rushing to this Court. The whole conduct of the petitioner smacks of
attempting to perpetrate the illegalities committed by him. Even so,
since the point has been raised, I would consider the question as to
whether the Principal Secretary indeed lacked the jurisdiction or not.
22. The learned counsel for the petitioner relied on judgment of
the Supreme Court in Sahni Silk Mills (P) Ltd., Vs. E.S.I. Corpn. ,
reported at (1994) 5 SCC 346 relating to the provisions of Section
94-A of the Employees State Insurance Act. A Regional Director issued
notice under Section 85-B of the Act and imposed damages on the
defaulting parties. The order was challenged before the E.S.I. Court
and the High Court, which repelled the challenge. It was urged before
the Supreme Court that powers under Section 85-B can be exercised
only by the Corporation. Section 94-A permitted the delegation of
powers of the Corporation. By notification dated 28.02.1976. The
powers of the Corporation were made exercisable by the Director
General or any other officer authorised by him. This part of the
notification, which enabled the Director General to authorise any other
officer to exercise powers, was under challenge. In this context,
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following observations of the Supreme Court may be usefully
reproduced :
“5. The courts are normally rigorous in
requiring the power to be exercised by the persons or
the bodies authorised by the statutes. It is essential
that the delegated power should be exercised by the
authority upon whom it is conferred and by no one else.
At the same time, in the present administrative set-up
extreme judicial aversion to delegation cannot be
carried to an extreme. A public authority is at liberty to
employ agents to exercise its powers. That is why in
many statutes, delegation is authorised either
expressly or impliedly. Due to the enormous rise in the
nature of the activities to be handled by statutory
authorities, the maxim delegatus non potest delegare
is not being applied specially when there is question of
exercise of administrative discretionary power.
12. It has to be borne in mind that the exercise of the
power under Section 85-B (1) is quasi-judicial in nature,
because there is always a scope for controversy and
dispute and that is why the section itself requires that
before recovering any such damages, a reasonable
opportunity of being heard shall be given to the
employer. The employer is entitled to raise any
objection consistent with the provisions of the Act.
Those objections have to be considered. After
consideration of objections, if any, an order for
recovery of damages has to be passed. The maxim
delegatus non potest delegare was originally invoked in
the context of delegation of judicial powers saying that
in the entire process of adjudication a judge must act
personally except insofar as he is expressly absolved
from his duty by a statute. The basic principle behind
the aforesaid maxim is that “a discretion conferred by
statute is prima facie intended to be exercised by the
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authority on which the statute has conferred it and by
no other authority, but this intention may be negatived
by any contrary indications found in the language,
scope or object of the statute”.
Since in that case, subsequently, by notification dated
19.02.1983, the Corporation resolved that the powers under Section
85-B of the E.S.I. Act could be exercised even by the Regional Director
and other officers, the dispute did not survive. The Court, however,
held that the Director General could not have delegated his powers to
the other officers.
23. There can be no doubt that if the statute does not permit re-
delegation, the authority to which the power is delegated in the first
place would not be permitted to re-delegate the same to a subordinate
authority. Therefore, in this case, it would have to be found out
whether there is infact a re-delegation by the Chief Minister or
Minister. The learned Assistant Government Pleader contended that
Section 47 of the MRTP Act itself provides that appeal may be made to
the State Government or an officer appointed by the State
Government in this behalf, not below the rank of Deputy Secretary.
Thus, the section itself provides that an appeal is competent to the
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State Government, or to an officer appointed by the State
Government. Clause (i) of Section 151 of the MRTP Act enables the
State Government by notification in the official gazette to delegate any
powers exercisable by it i.e. the State Government, under the Act or
Rules to any officer appointed by the State Government. Thus, the
notification dated 06.08.2001 issued under Section 151 of the Act
would refer to the delegation of powers exercisable by the Government
under Section 47, since the section itself provides for appeals being
entertained without any delegation of powers not only by the State
Government, but also by officers above the rank of Deputy Secretary.
The learned A.G.P. submitted that paragraph (2) of the notification
may be read as assignment of business of hearing appeals by the Chief
Minister or Minister to an officer who already had such power in terms
of Section 47. Therefore, according to him mere use of word “re-
delegation” in said paragraph 2 of the notification dated 06.08.2001 in
itself need not turn such allocation into actual re-delegation.
24. The learned A.G.P. further submitted that rules of business
framed under Article 166(3) of the Constitution of India do not relate to
delegation of powers but only define, under the rules of business, as to
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who is to be the “State Government” for a particular purpose. The
rules provide for powers to be exercised by the minister. No
delegation of powers is involved in this since the rules of business only
define as to what is Government in relation to the particular business
of the Government. In any case delegation, if any, in respect of
powers of the Government, would not affect the power of an officer not
below the rank of Deputy Secretary, who too, under Section 47, may
be competent to hear an appeal. Though phraseology of notification
th
dated 6 August, 2001 is not exactly ideal and it does use the word re-
delegation by the Chief Minister or Minister for Urban Development,
the learned A.G.P. submitted that since Section 47 itself provides for
hearing of appeals by the State Government as well as officers above
the rank of Deputy Secretary, there is no question of delegation of
powers and only the question of allocation of business of hearing
appeals arising from various categories of local bodies has been
covered by the notification under Section 151 of the MRTP Act issued
th
on 6 August, 2001. According to the learned A.G.P. it would be
appropriate to make the notification workable rather than strike it
down as violative of maxim delegatus non potest delegare . He
submitted that in Sahni Silk Mills's case, on which the learned counsel
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for the petitioner placed reliance, the Supreme Court had observed in
paragraph 5 that in the present administrative setup extreme judicial
aversion to the delegation cannot be carried to an extreme. The
learned A.G.P. submitted that this is not a case of inherent lack of
jurisdiction and since the petitioner himself had taken appeal to the
Principal Secretary the decision in appeal may not be ignored as nullity
on this count.
25. Ordinarily when a new enactment comes into force, all the
notifications required to be issued are not simultaneously notified.
Subordinate legislation takes its own time. In several enactments,
several questions would be required to be decided by the Government.
The learned A.G.P. therefore, submitted that in absence of any
notification the question as to what is State Government in the
particular context would always have to be decided with reference to
the rules of business framed under Clause (3) of Article 166 of the
Constitution. He submitted that whenever appeals are statutorily
required to be decided by Government, it would be the business of the
Government to hear appeals and therefore, such hearing of appeals
will be covered by Rules of Business till any other provision is made.
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26. The learned counsel for petitioner countered by placing
reliance on the decision in Sheikh mohamed Fatemohamed Vs.
Raisuddin Azimuddin Katil , reported at 2000(3) ALL MR 546 , pointing
out that the Full Bench of this Court was considering the question of
delegation of powers of the Government under Hyderabad Abolition of
Inams and Cash Grants Act (1954). Section 2 A(2) of the said Act
provides for appeal to the State Government against the orders of
authorised officer. There is no reference to the power of the State
Government to delegate its authority to any other officer of the State
Government. However, the Government routinely delegated the
powers to hear the appeal under Section 2-A(2) of the said Hyderabad
Act to an Officer on Special Duty. The Full Bench considered the
question of rules for conduct of business of the Government framed
under Clause (3) of Article 166 of the Constitution of India and held
that resort could not be had to the rules of business framed under
Article 166(3). In view of this the learned counsel for the petitioner
submitted that the delegation to the Principal Secretary of powers to
hear the appeal was totally impermissible and hence, the decision
rendered by the Principal Secretary being without jurisdiction, was a
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nullity.
27. The contention of the learned counsel for the petitioner that
the Full Bench of this Court in Sheikh Mohammed Vs. Raisuddin ruled
that whenever power to hear appeal against statutory order is not
delegated by the statute itself, the Government cannot regulate
powers through rules of business under Article 166 of the Constitution,
needs to be examined. It may be seen that reference to Full Bench
was occasioned because in G.K.Deshmukh Vs. Devisingh , reported at
AIR 1972 Bombay 369 , a Division Bench of this Court took the view
that when a function of making a quasi-judicial decision like the one
under Section 2-A of Hyderabad Abolition of Inams and Cash Grants
Act is before the Court, looking to the scheme of the statute it cannot
be delegated to another person or authority in the absence of statutory
provision authorising such delegation. Another Division Bench deciding
Maruti Pandu Vs. Babu Narayan , reported at 1983 MH LR Bom 148
while considering the provisions of Section 2-A of the same Act, held
that Officer on Special Duty could be conferred with authority to hear
an appeal required to be decided by the State Government under
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notification which springs from Article 166 of the Constitution read with
Rules of business of the Government.
rd
28. Confronted with these conflicting judgments a 3 Division
Bench hearing Sheikh Mohammed Vs. Raisuddin referred the matter
for consideration by the Full Bench. This is how the Full Bench came to
consider the question as to which of the two earlier decisions laid down
the correct law. The Full Bench upheld the decision in Ganeshrao's
case reported at AIR 1972 Bom.369, overruling the decision reported
at 1983 MH LR Bom.148 . While so doing the Full Bench observed in
paragraphs 12 to 14 of its judgment as under :
“12. It is quite clear that what is meant by sub-
article (3) is the convenient transaction of business of
the Government and allocation amongst different
Ministers of this business, so as to make the running of
the Government smooth. It is difficult to visualize the
situation under this sub-article. Whether the concept
of an appeal, arising out of a quasi judicial power can
be termed as a business of the Government.
13. So far as the said Act is concerned, there
would not have been any question of there being any
appeal in respect of inams tenure determining
respective rights of the landlord and / or tenant of the
occupant. This being entirely the field of the Statute,
specially enacted for the purpose and right of appeal
also having been given by it, in our opinion, it cannot
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26
be regulated by general power of rule making as
provided under Article 166 of the Constitution of India,
more so, when the Article 166, in our opinion, does not
deal with the business of the nature of deciding quasi
judicial dispute and appeals arising thereunder.
14. The quasi judicial functions, thus, in our
opinion would be out of the purview of this Article,
much less than would not be covered by the Rules of
business under Rule 15, as sought to be done, as noted
in the decision of Maruti Pandu's case(cited supra).”
29. The question before the Full Bench was one of the power of
the State Government to routinely delegate, to an officer on special
duty, its power under Clause (2) of Section 2-A of the Hyderabad Act.
The causation by which the Full Bench reached the conclusion may not
be exactly helpful in the present case, because in the instant case
Section 47 of the MRTP Act expressly provides for appeals being not
only heard by the State Government, but also by an officer above the
rank of Deputy Secretary, as contrasted with Clause 2 of Section 2-A
of the Hyderabad Act where there was no express provision for
decision by any other authority. The Full Bench had not held that an
appeal arising out of quasi judicial power could not be termed as
business of the Government, though the Bench found it difficult to so
visualise. Sometimes, even if one finds some things difficult, they have
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27
to be done.
30. The question of amenability of exercise of quasi-judicial
functions to the rule making power under Article 166(3) of the
Constitution was considered by the Supreme Court in G. Nageswara
Rao Vs. A.P.S.R.T.Corpn. , reported at AIR 1959 SC 308 while
considering the provisions of Motor Vehicle's Act, 1939. Majority of the
Supreme Court headed by the Chief Justice held that Section 68-D of
Motor Vehicles Act imposes duty on the State Government to decide
judicially in approving or modifying the scheme proposed by the
transport undertaking. (Minority comprising of Wanchoo and Sinha JJ
held that while doing so the State Government was not discharging
any judicial or quasi-judicial function and that it was discharging only
nominal administrative function). In that context hearing given by the
Secretary incharge of the Transport Department was being questioned.
The majority of the Supreme Court had therefore, to consider whether
the powers to perform this quasi judicial function could be dealt with
by Rules made by the Governor for transaction of business. In this
context it was argued that the Rules which the Governor is authorised
to make are only to regulate the acts of the Governor or his
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28
subordinates in discharge of the executive power of the State
Government and therefore, will not govern the quasi-judicial functions
entrusted to it. In paragraph 28 of the judgment the majority of the
Court clearly repelled this argument by observing as under :
“There is a fallacy in this argument. The
concept of a quasi-judicial act implies that the act is
not wholly judicial; it describes only a duty cast on the
executive body or authority to conform to norms of
judicial procedure in performing some acts in exercise
of its executive power. The procedural rules made by
the Governor for the convenient transaction of business
of the State Government apply also to quasi-judicial
acts, provided those Rules conform to the principles of
judicial procedure. ”
31. In view of this categorical finding of the Supreme Court way
back in the year 1959, it may not be permissible to follow the
difficulties expressed by the Full Bench of this Court in visualising
whether an appeal to be decided in exercise of quasi judicial powers
was amenable to the rule making power of the Governor under Article
166 of the Constitution. Had this judgment of the Supreme Court
been noticed by the Full Bench, it would have surely conformed to the
view of the Supreme Court and would not have expressed any
difficulty. Any different view is not shown to have been taken by the
Apex Court so far.
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29
32. Apart from this in A. Sanjeevi Vs. State of Madras , reported at
AIR 1970 SC 1102 the question of allocation of business of
Government had come up before a six Judge bench of the Supreme
Court. Paragraph 4 of the judgment shows that in that case the
question was as to who is to form the opinion requisite under Section
68-C of the Motor Vehicles Act. It was urged that the requisite opinion
could have been formed either by the council of ministers or the
minister to whom the business had been allocated, but not by the
Secretary. After considering the submissions advanced, in paragraph
11 of the judgment the Court observed as under :
“11. We think that the above submissions
advanced on behalf of the appellants are without force
and are based on a misconception of the principles
underlying our Constitution. Under our Constitution,
the Governor is essentially a constitutional head, the
administration of State is run by the Council of
Ministers. but in the very nature of things, it is
impossible for the Council of Ministers to deal with each
and every matter that comes before the Government.
In order to obviate that difficulty the Constitution has
authorised the Governor under sub-article (3) of Article
166 to make rules for the more convenient transaction
of business of the Government of the State and for the
allocation amongst its Minister, the business of the
Government. All matters excepting those in which
Governor is required to act in his discretion have to be
allocated to one or the other of the Ministers on the
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30
advice of the Chief Minister. Apart from allocating
business among the Ministers, the Governor can also
make rules on the advice of his Council of Ministers for
more convenient transaction of business. He can, not
only allocate the various subjects amongst the
Ministers but may go further and designate a particular
official to discharge any particular function. But this
again he can do only on the advice of the Council of
Ministers.”
This judgment should set of rest any doubts as to what is
“Government” in the context of exercise of statutory powers, including
quasi judicial powers.
33. In the light of foregoing discussion the position that would
emerge is as under :
(a) Rules of business framed under Clause (3) of Article 166 of
the Constitution could also cover business of hearing statutory
appeals.
(b) “Government” for this purpose is not just Council of Ministers
but even officers of the Government, as may be authorised under
such rules.
(c) Under the Rules of business of Maharashtra Government,
Minister in charge of the Urban Development Department is “the
Government” for the purpose of exercising powers under Section 47 of
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the MRTP Act.
(d) Notification dated 06.08.2001 under Section 151 of the MRTP
Act must be taken to merely reiterate this position and cannot be held
to delegate to the Minister, the powers which he already possesses.
(e) Since power to hear appeal already vested in the Minister by
virtue of Rules of business, his delegating the same to the Principal
Secretary would not amount to re-delegation, not withstanding the use
of word re-delegation in para 2 in the notification dated 06.08.2001.
(f) In any case since Section 47 itself independently conferred
power to hear appeals on officers 'appointed' by the State Government
to hear such appeals, “delegation” of powers to such officers was not
at all contemplated. The State Government was to merely “appoint”
officers to hear appeals.
(g) Consequently there was no warrant to invoke the power to
delegate under Section 151 of the MRTP Act and such delegatory
exercise is redundant. The notification has to be read as one merely
allocating appeals arising from various local bodies to various
authorities.
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(h) In view of this, it cannot be said that Principal Secretary
lacked the authority to decide appeal.
(i) In any case, the petitioner having himself approached the
Principal Secretary and not having ever demurred about lack of
jurisdiction, it is not open to the petitioner to indulge in this dilatory
trick of pointing out that he was before the wrong forum to suggest
that he may now be allowed to spend more time with the right forum.
34. Apart from this, it may be seen that the petitioner has also
challenged the notice issued on 26.08.2004 and the order passed by
respondent No.2 Nagpur Municipal Corporation on 22.11.2004 (which
he had challenged before respondent No.1). Therefore, it would be
necessary to examine correctness of these actions of respondent No.2,
which would cover the question whether the Principal Secretary had
erred while deciding the appeal.
35. The learned counsel for the petitioner submitted that when
the plan was sanctioned on 17.02.1992 bye laws dated 24.06.1965
were in force and these bye laws did not refer the concept of Floor
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33
Space Index (F.S.I.) and therefore, consideration of petitioner's plans
with reference to F.S.I. was improper. He further submitted that after
having sanctioned the plan on 17.02.1992 which included a basement
without any user being specified, as also plan for seventh floor, it was
impermissible for the Municipal Corporation to specify the purpose for
th
use of basement or to reduce the height and disallow 7 floor, while
considering the plan submitted on 21.09.1995.
36. Both these contentions were stoutly opposed by the learned
counsel for respondent No.2 Municipal Corporation. He submitted that
the provisions of MRTP Act apply to all developmental activities in city
of Nagpur in respect of which a Development Plan has been sanctioned
in the year 1976 itself. Referring to the provisions of Section 46 of the
MRTP Act, the learned counsel submitted that in considering the
applications for permission, the Planning Authority must have due
regard to the provisions of draft or final plans or proposals published
under the Act. He submitted that the concept of F.S.I. was already
existed in the Development Control Rules under the MRTP Act, though
it may not have been there in very specific terms in 1965 bye laws.
These, Development Control Rules have been eventually notified on
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34
09.04.2001.
37. The learned counsel for respondent No.2 Municipal
Corporation further submitted that any building permit is valid only for
a period of two years from the date of its sanction under the bye laws.
Therefore, permit dated 17.02.1992 on which the petitioner relies
expired on 17.02.1994. The petitioner does not state that any
extension was ever sought. Therefore, according to the learned
counsel for Respondent No.2, the plan sanctioned on 17.02.1992 had
also lapsed just as earlier plan dated 26.07.1991 had lapsed and was
consequently of no use. He submitted that the plan dated 21.09.1995
submitted by the petitioner was sanctioned by the Municipal
Corporation on 04.04.1997 with some modifications. Therefore,
construction ought to conform to this sanction with modifications. The
learned counsel for the petitioner has not been able to explain as to
how he could claim to have proceeded with construction of seventh
floor which was disallowed, or change the user of basement when, by
sanction dated 04.04.1997, the Municipal Corporation has specifically
earmarked the basement for parking. The contention of the learned
counsel for petitioner contented that the petitioner was entitled to
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35
ignore sanction dated 04.04.1997 because it was without any authority
of law, is atrocious. The learned counsel for petitioner has not been
able to explain as to how sanction dated 04.04.1997 lacked the
authority of law. Therefore, as rightly submitted that the construction
in question being in violation of the sanctioned plan was liable to be
removed as conveyed to the petitioner by notice under Section 53 of
the MRTP Act.
38. The learned counsel for the petitioner next submitted that
actual area of construction was not calculated properly by the
Municipal Authorities as also by the appellate Authority. He pointed
out the discrepancies in this behalf, particularly in respect of the area
calculation of third floor. He submitted that passages and balconies
were required to be excluded under sub-clause (42) of Clause 1 of
Building Bye laws of 1965. He pointed out that even Clause 15.4.2 of
the bye laws which became applicable from 01.01.1993 excluded the
balconies. The learned counsel for respondent No.2 submitted that the
area of third floor was rightly calculated by the Corporation and that an
area could not be excluded only because walls had not yet been
constructed to enclose that disputed area. The learned counsel for
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36
respondent No.2 further submitted that the bye laws may exclude
balconies, but not passages, and it is not shown as to what is the exact
area of passages or balconies which is sought to be deducted by the
petitioner. He submitted that the competent authorities in the
Municipal Corporation have correctly calculated the floor area with
reference to the land purchased by the petitioner and have found that
the construction exceeds permissible limits. It would not be possible
for this Court to go into this disputed questions of fact relating to
computation of actual floor area.
39. The learned counsel for the petitioner had stated that the
F.S.I. available is infact more than that what is consumed, and, for a
moment, sought to suggest that the F.S.I. available would make it
possible even for intervenor Bapuna to construct on 63000 sq.ft. land
purchased by Bapuna, though he soon withdrew this contention, and
declared that Bapuna had purchased open land with open eyes
knowing that there was no prospect of developing the land purchased.
It is ridiculous to suggest that a person would purchase property worth
over Rs.3,93,00,000/- without any prospect of laying even a stone
thereon. Thus admittedly the petitioner's structure is not within the
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37
limits of F.S.I. available to the area of plot which remained with him
after sale of 63000 sq.ft. of site to Bapuna.
40. The learned counsel for the petitioner assailed notice issued
by Nagpur Municipal Corporation under Section 53 of the MRTP Act on
the ground that Section 53 of the Act has no application at all. He
submitted that for initiating action under Section 53 it is necessary
that the development of the land should have been carried out as
indicated in Section 52 of the MRTP Act. For attracting provisions of
Section 52, according to the learned counsel, it is necessary to show
that the development has been carried out without permission
required under the Act. According to the learned counsel since Nagpur
Municipal Corporation was not at all the “Planning Authority” at the
relevant time in respect of the area in question, there was no question
of obtaining permission of Nagpur Municipal Corporation under MRTP
Act. Consequently there is no violation of Section 52, and no occasion
for the corporation to act under Section 53 of the MRTP Act.
41. For this purpose the learned counsel for the petitioner took
me to the definitions of the Planning Authority and Local Authority in
Clauses 19 and 15 of Section 2 of the MRTP Act, which read as under :
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“[(19) “Planning Authority” means a local authority;
and includes, -
(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed under
section 40;
(b) in respect of the slum rehabilitation area
declared under section 3C of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment)
Act, 1971, the Slum Rehabilitation Authority appointed
under Section 3A of the said Act;]
Clause 15 of the same Section defines 'Local Authority'
as under :
“(15) “local authority” means -
(a) the Bombay Municipal Corporation constituted
under the Bombay Municipal Corporation Act or the
Nagpur Municipal Corporation constituted under the
City of Nagpur Municipal Corporation Act, 1948, or any
Municipal Corporation constituted under the Bombay
Provincial Municipal Corporation Act, 1949.
[(b) a Council and a Nagar Panchayat constituted
under the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965,]
(c) (i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishad and Panchayat Samitis Act,
1961,
(ii) the Authority constituted under the Maharashtra
Housing and Area Development Act, 1976],
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39
(iii) the Nagpur Improvement Trust constituted under
the Nagpur Improvement Trust Act, 1936,];
which is permitted by the State Government for any
area under its jurisdiction to exercise the powers of a
Planning Authority under this Act ;”
42. There is no doubt that the Planning Authority means a Local
Authority, and Local Authority means Nagpur Municipal Corporation as
well. The learned counsel however, submitted that Nagpur Municipal
Corporation would not be a Local Authority for the entire area within
the jurisdiction of the Corporation, and in view of the last part of
Clause (15) of Section 2 it would be a Local Authority only for the area
which is permitted by the State Government for any area in its
jurisdiction to exercise powers of the Planning Authority under this Act.
The learned counsel would like me to read clause 15 of Section 2 of
MRTP Act, as under :
“Local Authority” means :
(a)..................Nagpur Municipal Corporation...., (Comma)
(b)................................, (Comma)
(c) (i) .........................., (Comma)
(ii) .........................., (Comma)
(iii) .........................., (Comma)
which is permitted by the State Government for any area under its
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40
jurisdiction to exercise powers of the Planning Authority under this
Act ; (semi colon).
43. According to him the expression “which is permitted by the
State Government for any area under its jurisdiction to exercise
powers of the planning authority under this Act” is applicable to all the
three sub-clauses (a), (b) and (c) of Clause 15. Fortunately Clause 15
as it originally appeared in the text of the act published at Page 142
th
in Part-IV of Maharashtra Government Gazette, dated 29 December,
1966 is available. This clause in the gazette notification reads as
under :
“(15) “local authority” means -
(a) the Bombay municipal Corporation constituted
under the Bombay Municipal Corporation Act, or the
Nagpur Municipal Corporation constituted under the
City of Nagpur Municipal Corporation Act, 1948, or any
municipal corporation constituted under the Bombay
Provincial Municipal Corporations Act, 1949,
(Comma)
(b) A Municipal Council constituted under the
Maharashtra Municialities and Panchayat Samitis Act,
1965 ; (Semi colon)
(c)(i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961, (Comma)
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41
(ii) the Nagpur Improvement Trust constituted under
the Nagpur Improvement Trust Act, 1936,
(Comma)
which is permitted by the State Government for any
area under its jurisdiction to exercise the powers of a
Planning Authority under this Act ;” ( Semi Colon)
44. It may be seen that after Clause (a) there is comma whereas
after clause (b) there is semi colon indicating that clauses (a) and (b)
are in one group. Then thereafter follows clause (c) which initially had
two sub-clauses (i) and (ii) which culminate in commas, and which is
followed by expression, 'which is permitted by the State Government'
etc., ending with a semi colon. The semi colon after clause (b) is not
shown to have been replaced by a comma by any amending Act.
45. It may also seen that appendage “which is permitted by the
State Government...... etc.” obviously applies only to Clause (c) and
not to clauses (a) and (b), because it would be ridiculous to say that a
Municipal Corporation or a Council is not a local authority for areas
within its jurisdiction. It is also equally clear that Zilla Parishad or
Nagpur Improvement Trust, not being local authorities, would have to
be deemed to be the local authorities only for areas over which the
State Government permitted such bodies to exercise powers of the
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42
Planning Authority. In respect of Zilla Parishads, who have jurisdiction
over the entire district area would have to be specified since it is not
intended to cover development of entire rural area by the “Town”
Planning Act. Unlike other local authorities the Nagpur Improvement
Trust was specifically created to look after improvement of the City of
Nagpur. Therefore, its jurisdiction coincided, or in a large measure
overlapped with that of Nagpur Municipal Corporation. Therefore, while
permitting Nagpur Improvement Trust to exercise powers of the
Planning Authority and therefore making the Trust local authority
under Clause 15 of Section 2 of the MRTP Act, its jurisdiction had to be
defined. This is the genesis of the last lines of sub clause (c) of Clause
15 of Section 2. Jurisdiction of Nagpur Municipal Corporation may have
been pro-tanto excluded to avoid duality of control or conflict of
authority. It does not follow that the Nagpur Municipal Corporation as
local authority was not Planning Authority under Clause 19 of Section 2
of MRTP Act.
46. The learned counsel for the petitioner had relied on the
notification published in Part-I-A of Maharashtra Government Gazette
th
dated 11 March, 2002 to contend that the Nagpur Municipal
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43
Corporation got jurisdiction only from 27.02.2002. This contention is
fallacious and has to be rejected because notification dated
27.02.2002 itself makes it abundantly clear that the earlier notification
th
dated 6 October, 1967 had conferred powers of Planning Authority on
the Nagpur Improvement Trust for the area specified. Notification
th
dated 27 February, 2002 withdrew the earlier notification and
restricted the role of Nagpur Improvement Trust as the Planning
Authority only over about 7208.75 hectares of the area specified in the
said notification.
47. If according to the petitioner Nagpur Municipal Corporation
was not the Planning Authority under MRTP Act and that the Nagpur
Improvement Trust was Planning Authority for the entire city, he
should have shown that he had approached the Nagpur Improvement
Trust and had obtained requisite sanction from the Trust. It is
distressing to note that the petitioner has been extremely
unscrupulous in his approach and wants to totally evade all control by
any authority for the construction activities undertaken by him. For
assailing action of the Municipal Corporation under Section 53 of the
Act he states that the Trust and not Corporation was the Planning
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44
authority, but does not approach the trust for obtaining permission for
construction. He approaches the Corporation for permission to
construct, but deviates from the modifications made by the
Corporation in his proposed plan. While executing sale deeds in favour
of the intervenors in Civil Application No.2236/2006 he produces No
Objection Certificate from the Nagpur Improvement Trust, concealing
from the Sub-Registrar the fact that Trust was not the competent
authority and that his construction had not been approved by Nagpur
Municipal Corporation, which was competent authority to whom he had
applied.
48. The learned counsel for the petitioner next submitted that the
petitioner had submitted revised plans after the notice dated
26.08.2004 was received by him. These plans submitted on
28.10.2004 was rejected outright by the Corporation on 22.11.2004.
According to the learned counsel the plans were required to be
considered afresh if the Corporation is to contend that the provisions of
Clause (3) of Section 53 applied. Under Clause (3) of Section 53 of the
MRTP Act person aggrieved by the notice is entitled within the period
specified in the notice, to apply for permission under Section 44 for
retention of the land or any building or work, to which the notice
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45
relates, and pending final determination or withdrawal of the
application, the mere notice in itself, does not affect retention of the
building of works or the continuance of such use. The learned counsel
for respondent No.2 Municipal Corporation submitted that the revised
plans were duly considered in light of rules applicable and were
rejected as they violated the rules, and that there is no force in the
contention that the revised plans were not considered by the
Corporation. The letter dated 22.11.04 whereby Corporation rejected
the petitioner's revised plan which is at Annexure “O” to the petition,
spells out six objections to the plan while rejecting the plans. The
learned counsel for the petitioner was unable to show as to how these
plans were wrongly rejected or how they conformed to rules.
49. The learned counsel for one of the intervenors had drawn my
attention to two decisions of the Supreme Court which strongly
deprecated the practice of condonation of unauthorised construction.
In M.I. Builders Pvt. Ltd Vs. Radhey Shyam Sahu , reported in (1999) 6
SCC 464, the Court was considering amongst other things
unauthorised construction by a builder who was permitted to construct
underground Shopping Complex in a park. In paragraph 73 of the
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46
judgment the Court observed that no consideration should be shown to
a builder or any other person where construction is unauthorised and
that this dictum is now almost bordering the rule of law. The Court
held that though allottees to the shop wanted use of judicial discretion
in moulding the relief, the discretion should not be exercised for
perpetuating illegality. The Court observed that unauthorised
construction which cannot be compounded has to be demolished and
that judicial discretion cannot be guided by expediency. The Court
added that while directing demolition of unauthorised construction, an
inquiry as to how construction came about should be ordered and
offenders should also be booked.
50. In Friends Colony Development Committee Vs. State of
Orissa , reported at 2004 (8) SCC 733 the Supreme Court has held
that deliberate deviations should not be condoned or compounded. In
that case too the builder had added additional fifth floor which was
totally unauthorised. In spite of the disputes and litigations, the
builder had parted with his interest and inducted occupants on all the
floors including the additional floor. The Court further held that the
deviations which deserve to be condoned must be bona fide or
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47
attributable to some misunderstanding or are such deviations where
the benefit gained by demolition would be far less than the
disadvantage suffered. The Court had observed that deliberate
deviations with the intention of gaining profit deserve to be dealt with
sternly so as to act as a deterrent in future.
51. In Mahendra Baburao Mahadik Vs. Subhash Krishna Kanitkar ,
reported at (2005) 4 SCC 99 , the Supreme Court had considered the
decisions in Friends Colony Development Committee Vs. State of
Orissa as also M.I. Builders (P) Ltd. Vs. Radhey Shyam Sahu and had
quoted, by way of reiteration, the principles enunciated in paragraph
25 of the judgment in Friends Colony's case and paragraph 73 of the
M.I. Builder's case.
52. As the foregoing discussion would show the petitioner builder
had indulged in deliberate deviations bordering on fraud, which do not
deserve to be compounded or condoned, as observed by the Supreme
Court in the Friends Colony's case. In that case too the Court has also
observed that officers conniving at such deviations should not be
spared.
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48
53. To sum up :
(a) The petitioner is not entitled to rely on the plan sanctioned
on 17.02.1992 since he had not completed construction within the
stipulated period and had not sought any extension of time for
completing construction as per this plan.
(b) The petitioner submitted a revised plan on 21.09.1995 i.e.
about 3-1/2 years after the second plan was sanctioned on 17.02.1992,
but did not adhere to the condition on which the approval was granted
on 04.04.1997 and raised unauthorised seventh floor and also changed
the user of basement.
(c) After having exhausted entire Floor Space Index (FSI)
available for the entire plot he had no compunction is selling chunk of
remaining open land for a valuable consideration of over Rs.
3,93,00,000/- and had the cheek to tell the Court that the purchaser
would not be able to construct on the land since the purchaser had
purchased the land with open eyes.
(d) Inspite of the stipulation on 04.04.1997 of the Municipal
Corporation that the basement be used for parking only and that
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49
seventh floor was not sanctioned, after 04.04.1997 the petitioner sold
to the intervenors who have filed C.A. No.2236/2006, some portion in
basement and top floor for commercial use for a valuable
consideration of about a crore of rupees.
(f) Though the petitioner had not obtained sanction for any of
his plans from Nagpur Improvement Trust, he obtained no objection
certificate from Nagpur Improvement Trust for getting sale deeds in
favour of the intervenors in Civil Application No.2236 of 2006
registered.
54. It is therefore, clear that the entire conduct of the petitioner
not only lacks bona fides, but borders on playing fraud. It is equally
unfortunate that the Municipal Authorities who were charged with duty
of regulating the construction activity, failed to diligently discharge
their duties. In view of the law laid down by the Apex Court in three
judgments, quoted above, there is no question of showing any
indulgence for such activities. There is no question of assisting the
petitioner who not just failed to come to the Court with clean hands but
rather dared to enter the Court red handed.
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50
55. Rights of intervenors are not required to be considered in this
petition since it would unnecessarily protract the litigation, obscure the
issue and enable the petitioner to perpetrate his illegalities and to go
ahead with disposal of his unauthorised construction to unsuspecting
buyers.
56. As I dismiss the petition as also the applications for
intervention by this order, it would be appropriate to also direct the
Municipal Commissioner to initiate an inquiry into the conduct of the
officers who were responsible for allowing the construction to be raised
to such level and had failed to examine whether the construction was
proceeding according to sanctioned plans.
57. The Municipal Commissioner, Nagpur Municipal Corporation,
Chairman of Nagpur Improvement Trust, and the State Government
may examine this one instance of flagrant violation of rules to devise
remedial measures in order to ensure that such instances do not recur
and unsuspecting buyers do not become victims of the activities of
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51
unscrupulous builders.
In the result, the petition as well as applications for
intervention are rejected.
Interim stay be continued for fifteen days after the copy of the
judgment becoming available.
JUDGE
RR.
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