Pravin Chhannalal Shah And Ors. vs State Of Maharashtra And Ors.
2002 Latest Caselaw 752 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition the petitioners have challenged the Government Notification No. TPS, 1899/606/CR139/99/UD-13, dated 27-6-2000 as ultra vires the provisions of Section 37 of the Maharashtra Regional Town Planning Act (hereinafter referred to as "the Act").

2. The facts giving rise to the present petition stated briefly are that the petitioners own certain lands in the precincts of Pune Corporation. On 5-2-1987 revised final development plan was made by Pune Municipal Corporation to which sanction was duly accorded by the State Government under Section 31 of the Act. Thereafter the Government of Maharashtra directed Pune Municipal Corporation under Section 37(1) of the Act to publish the notification showing certain lands in village Ghorpadi in the map changing them from the zone of agricultural to zone of residential lands. Since the petitioners were not affected by this order under Section 37(1) no action was taken by the petitioners. Thereafter on 27-6-2000 the Government was pleased to issue said notification. While giving sanction however certain conditions were imposed by the State one of the condition was that the Director of Town Planning was to make plans layout etc. and subject to those plans and layouts development proposals can be sanctioned. When these conditions were imposed according to the petitioners no hearing to any person concerned was given. Exercising these powers under this condition the Director of Town Planning imposed certain reservations on the lands belonging to the petitioners. These reservations as indicated by the Director were such as will not permit development of their lands by the petitioners. Petitioners have therefore challenged this action of issue of notification dated 27-6-2000 on several grounds mentioned in the petition.

3. The first submission made on behalf of the petitioners is that Section 37(2) of the Act does not contemplate delegation of powers by the State. The Government of Maharashtra therefore had no jurisdiction to delegate power of imposing any condition or levying any reservations while granting sanction under Section 37(2) to a development plan. According to the learned counsel the words "subject to such conditions as it may be deem fit" appearing in Section 37(2) does empower Government of Maharashtra to impose certain condition while sanctioning modification. However this right or power which enabled the State to levy conditions cannot be delegated to the Director as he has no role to play in the scheme of 37(2).

4. The learned counsel then contended that putting reservation in respect of land which was earlier in the agricultural zone is putting a condition which amounts to modification in the proposed plan submitted under Section 37(1) and therefore a decision has to be of the State Government and not of the Director. Then without prejudice to this contention it was submitted by the learned counsel that assuming that what has been delegated to the Director is not a power under

Section 37(2) but only an authority to lay plans, make layouts, sanction roads, service roads, open spaces etc. on the master plan or revised master plan or revised development plan as the case may be as submitted to the Government by the Planning Authority. According to the learned counsel what is required to be done by the Director is therefore within the plan as submitted by the Planning Authority. The Planning Authority has submitted plan as directed by the State Government converting lands from agricultural zone into residential zone. Any change in this conversion or demarcation either as agricultural zone or residential zone would amount to change or modification as contemplated by Section 37(2) and that cannot be done. All that can be done by a Director exercising powers conferred upon him by Section 37(2) is to make layouts, lay plans, construction of amenities etc. keeping furnishing of master plan in tact. To elaborate the submission is whether there are roads or lands marked the Director may make plans in relation thereto. He cannot assert the power of modification to development plan under Section 37(2) which is conferred only upon the State Government.

5. These submissions were countered by respondents and by saying that these conditions are put by the State itself and therefore there is no question of any delegation and the conditions are liable to be obeyed in toto. However nothing is produced on record to show that the conditions mentioned in the notification of June 2000 were made at the instance of the State Government only. There is intrinsic evidence in the notification itself which goes to show that the matter was left to the discretion of the Director. The condition reads as under:

"2. Director of Town Planning, Maharashtra State, Pune shall make comprehensive layouts of the abovesaid lands from every village, incorporating roads, service roads, open spaces, basic amenities. The development proposals from owner/developer shall be considered by the Pune Municipal Corporation only in conformity with the above comprehensive layouts."

It will be seen from the notification that the Government of Maharashtra in exercise of its powers under Section 37(2) of the Act sanctioned the modification of zoning of the lands from certain villages being changed from agricultural zone to residential zone subject to certain conditions mentioned in thereafter. Condition No. 2 is the second condition which is quoted above. It will thus be seen that the zoning has been changed from agricultural to residential by the State Government. What it means in fact is that changed from agricultural zone shall always be there but within the residential zone. The Director of Town Planning may make comprehensive layouts of the abovesaid lands that is lands zoning of which has been changed from agricultural to residential from every village incorporated roads, service roads, open spaces, basic amenities and it is then ordered that the development proposals from owners/developers shall be considered by the Pune Municipal Corporation only in conformity of the above comprehensive layout viz. layout made by the Director for those lands zoning of which has been changed incorporating roads, service roads, open spaces, basic amenities, etc. as mentioned in condition therein. He cannot in exercise of these powers make reservations of residential zone which is not done by the State itself in the said notification. In these circumstances without going into the validity of

the notification of June, 2000 this petition can be disposed of with the following directions:

 i)       The notification conclusively sanctions zoning lands from certain village including village of the petitioners from agricultural to residential; 
 

 ii)      The zoning is final. The conversion of the petitioners' lands into residential is final. Condition No. 2 means and empowers Director of Town Planning to make comprehensive layouts incorporating roads, service roads, open spaces, basic amenities etc. on the above said lands zoning to which remains in tact; 
 

 iii)    The Pune Municipal Corporation shall consider the development plans, proposals made by various owners or developers only in conformity with the above comprehensive layouts as made by the Director; 
 

 iv)     The Director or the Municipal Corporation as Planning Authority shall not reject the development proposal only on the ground that though land is residential zone as contemplated by the notification dated 27-6-2000; the Director having made certain reservations on that piece of land development is not permissible; 
 

 v)      If any part of any of the lands belonging to the petitioners is shown under the comprehensive layouts incorporating roads, service roads, open spaces, basic amenities etc. the petitioners will be entitled to TDR as contemplated by rules in that behalf; 
 

 vi)     If   the   Director   has   issued   any   such   reservation   by   any communication it shall be considered as non est as it could not have been issued by the Director. With these observations writ petition is disposed of.