Case Note & Summary
The petitioners, Kartiki Jagdish Pawar and Sanjyoti Jagdish Pawar, purchased a plot in Nagpur from Dashrath Balaji Kalambe, who had originally bought it from Paradise Co-operative Housing Society in 1991. They applied to the Nagpur Improvement Trust (NIT) for sanction of a residential building plan. The NIT, through its Building Engineer (West), issued a communication dated 30.09.2022 refusing sanction solely on the ground that a prohibitory order was passed in Public Interest Litigation (PIL) 40/2013 by a Co-ordinate Bench of the Bombay High Court. The petitioners challenged this refusal by filing a writ petition. The court noted that the NIT did not examine the application on its merits or point out any specific violation of the PIL order. The court held that the prohibitory order in PIL 40/2013 does not create an absolute bar on construction; the authority must independently consider each application and pass a reasoned order. The court directed the NIT to consider the petitioners' application afresh, without being influenced by the PIL order, and to pass a reasoned order within four weeks. The petition was allowed, and the impugned communication was quashed.
Headnote
A) Town Planning - Building Plan Sanction - Prohibitory Order in PIL - The Nagpur Improvement Trust refused to sanction a residential building plan citing a prohibitory order in PIL 40/2013. The Court held that the prohibitory order does not create an absolute bar and the authority must consider each application on its own merits, subject to compliance with statutory requirements. (Paras 3-5)
Issue of Consideration
Whether the Nagpur Improvement Trust can refuse to sanction a building plan solely on the ground of a prohibitory order passed in a Public Interest Litigation, without independently assessing the application on its merits.
Final Decision
The petition is allowed. The impugned communication dated 30.09.2022 is quashed and set aside. The respondents are directed to consider the application of the petitioners for sanction of the building plan afresh, without being influenced by the prohibitory order in PIL 40/2013, and pass a reasoned order within four weeks from the date of the order.
Law Points
- Prohibitory order in PIL does not create an absolute bar on construction
- authority must consider each application on its own merits
- subject to compliance with statutory requirements
Case Details
2023 LawText (BOM) (01) 279
Writ Petition 8285 of 2022
Rohit B. Deo, Y. G. Khobragade
Mr. P. R. Agrawal for petitioners, Mr. G. A. Kunte for respondents
Kartiki D/o. Jagdish Pawar and Smt. Sanjyoti W/o. Jagdish Pawar
Nagpur Improvement Trust through its Chairman and Building Engineer (West), Nagpur Improvement Trust
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Nature of Litigation
Writ petition challenging refusal of building plan sanction by Nagpur Improvement Trust
Remedy Sought
Petitioners sought quashing of communication dated 30.09.2022 and direction to NIT to sanction the building plan
Filing Reason
NIT refused to sanction building plan solely on ground of prohibitory order in PIL 40/2013
Issues
Whether the Nagpur Improvement Trust can refuse to sanction a building plan solely on the ground of a prohibitory order passed in a Public Interest Litigation, without independently assessing the application on its merits.
Submissions/Arguments
Petitioners argued that the prohibitory order in PIL 40/2013 does not create an absolute bar on construction and that NIT must consider the application on its own merits.
Respondents did not file any reply and relied on the prohibitory order.
Ratio Decidendi
A prohibitory order in a Public Interest Litigation does not create an absolute bar on construction; the authority must independently consider each application on its merits and pass a reasoned order, subject to compliance with statutory requirements.
Judgment Excerpts
The challenge in the present petition is to the order/communication dated 30.09.2022 issued by respondent 2-Building Engineer (West), Nagpur Improvement Trust (for short, ‘NIT’), whereby the respondents did not accord sanction to the residential house construction plan because of the operation of prohibitory order in Public Interest Litigation (PIL) 40/2013 passed by Co-ordinate Bench of this Court.
The facts of the present case lie in narrow compass.
The prohibitory order in PIL 40/2013 does not create an absolute bar on construction; the authority must independently consider each application on its merits.
Procedural History
The petitioners filed a writ petition before the Bombay High Court, Nagpur Bench, challenging the communication dated 30.09.2022 by which the Nagpur Improvement Trust refused to sanction their building plan. The court heard the matter and delivered judgment on 14.02.2023.
