Nagpur : Apex Court sets aside HC order, allows SLPs filed by Buty family, NIT, Abhyankar Road shopkeepers and developer.In a big blow to Sitabuldi main road shopkeepers, the Supreme Court on Monday set aside the order of Nagpur bench of Bombay High Court dated September 16, 2016 and removed all legal impediments in construction of Glocal Mall in the heart of Sitabuldi.
The Apex Court while allowing the special leave petitions (SLPs) filed by landowners Buty family, Nagpur Improvement Trust (NIT), developer Goel Ganga, and Abhyankar Road shopkeepers, upheld their major argument that Buty Mahal Street Scheme had merged into subsequent Development Plan and hence NIT was right in approving the layout plan.
The Apex Court bench consisting of Justice A K Sikri, Justice Ashok Bhushan and Justice M R Shah noted the inordinate delay in completion of the scheme and opposition of only 18 shopkeepers to entire project. The Supreme Court also noted anxiety of Abhyankar Road shopkeepers, who are in a lurch due to this legal battle, and totally disagreed with stance taken by the High Court virtually quashing the sanction to project. The Supreme Court has held that in case of a conflict between the Development Plan and the Town Planning Scheme, the Development Plan shall have supremacy over the scheme.
The High Court order was a major setback for the mega commercial complex spread over 8-acre land belonging to Buty family in the heart of Sitabuldi. The developer had promised to accommodate big retailers, existing shopkeepers and even hawkers along with earmerked parking for 1,500 cars, 1,800 two-wheelers, and 1,800 bicycles to revive the sagging fortunes of market, but faced stiff resistence from Sitabuldi shopkeepers.
The High Court had stated that ongoing construction of Glocal Mall, which was contrary to provisions of Buty Mahal Street Scheme by excluding internal road, would be at the sole risk of developer. The court had made it clear that layout plan sanctioned on May 15, 2012, building permit granted on June 27, 2012 and revised on December 11, 2014 were contrary to the provisions of the Scheme and also in breach of the terms of the compromise dated April 8, 2002 before the Apex Court.
The High Court had allowed petition filed by 18 prominent shopkeepers and professionals of Sitabuldi challenging the demolition notices issued to them by NIT, and held that impugned notices were based upon the sanctioned plan and the building permit, which did not contain the provision for internal road.
After widening of Abhyankar Road under IRDP, the land-owners of the area Buty family decided to develop the said property and roped in private developer. The High Court had dismissed the petition of tenant-shopkeepers. The aggrieved shopkeepers had challenged the order before the Supreme Court and later the matter was settled and a scheme in the nature of compromise with the tenants of Buty took place and it was placed before the Supreme Court on April 8, 2002. Later, a big commercial complex Glocal was floated by M/s Goel Ganga Infrastructure and Real Estate Private Ltd in which shopkeepers were accommodated and a big parking facility was promised for all shops. The petitioner-shopkeepers challenged the NIT notice and alleged that NIT was coercing them to arrive at compromise.
In its special leave petition, NIT strongly justified the construction of Glocal Mall as per sanctioned plan and stated that State Government on the request of land-owners agreed for making entire area of Buty Mahal as one single reconstituted plot to enable them to accommodate the tenants. Responsibility of making adequate arrangement for parking and widening of road was left to land-owners. The tenants in whose interest the entire scheme came to be modified have no right to insist upon the internal roads proposed in the scheme in 1964, since the reconstituted plot was in the interest of one and all.
Since Abhyankar Road itself was widened from 12 meters to 24 meters under IRDP, the purpose of internal roads felt in 1964, no longer survived as the traffic congestion was eased due to road widening. Moreover, NIT claimed, the tenants left out in 1961 scheme are also being accommodated. Existing shops are in dilapidated and shabby condition and considering the growing prosperity and importance of the city it has become necessary to provide a more sophisticated spacious, decongested shopping area to the residents in Nagpur city which would be free of traffic congestion, NIT stated while challenging the High Court’s order.
According to developer, the tenant/shopkeepers have no locus to agitate upon internal roads and he has left the front margin of 12 meters on Sitabuldi main road, front margin of 6 meters on Abhyankar Road, and 9 meters road for entry from Sitabuldi main road and tried his best to accommodate the tenant on last premium ground floor of the proposed Glocal complex. Besides, the NIT scheme formulated before MRTP Act was enacted, merged into the Development Plan sanctioned by State Government in 1976 and 2000, it was stated. The scheme has evolved from 1960 to 2015 and undergone several changes like reconstitution of single plot, accommodating tenants, widening of Abhyankar Road taking into account series of changes and development during last 55 years. However, the High Court had rejected the contention stating that evolution of the Scheme can not be ‘de hors’ (out of) the provisions of law and that after coming into force of the Development Plan, the said Scheme became non-existent or was completely eclipsed.
Senior Adv S K Mishra and Adv Satyajit Desai appeared for the NIT. Senior Advocate Mukul Rohtagi, Adv Sunil Manohar and Adv Akshay Naik represented developer while Adv Venkita Subramoniam T R represented Buty family members. Adv Mahul M Gupta, Adv Virat Mishra, and Adv Sachin Agrawal represented Abhayankar Road shopkeepers. Advocates Gagan Sanghi, Rukhmini Bobde, Charuhas Dharmadhikari represented main road shopkeepers.
ALSO READ : Maharashtra Govt to develop Textile Park in Koradi
