Bombay High Court
Niradhar Swavalamban Samiti And Anr vs The Executive Engineer Town Planning … on 30 June, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:25996-DB WP-2225-2022.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2225 OF 2022
Niradhar Swavalamban Samiti & Anr. ...Petitioners
Versus
The Executive Engineer, Town Planning Dept.
Nashik Municipal Corporation & Ors. ...Respondents
_______
Mr. Sachin Punde i/b Anuj Tiwari for the Petitioners.
Mr. Subhash V. Gutte a/w Ms. Sayali Gutte for Respondent Nos. 1 to 3.
_______
CORAM : G. S. KULKARNI &
ARIF S. DOCTOR, JJ.
RESERVED ON : 24th JUNE 2025
PRONOUNCED ON : 30th JUNE 2025
Judgment (Per: Arif S. Doctor, J.)
The Parties
1. Petitioner No. 1 (‘the Petitioner’) is an educational trust established under the
provisions of the Maharashtra Public Trust Act, 1950, and runs schools for the
benefit of students who are from the economically weaker section of society. One
such school run by the Petitioner is ‘Nutan Prathamik VidyaMandir’, which is
stated to impart free education to about 568 students. Petitioner No. 2 is the
secretary of Petitioner No. 1.
2. Respondent No. 1 is the Executive Engineer, Town Planning Department,
which is an authority under the provisions of the Maharashtra Regional Town
Planning Act, 1966 (‘the MRTP Act’) and is the authority which grants
permissions for construction. Respondent No. 2 is the Commissioner, Nashik
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Municipal Corporation (‘NMC’), and Respondent No. 3 is the Administrative
Officer of the Department of Education of NMC.
The factual context in which the Petition arises:
3. Respondent No. 1 had, vide an order dated 23rd November 2020 (‘the
permission’), granted permission to the Petitioner for the construction of a
building (‘the said Building’) on a plot bearing Gat No. 60 situated near Shivar
Chunchle within the territorial limits of the Nashik Municipal Corporation (‘the
said plot’). It is not in dispute that the said plot is reserved for educational
purposes. The Petitioner, post the grant of the permission, commenced
construction and has completed construction up to the first floor.
4. However, on the basis of certain complaints addressed to Respondent No. 3
(the Administrative Officer of the Education Department, NMC) by the president
of one Ambika Mitra Mandal, stated to be a rival educational institute, Respondent
No. 3 has addressed a communication dated 30th July 2021, by which Respondent
No. 3 has inter alia stated that the construction of the said Building by the
Petitioner is illegal and that no primary or secondary school can be started on the
said plot.
5. The Petitioner responded to the aforesaid communication, inter alia,
informing Respondent No. 3 that the Petitioner has applied for all the permissions
and follow all the requisite rules prior to starting a primary or secondary school
from the said building. The Petitioner also questioned the authority of Respondent
No. 3 to refuse permission for construction of the said Building.
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6. However, on 25th August 2021, Respondent No. 3 addressed a further
communication to the Petitioner stating that under the provisions of the new
policy, permission of the State Government was necessary to start a new school.
Respondent No. 3 also called upon the Petitioner to file an Affidavit within 7 days
therefrom, stating as to what educational purpose the said Building would be used
for. The Petitioner was also put to notice that if the Petitioner failed to do so,
Respondent No. 3 would intimate the NMC to stop further construction of the
said Building.
7. The Petitioner, by its letter dated 17th September 2021, responded to the
above communication and reiterated that operations of the school would only be
started only after obtaining necessary permissions from the Education Department
of NMC and stated that such permissions could only be applied for after the
construction of the said Building was completed. Respondent No. 3, however,
thereafter issued a letter dated 21st September 2021 (‘the first impugned
communication’) calling upon the Petitioner to stop construction of the said
Building.
8. Subsequently, Respondent No. 1 also, vide an order dated 15th November
2021 (‘the impugned order’), stayed the operation of the permission granted and
called upon the Petitioner to submit a fresh proposal for a new construction.
9. The Petitioner responded to Respondent No. 1 inter alia, stating that such
suspension of the permission already granted was illegal and that Respondent No.
1 had failed to set out a single breach of the said permission committed by the
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Petitioners which would warrant such suspension of the permission already granted
and plans already sanctioned.
10. The Petitioner made a further representation to Respondent No. 3 on 19 th
January 2022, requesting Respondent No. 3 to reconsider the first impugned
communication. However, Respondent No. 3 refused to do so and vide a letter
dated 20th January 2022 (‘the second impugned communication’), confirmed the
stand taken by Respondent No. 3 in the first impugned communication.
11. It is on such backdrop that the Petitioners have filed the present Petition
seeking the following substantive reliefs:
“(a) Issue an appropriate Writ/Order, for quashing and setting aside the
Orders dated 21.09.2021 and 20.01.2022 issued by the Respondent No.3
the same being illegal, arbitrary and without jurisdiction.
(b) Issue an appropriate Writ/Order, for quashing and setting aside the Order
dated 15.11.2021 issued by the Respondent No.1 Executive Engineer,
Nashik Municipal Corporation the same being illegal, arbitrary and without
jurisdiction.”
Submissions on behalf of the Petitioners
12. Mr. Punde, Learned Counsel for the Petitioners, at the outset, submitted that
Respondent No. 3 had absolutely no authority in law to issue the impugned
communications dated 21st September 2021 and 20th January 2022. He submitted
that the construction being undertaken by the Petitioner had commenced pursuant
to the permission/order dated 23rd November 2020 issued by Respondent No. 1,
being the designated authority for granting permission for construction under the
provisions of the MRTP Act. He would urge that Respondent No. 3 was the
administrative officer of the Department of Education who had no jurisdiction or
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any role to play in the matter of construction and/or granting of building
permissions but was only concerned with the administration of the Education
Department of NMC. He thus submitted that Respondent No. 3 did not have any
authority in law to revoke building permission which had been validly issued by
Respondent No. 1.
13. Mr. Punde then pointed out from the Petition that Respondent No. 3 solely
on the basis of a complaint made by the president of one Ambika Mitra Mandal, a
rival educational institute, issued the impugned communications. He thus
submitted that not only was the issuance of the impugned communications beyond
the authority of Respondent No. 3 but also malafide. He therefore argued that the
impugned communications were clearly illegal.
14. Mr. Punde then pointed out that the proposal for development as made by
the Petitioners was in compliance with the provisions of the MRTP Act. He
submitted that it was only after considering the merits of such proposal,
Respondent No. 1 had granted the permission under Section 45 of the MRTP Act
and accordingly sanctioned the Petitioners’ plans and permitted the Petitioners to
commence construction of the said Building. He submitted that the issue of
granting permission to open a new school and/or to grant a recommendation of a
new school or shift an existing school was within the jurisdiction of the Deputy
Director of Education and/or the Education Officer and not the authority of the
Administrative Officer in the Education Department. He thus submitted that
Respondent No. 3 had clearly acted in excess of the authority vested in
Respondent No. 3.
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15. Mr. Punde then submitted that the construction of a building was a
prerequisite for transferring and/or shifting of the Petitioner’s school, and therefore
merely because some policy decision had been taken with regard to the shifting of
school, the same cannot bar the construction of a building by the Petitioners. He
reiterated that the construction being carried out was for a school and was therefore
in conformity with the reservation of the said plot. He would submit that any
decision regarding shifting the school could only be taken, after the completion of
the said Building and after all requisite permissions and approvals were obtained by
the Petitioner. He thus submitted that unless the construction of the building was
completed, the question of using the same for any purpose did not arise. He
submitted that, even though the same was explained and pointed out to
Respondent No. 3, Respondent No. 3 chose to ignore the same and issue the
impugned communications.
16. Mr. Punde thus submitted that the Petitioner having obtained permission
and having commenced construction in conformity with the purpose for which the
said plot was reserved, must therefore be allowed to complete the construction of
the said Building.
17. Mr. Punde then pointed out that even the impugned order dated 15th
November 2021, issued by Respondent No. 1, was completely silent and did not
inculcate a single breach of the provisions of the MRTP Act by the Petitioner or
any breach by the Petitioner of any conditions of the permission granted to the
Petitioner. He thus submitted that the impugned order was motivated solely on
account of communications addressed by the president of the Ambika Mitra
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Mandal to Respondent No. 3 and the consequent communications addressed by
Respondent No. 3 to Respondent No. 1.
18. He thus submitted that the aforesaid conduct of the Respondents was wholly
arbitrarily illegal and manifestly unjust. He submitted that the Petition was
required to be allowed.
Submissions on behalf of the Respondents
19. Mr. Subhash V. Gutte, Learned Counsel appearing on behalf of Respondent
Nos. 1 to 3, at the outset did not dispute that the said plot had been reserved for
educational purposes and that the Petitioner had been granted permission to carry
out construction thereon. He, however, submitted that, since such construction of
the said Building was for the purposes of a school, it was incumbent upon the
Petitioners to have obtained a No Objection Certificate (NOC) from the education
department prior to submitting the plans for construction, which he pointed out
had not been done. He thus submitted that the Petitioner had obtained the
permission from Respondent No. 1 based on a misrepresentation.
20. He then pointed out that, vide the communication dated 30 th July 2021,
Respondent No. 3, on directions from the Deputy Director of the Education
Department, had enquired into the complaints received from Ambika Mitra
Mandal and asked the Petitioners to submit an Affidavit stating what educational
purpose the said Building was being constructed for. However, instead of filing the
required Affidavit, the Petitioners submitted a casual reply and were thus in breach
of the mandatory requirement of stating the purpose of construction. He further
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submitted that, despite the misrepresentation on the part of the Petitioners,
Respondent No. 1 has merely stayed the permission granted to the Petitioners and
not revoked the same. He thus submitted that the impugned communications and
impugned order had been validly and legally issued and required no intervention
from this Court.
Analysis and Conclusion:
21. After having heard Learned Counsel for the Parties, we have no hesitation in
holding that the Writ Petition deserves to be allowed for the following reasons:
A. There is no dispute to the fact that (i) Respondent No. 1 is the authority
under the provisions of the MRTP Act who grants permission for
construction; (ii) the Petitioner was granted permission by Respondent No.
1 to carry out construction, which permission was valid and subsisting; and
(iii) the construction carried out by Respondent No. 1 was not in breach of
the permission granted by Respondent No. 1 nor under any of the
provisions of the MRTP Act or any other provisions of law.
B. It is also undisputed that Respondent No. 3 is the authority concerned with
the aspect of administration of the education department and not in any
manner concerned with or authorised to either issue and/or revoke building
permissions issued by Respondent No. 1. Thus, Respondent No. 3 does not
have the power or authority in law to issue directions pertaining to the
grant, refusal, or cessation of building permissions which have been issued
by Respondent No. 1. Thus, Respondent No. 3 has, in issuing the
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impugned communications acted in excess of its statutory authority, and the
impugned communications are thus an egregious overreach by Respondent
No. 3 of the authority vested in Respondent No. 3 by law.
C. Also, the impugned order passed by Respondent No. 1 staying the earlier
permission granted is also ex facie unsustainable. The impugned order does
not set out a single breach by the Petitioner of any provision of law or any
condition of the permission dated 23rd November 2020 granted to the
Petitioner. In our view, if Respondent No. 1 was to revoke the permission
granted, it was incumbent upon Respondent No. 1 to have specifically set
out the reasons for doing so, which Respondent No. 1 has not even so much
as attempted to do. The impugned communications have been issued by
Respondent No. 1 clearly at the instance of Respondent No. 3, which
therefore establishes that Respondent No. 1 has acted in a patently arbitrary,
illegal, and unfair manner, as also in complete abdication of its statutory
duties.
D. We also find that the principles of natural justice have been violated by
Respondent No. 1 since the Petitioner was not even afforded a reasonable
opportunity to establish how there was no breach by the Petitioner of any
provision of law or of any condition of the permission granted by
Respondent No. 1.
22. While parting, we may observe that the law confers distinct authority and
jurisdictions to the authorities functioning under the MRTP Act and the
Education Acts. There is no question of such compartmentalized jurisdiction and
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authority being usurped by the Education authority which has nothing to do with
construction permissions. If the law is to permit such inter-meddling into the
authority of one department into another department who are differently governed
under law, a situation of a total chaos would arise, not recognized by law. This is
one such case that the planning authority which had initially acted lawfully to grant
building permission to the petitioners is being influenced by the education
department. This is wholly impermissible looked from any angle.
23. Hence, for the aforesaid reasons, the Writ Petition is allowed in terms of
prayer clauses (a) and (b) as extracted above.
24. No Costs.
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