Deokisan Rambilas Sarda And Ors. vs Director Of Town Planning And Ors.
2004 Latest Caselaw 997 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Chandurkar, learned Counsel for the petitioners and Smt. Khade, learned Assistant Government Pleader for respondents No. 1 and 2.

2. By the present petition, the petitioners have challenged the Notification dated 5-1-1987 whereby the State Government has delegated its powers under Section 31 of the Maharashtra Regional and Town Planning Act, 1966, to respondent No. 1 - Director of Town Planning on the ground that such delegation of powers vide Section 151 of the Maharashtra Regional and Town Planning Act, 1966, is invalid.

3. Shri Chandurkar, learned counsel for the petitioners states that the Notification under which the Director of Town Planning - respondent No. 1 has sought to act, seeks, to confer powers on the Director at Sr. No. 5 of the Notification, under Section 31 of the Act, in respect of 'B' and 'C' Class Municipal Councils and for the Development Plan undertaken by Zilla Parishad as a Planning Authority.

4. In the present case, the issue pertains to Murtizapur Municipal Council which at the relevant time was Class 'B' Municipal Council. The delegation insofar as powers under Section 31 are concerned, is clearly not warranted by the provisions of Section 31 of the Maharashtra Regional and Town Planning Act, which is a provision providing for delegation, gives power to the State Government to delegate by Notification in the Official Gazette any power exercisable by it under the Act or the Rules made thereunder to any officer of the State Government, in such case and subject to such conditions, if any, as may be specified in such notification. It is submitted that the said section also gives power to the Director of Town Planning to delegate his powers exercisable under the Act to any subordinate subject to such conditions as may be specified. It is, therefore, submitted by the learned counsel for the petitioners that by very nature of the things. Inasmuch as, Section 31 requires the State Government to sanction the draft development plan after consulting the Director of Town Planning. It is clear that when the consultation is with the Director of Town Planning and the action is of the State Government, such powers under Section 31 could not be delegated to the Director of Town Planning. One of the essential requirements as found in Section 31 is that the plan has to be sanctioned only after consultation with the Director of Town Planning and by a process of delegation, the State Government could not do away with the consultation of the Director of Town Planning by delegating the powers to issue Notification under Section 31 to the said Director of Town Planning and in the circumstances, therefore, such delegation in the very nature of things is not warranted by the provisions of Town Planning Act. The action of Director in seeking to issue a Notification to reinstate and re-designate sites which are proposed to be deleted from reservation is clearly per se without authority and jurisdiction and therefore, the notification under which he is purported to act was a notification which was incapable of conferring power and Jurisdiction on the Director of Town Planning insofar as sanctioning of the draft Development plan is concerned. Shr. Chandurkar, learned counsel, therefore, contended that the issuance of notification by the Director of Town Planning dated 30-3-1988 is also invalid in law and needs to be quashed and set aside.

5. Smt. Khade, learned Assistant Government Pleader states that the grounds of challenge raised in the petition are ill-founded and the action of the Slate Government is just and proper and as per the provisions of the Maharashtra Regional and Town Planning Act, 1966. It is submitted that respondent No. 1 under law is required to verify the draft Development plan in his own authority and is also entitled to sanction the same as a delegate of respondent No. 1 - State Government since vide Notification dated 5-1-1987, the powers are delegated to respondent No. 1 under Section 31 of the Act by respondent No. 2. It is submitted that the consultation of respondent No. 1 in view of provisions of Section 31 of the Act is required as he is the expert in the matter of Town Planning. There is, therefore, no infraction of any right of the petitioners much less any fundamental right. The learned AGP further states that the provisions of Section 151 of the Act are clear and unambiguous which entitles the State Government to delegate any power exercisable by it under this Act or Rules thereunder to any officer of the State Government subject to such conditions, if any, as may be specified in such notification. Hence, the notification dated 5-1-1987 delegating power to the Director of Town Planning in respect of Section 31 of the Act is just and proper and is sustainable in law. Consequently, the notification dated 30-3-1987 issued by the Director of Town Planning docs not suffer from lack of jurisdiction and the action of the Director of Town planning, issuing such notification is perfectly legal and sustainable in law.

6. We have given our anxious thoughts to the various contentions canvassed by the learned counsel for the respective parties and perused the notification dated 5-1-1987 as well as relevant provisions of the Maharashtra Regional and Town Planning Act, 1966. It is no doubt true that so far as provisions of Section 151 of the Act are concerned, the State Government is entitled to delegate any power exercisable by it under this Act or Rules made thereunder to any officer of the State Government subject to such conditions, if any, as may be specified in such notification, whereby the powers are delegated. However, the delegation of powers by the State Government under Section 151 of the Act will have to be considered in the light of Scheme of provisions of Section 31 of the Act in order to consider the controversy in issue. Section 31(1) of the Act reads thus :

"31. (1) Subject to the provisions of this section, and not later than one year from the date of receipt of such plan from the planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper or return the draft Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan."

7. So far as the provision of sub-section (1) of Section 31 is concerned, it is not relevant for the controversy in issue. Section 31 provides specific scheme and procedure to be adopted by the State Government before according sanction to the draft Development plan. One of the requirement under such procedure is that the State Government is required to do consultation with the Director of Town Planning before issuing Notification in the Official Gazette granting sanction to the draft Development plan submitted to it. It is therefore, evident that the notification issued by the State Government in the Official Gazette, according sanction to the draft Development plan, without consulting the Director of Town Planning is invalid in law since as per the Scheme and procedure of Section 31 of the Act, such consultation with the Director by the State Government is necessary.

8. In the instant case, the State Government vide Notification dated 5-1- 1987 delegated its powers under Section 31 of the Act to the Director of Town Planning which, in our considered view, rendered the procedure of consultation, required to be done under the provisions of Section 31 of the Act, nugatory since the Director of Town Planning would be exercising power of the State Government under Section 31 of the Act and also would be issuing notification granting sanction to the draft Development plan, obviously giving go bye to the procedure of consultation and the Scheme of the provisions of Section 31 of the Act. Even the State Government is not competent to issue notification, according sanction to the draft Development plan without consulting the Director of Town Planning.

9. The Scheme contemplated and procedure evolved by the Legislature under Section 31 cannot be given go bye or cannot be rendered nugatory by the State Government while delegating powers to the Director of Town Planning in view of Section 151 of the Act. Such delegation undoubtedly would frustrate the very scheme of the provisions of Section 31 of the Act which, in our considered view, is impermissible in law.

10. In view of the facts and circumstances of the present case as well as in view of the Scheme of Section 31 of the Act, the contentions canvassed before us by the learned counsel Shri. Chandurkar, have merit. Since we have already held that the delegation of powers to the Director of Town Planning in regard to Section 31 of the Act by the State Government, for the reasons stated hereinabove, is impermissible in law, therefore, the subsequent notification issued by the Director of Town Planning, according sanction to the draft Development plan dated 30-3-1988 is also invalid and unsustainable in law. We hereby quash and set aside the notification dated 30-3-1988 issued by the Director of Town Planning.

11. Rule is made absolute in the above terms. There shall be no order as to costs.