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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5577 OF 2004

SAI KRIPA MANGAL KARYALAYA & ORS.      … APPELLANTS

VERSUS

NAGPUR MUNICIPAL CORPORATION & ORS. … RESPONDENTS

J U D G M E N T  

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by the appellants against  

the judgment and order dated 30th April, 2002 passed by the  

High Court of Judicature at Bombay, Nagpur Bench, Nagpur in  

Writ Petition No.1485 of 1984. By the impugned judgment, the  

High  Court  allowed  the  writ  petition  filed  by  respondent  

nos.5 and 6 and held as follows:

(i)  The  building  permits  granted  by  Nagpur  Municipal  

Corporation to the land belonging to respondent No.4-

Gorakshan  Sabha,  a  Public  Trust  are  unauthorized  and  

illegal  and  hence  buildings  put  up  pursuant  to  such  

building permits are liable to be demolished  

(ii)  The  parties  may  make  fresh  applications  seeking  

building  permits  within  one  month  from  the  date  of  

judgment  in  accordance  with  revised  sanctioned  

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development plan of 2000-2001 and the Planning Authority  

shall dispose of such applications within four months.   

(iii)  The  Planning  Authority  shall  demolish  the  said  

structures if they were found not in conformity with the  

revised sanctioned plan of 2000-2001.

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

2.1 One Shri Dhondiba Diwadkar gifted land bearing Survey  No. 471, admeasuring 18.25 acres situated at Mouza Lendhra,  

Tahsil,  District  Nagpur  to  respondent  No.  4  -  Gorakshan  

Sabha, a Public Trust. The said land was on the outskirts of  

Town of Nagpur and with the passage of time is now within the  

Municipal limits of City of Nagpur.

2.2 In the year 1936, the Nagpur Improvement Trust Act (For  short, ‘1936’ Act) was enacted with a view to make provisions  

for the improvement and expansion of the then town of Nagpur.  

Under the 1936 Act a Trust namely Nagpur Improvement Trust  

(hereinafter  referred  to  as  ‘N.I.T’  for  short)  was  

constituted  and  N.I.T  was  empowered  to  frame  various  

improvement schemes specified u/s 27 of the 1936 Act for any  

area  and  on  such  scheme  being  sanctioned  by  the  State  

Government,  the  N.I.T.  was  to  implement  the  scheme,  if  

necessary by acquiring the land as contemplated under the  

1936 Act.   

2.3 With the gradual development of "Town of Nagpur" into  the "City of Nagpur", the city of Nagpur Corporation Act,  

1948 (for short, 'the Corporation Act') was enacted with a  

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view to make special legislative provisions to consolidate  

and amend the law relating to the Municipal affairs of the  

City of Nagpur. Section 2 of the Corporation Act specifically  

provides that the N.I.T constituted under the 1936 Act shall  

in the city of Nagpur continue to exercise the powers and  

perform  duties  conferred  and  imposed  under  the  1936  Act.  

Section 3(5) of the Corporation Act provides that all the  

provisions of 1936 Act shall apply to the city of Nagpur.  

Section 5(10) of the Corporation Act defines "City of Nagpur"  

means the larger urban area specified in the notification  

issued under Clause (2) of Article 243(Q) of the Constitution  

of India. With the enactment of the Corporation Act, certain  

amendments to the 1936 Act were carried out. As a result of  

amendment to section 1(2) of the Trust Act, the jurisdiction  

of  N.I.T.  was  extended  to  the  area  comprised  within  the  

limits  of  the  city  and  to  such  other  area  outside  these  

limits as the State Government may declare from time to time  

by notification. Section 2(m) of 1936 Act which was amended  

in 1952 provides that all references to anything required to  

be done under the 1936 Act shall include anything required to  

be done under the Corporation Act which the N.I.T by virtue  

of  1936  Act  has  power  to  enforce.  Thus,  both  the  Nagpur  

Municipal Corporation ('N.M.C' for short) constituted under  

the Corporation Act and the N.I.T constituted under the 1936  

Act were entrusted with the responsibility of the orderly  

development of the city of Nagpur.

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2.4 In  the  year  1966,  the  State  Government  enacted  the  Maharashtra Regional and Town Planning Act, 1966 ('T.P. Act'  

for short) inter alia, with a view to make provisions for  

planning the development and use of lands in the regions  

established  for  that  purpose  and  for  the  constitution  of  

Regional  Planning  Boards  thereof  for  the  creation  of  new  

towns by the Development Authorities. Section 2(15) of the  

T.P. Act defines the local authority, to include inter alia,  

the N.M.C. under the Corporation Act, 1948 and the N.I.T.  

constituted under the 1936 Act, which, on being permitted by  

the State were entitled to exercise the powers of a Planning  

Authority  under  the  T.P.  Act  for  any  area  under  its  

jurisdiction. Section 2(19) of the T.P. Act defines 'Planning  

Authority',  as  local  authority  which  includes  such  other  

authorities as prescribed under the Act. Under the T.P. Act,  

it is obligatory on the part of the Planning Authority to  

survey a region and prepare an existing land-use map and  

prepare a draft development plan for the area within its  

jurisdiction in accordance with a regional plan or in such  

other manner as may be prescribed. Section 22 of the T.P. Act  

provides that a development plan shall generally indicate the  

manner in which the use of the land in the area of a Planning  

Authority shall be regulated, and also indicate the manner in  

which the development of a plan shall be carried out. It is  

further  provided  in  Section  22  of  the  T.P.  Act  that  the  

development plan in particular shall provide for proposals  

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for allocating the use of land for the purposes, such as  

residential,  industrial,  commercial,  agricultural,  

recreational and proposals for designation of land for public  

purpose,  such  as  schools,  colleges  and  other  educational  

institutions,  medical  and  public  health  institutions,  

markets, social welfare and cultural institutions, theatres  

and  places  for  public  entertainment  or  public  assembly,  

museums, art galleries, religious building and Government and  

other public buildings as may from time to time be approved  

by  the  State  Government.  The  T.P.  Act  provides  for  

modification of the draft plan on receiving objections and  

suggestions from the general public. Section 31 of the T.P.  

Act provides for sanction to the draft development plan by  

the State Government and on the final development plan coming  

into force it is binding on the Planning Authority. Section  

42 of the T.P. Act provides that on the coming into operation  

of any plan or plans referred to Chapter III of T.P. Act, it  

shall be the duty of every Planning Authority to take such  

steps as may be necessary to carry out the provisions of such  

plan  or  plans.  Section  43  of  the  T.P.  Act  provides  

restriction on the development of a land after the date on  

which the declaration of intention to prepare a development  

plan for area is published in the Official Gazette. Thus,  

once declaration of intention to prepare draft development  

for any area or a notification specifying any undeveloped  

area as a notified area, or any area designated as a site for  

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a new town is published in the Official Gazette, no person  

shall change the use of the land or carry out any development  

of the land without the permission in writing of the Planning  

Authority except as permitted under proviso appended thereto.

2.5 By  a  notification  dated  6th October,  1967  the  State  Government  permitted  N.I.T.  to  exercise  the  powers  of  a  

Planning Authority under section 2(15) of the T.P. Act for  

the entire area under its jurisdiction.  

2.6 In accordance with the aforesaid provisions, the N.I.T.  on 12th December, 1972 published draft development plan of the  

city of Nagpur and the same was published in the Government  

Gazette  on  28th December,  1972.  After  considering  the  

objections  and  suggestions,  modifications  to  the  draft  

development plan were made on 20th October, 1973 and the same  

were published on 17th January, 1974. Subsequently the draft  

development  plans  as  further  modified  by  the  N.I.T.  were  

forwarded to the State Government for sanction under section  

30(1)  of  the  T.P.  Act  on  23rd October,  1974.  The  State  

Government extended the period for sanctioning such plan and  

ultimately with minor modification the draft development plan  

was  approved  by  the  State  Government.  Thus,  the  final  

development plan for the city of Nagpur, as sanctioned by the  

State Government, came into force on 3rd June, 1976.

3. It appears that final development plan came into effect  from 3rd June, 1976. Both N.M.C and N.I.T were granting  

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development permission in their respective areas and later,  

Government noticed the problems created due to the existence  

of two sets of regulations in the Municipal Corporation Area.  

For  the  said  reason,  Deputy  Secretary  to  the  Government,  

Urban Development Department Mantralaya, Bombay, vide letter  

dated 1st January, 1993 intimated the Municipal Commissioner,  

N.M.C, Nagpur about Government decision that draft byelaws  

published by the N.M.C u/s 169 of the T.P. Act read with  

Section 115 and other sections of the Corporation Act, 1948  

will not be operated and the N.M.C like N.I.T will follow the  

draft Development Control Rules and Building Byelaws prepared  

by the N.I.T as submitted to Government on 12th October, 1990  

which are under scrutiny of Government until further orders.  

The aforesaid letter being relevant reads as follows:-

“Confidential No.TPS 2490/1504/CR-101/UD-9 Urban Development Department Mantralaya, Bombay-400 032. Dated: 1st January, 1993.

To, The Municipal Commissioner, Nagpur Municipal Corporation, Nagpur.

Sub: Regulation of Building Control Activity    and implementation of Development Control Rules and Building Bye-Laws in Nagpur City.

Sir, The  Nagpur  Improvement  Trust  (N.I.T)  is  a  

planning Authority for the city of Nagpur in terms  of the Maharashtra Regional & Town Planning Act,  1956. Accordingly if prepared the development plan  alongwith  building  regulations  and  Development  Control  Rules  were  approved  by  Government  vide  

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Notification No.:TPS 2476/478/UD-5, dated the 3rd  July, 1976.

With a view to standing the I.C. rules and  building Bye-laws, Government had directed all the  Municipal  Corporations  i.e.  the  Planning  Authorities (Nagpur Improvement Trust in this case)  to undertake modification under Section 37 of the  Act  and  follow  standardized  Development  Control  Rules and Building byelaws and has forwarded the  proposal for government approval on 12th October,  1990. 2. The Nagpur Municipal Corporation (N.M.C) has  framed the building Byelaws under City of Nagpur  Corporation Act, 1948 which were approved by the  Government vide notification No.N.M.C 5365/33770,  dated the 24th June, 1965. Subsequently, the Nagpur  Municipal  Corporation  in  exercise  of  the  powers  conferred  under  section  159  of  the  Maharashtra  Regional Town Planning Act, 1966 read with Section  415  and  other  relevant  sections  of  the  City  of  Nagpur  Corporation  Act,  1948  published  draft  revised byelaws. Those byelaws have been sent to  Government  for  approval  vide  letter  No.GAD/18/G,  dated 24th February, 1987 and they are yet to be  approved. Both the Nagpur Municipal Corporation and  Nagpur Improvement Trust are granting Development  permission in their respective areas.

Thus  there  has  been  no  uniformity  in  the  matter of the (not eligible) There have been two  sets  of  regulations  operated  in  the  Municipal  Corporation area and has been admittedly creating  certain serious problems. 3. Government has examined the matter and after  careful examination is pleased to issue directions  under section 154 of the Maharashtra Regional Town  Planning Act, 1956 as follows:

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

Municipal Corporation under section 169 of the  Maharashtra Regional Town Planning Act, 1956  read with Section 115 and other sections of  the City of Nagpur Corporation Act 1948 will  not be operated.

ii) The Nagpur Municipal Corporation like Nagpur  Improvement Trust should follow the provisions  

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in  the  draft  Development  Control  Rules  and  Building  Byelaws  prepared  by  the  Nagpur  Improvement Trust as submitted to Government  on 12th October, 1990 which are under scrutiny  of Government until further orders.

4. The action taken may please be intimated to  government.

Yours faithfully,

(C.S.Pentabalekungri) Deputy Secretary to Government”  

4. Between 1973  and  1983 lands  were  leased  to  the  appellants  by  respondent  no.4  and  building  plans  were  

sanctioned by the N.M.C. The N.M.C was empowered to issue NOC  

during  the  said  period  as  evident  from  letter  dated  15th  

September, 1981 written by Circle Engineer (P1), N.I.T to  

Shri Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted  

below:

“OFFICE OF THE NAGPUR IMPROVEMENT TRUST

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

To

Shri Padmakar Joshi & Bros. Sitabuldi, Nagpur.

Subject:-No Objection Certificate for Petrol Pump. Reference:-Your application dated 29.6.1981.

With reference to above, I have to inform that  the Nagpur Municipal Corporation is empowered to  issue no objection certificate in conformity with  proposals of Development Plan of Nagpur.  You may,  

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therefore, approach Nagpur Municipal Corporation,  Nagpur in this matter.

Sd/- Circle Engineer (P1)

Nagpur Improvement Trust.”

From the aforesaid letter, it is clear that inspite of  

draft Development Plan which was published on 25th December,  

1972 followed by final Draft Plan on 3rd June, 1976, the N.I.T  abdicated its authority and delegated it in favour of N.M.C  

by stating that N.M.C is empowered to issue NOC in conformity  

with proposals of Development Plan of Nagpur.  

5. Respondent  nos.5  and  6  preferred  a  Public  Interest  Litigation under Article 226 of the Constitution of India  

before the Bombay High Court Bench at Nagpur inter alia,  

seeking  a  direction  to  N.M.C  and  N.I.T  to  remove  the  

structures standing on the lands owned by respondent no.4-

Trust  on  the  ground  that  the  same  are  contrary  to  the  

building regulations and the development plan sanctioned by  

the State Government under the T.P. Act. In the said writ  

petition, the impugned judgment was passed on 30th April, 2002  

as noticed in the opening paragraph.  

6. Learned counsel for the appellants while referring to  the  facts,  as  narrated  above,  submitted  that  the  writ  

petition was filed by respondent no.5 after inordinate delay  

to vent out their personal vendetta. The said writ petition  

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cannot  be  termed  to  be  Public  Interest  Litigation  as  

respondent nos.5 and 6 vented out their private dispute.  

7. Learned  counsel  for  the  appellants  further  submitted  that the said writ petition was primarily filed by respondent  

no.5 claiming to be a member of respondent no.4- Trust and  

respondent  no.6  a  member  of  the  locality  alleging  

mismanagement  by  the  said  Trust  in  leasing  lands  to  the  

appellants.  Apart from the aforesaid fact the respondent  

nos.5 and 6 did not disclose the nature of public interest  

involved. A personal grudge of respondent no.5 is clear as he  

was  claiming  to  be  a  member  of  the  Trust  which  was  not  

accepted by the Trust. It was further submitted that the writ  

petitioners having not approached the Court with clean hands  

and it being a private dispute between respondent no.5 and  

Trust the said writ petition was not maintainable. It is  

further  contended  that  in  absence  of  challenge  to  the  

sanctioned layout the High Court ought not to have declared  

them unauthorized and illegal.   

8. Learned counsel for the parties relied upon Section 2  (15) (c) (ii) (iii), Section 2(19), 20 and 154 of the T.P.  

Act.  Reliance was also placed on final Development Plan  

dated 3rd June, 1976 sanctioned by the State Government.  A  

photocopy of True copy of Resolution dated 3rd June, 1976  

enclosing copy of the notification issued under the letter  

head of N.I.T alongwith part Development Plan of Nagpur City  

was also produced separately for perusal.   

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

supported the case of respondent nos.5 and 6.  

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

11. It is not in dispute that the respondent no.4-Trust has  leased the property in favour of the appellants. Respondent  

no.5 was claiming to be a member of the Trust and Respondent  

no.6 claims to be a member of the locality and as noticed  

above they filed the writ petition before the High Court  

alleging mismanagement by the Trust in leasing lands to the  

appellants. But what we find is that the respondent no.4-

Trust is now supporting respondent nos.5 and 6.   

12. The  aforesaid  fact  clearly  shows  that  writ  petition  filed by respondent nos.5 and 6 was not bona fide but it was  

filed  only  on  account  of  personal  disputes  between  the  

parties i.e. inter se between the members of the respondent  

no.4-Trust  indirectly  affecting  the  appellants-tenants.  

Respondent  no.4-Trust  in  its  reply  before  the  High  Court  

supported the appellants but before this Court their learned  

counsel supported the case of respondent nos.5 and 6.

13. There is no dispute that no such notification was issued  by the State Government empowering the N.M.C to exercise the  

power  of  Planning  Authority.  By  letter  dated  1st January,  

1993, the State Government asked the N.M.C to follow the  

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draft  development  Rules  framed  by  the  N.I.T  there  being  

conflict between two draft Rules one drafted by the N.M.C and  

another by N.I.T. The State Government on 27th  February, 2002  

has rescinded/withdrawn the notification dated 6th October,  

1967 and permitted N.M.C to exercise the powers of a Planning  

Authority in the area under its jurisdiction except the areas  

in  which  the  N.I.T  has  improvement  schemes  as  more  

particularly set out in the said notification. Thus, prior to  

1967  N.M.C  was  the  authority  to  exercise  the  same  power  

sanctioning the plan and since 27th February, 2002 the N.M.C  

was again empowered to sanction the plan. During the period  

from 1967 till 2002, though N.I.T was the Planning Authority  

for the city of Nagpur, it abdicated its power, delegated it  

in favour of N.M.C and did not sanction any building plan  

which is also clear from letter dated 15th September, 1981  

issued  by  N.I.T  to  one  Shri  Padmakar  Joshi  &  Bros.,  

Sitabuldi, Nagpur as quoted above.  

14. True copies of notification dated 3rd June, 1976 and Part  Development Plan of Nagpur City have been produced wherein  

respondent  no.4-Gorakshan  Sabha  has  been  shown  within  the  

area  of  public  institutions  and  offices.  In  absence  of  

original coloured plan the true copy of the plan cannot be  

relied upon to hold any construction illegal in view of the  

fact that the N.M.C which sanctioned building plan supposed  

to have gone through the original plan.  

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15. In absence of the sanctioned plan, we are of the view  that  the  High  Court  was  not  justified  in  deciding  the  

disputed question of fact as to whether the building was  

constructed in accordance with Town Planning Scheme.  The  

High Court ought to have looked into the sanctioned plan to  

find  out  whether  it  was  for  office  (Karyalaya)  or  for  

residential  or  for  commercial  purpose  for  coming  to  a  

definite conclusion. Further, there being a long delay of  

eight years in filing the writ petition and in absence of  

challenge to the plan sanctioned by N.M.C, the High Court was  

not justified in entertaining the so called Public Interest  

Litigation filed by persons who had personal dispute with  

respondent no.4.

16. For the reasons aforesaid, we set aside the impugned  judgment and order dated 30th April, 2002 passed by the High  

Court of judicature at Bombay, Nagpur Bench in Writ Petition  

No.1485 of 1984 and dismiss the Writ Petition preferred by  

respondent nos.5 and 6. The appeal is allowed but there shall  

be no orders as to cost.  

…………………………………………….J.               (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………….J. (PRAFULLA C. PANT)

NEW DELHI;

FEBRUARY 12, 2015.

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