Bombay High Court
Govind Bajirao Navpute vs The State Of Maharashtra And ... on 5 August, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1981 OF 2016
Govind Bajirao Navpute,
age: 57 years, Occ: Agriculture,
R/o Chikalthana,
Tq. and District Aurangabad. Petitioner
Versus
01 The State of Maharashtra,
through Urban Development
Department, Mantralaya,
Mumbai 400 032.
02 The Secretary,
Urban Development Department-1,
Mantralaya,
Mumbai-400 032.
03 The Director of Town Planning,
Central Building,
Pune.
04 Joint Director of Town Planning,
Aurangabad.
05 Dy. Director of Town Planning,
Development Plan Special Unit,
Aurangabad.
06 Aurangabad Municipal Corporation,
Aurangabad.
07 The Mayor,
Municipal Corporation,
Aurangabad.
08 The Municipal Commissioner,
Aurangabad Municipal Corporation,
Aurangabad. Respondents
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Mr.D.P.Palodkar, advocate for the petitioners in W.Ps. No.1981,
1982, 3058 and 7435 of 2016.
Mr.V.D.Sapkal, advocate for petitioners in W.Ps. No.2398, 2399,
2400, 2401, 3248 of 2016.
Mr.Pradeep Deshmukh, advocate with Mr.Y.P.Deshmukh, advocate
for petitioners in W.Ps. No.3579 and 3580 of 2016.
Mr.V.B.Kale, advocate for the petitioner in W.P.No.2930 of 2016.
Mr.A.B.Girase, Government Pleader for Respondents No.1 to 5.
Mr.Vijaysingh Thorat, Senior Counsel i/by Shri J.R.Shah, advocate
for Respondents No.6 and 8.
Mr.A.M.Karad, advocate for Respondent No.7.
ig CORAM : R.M.BORDE &
K.L.WADANE, JJ.
Reserved on : 20th July, 2016
Pronounced on : 5th August, 2016.
JUDGMENT (Per R.M.Borde, J.):
1 Heard. Rule. Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 Respective petitioners are questioning legality and
validity of the notification dated 04.02.2016 published in the
Official Gazette under Section 21(1) of the Maharashtra Regional &
Town Planning Act, 1966 (for short, "the MRTP Act"), calling
objections in respect of draft Development Plan prepared and
published by the planning authority within a period of sixty days
from the date of the order. It is recorded in the notification that
in view of Section 30 of the MRTP Act, revised development plan
would be submitted for approval to the State Government and
before its submission to the State Government, the objections and
claims would be considered.
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03 Petitioners are also questioning general body resolution
adopted by the Municipal Corporation on 28.01.2016 thereby
forming and approving revised proposals and submitting the same
in the nature of draft development plan and resolving to submit
the same for publication to the State Government. Petitioners are
also seeking to quash notification dated 04.02.2016 and the
resolution adopted by the General Body of the Municipal
Corporation on 28.01.2016. Petitioners are also praying for setting
aside of the orders dated 29.03.2016 issued by Respondent No.3
i.e. Director of Town Planning, Pune under delegated powers
exercisable by the State Government granting extension for a
period of one year in exercise of powers under sub-section (1) of
Section 26 of the Act of 1966.
4 Before its conversion to the Municipal Corporation,
there existed a Municipal Council for Aurangabad city and final
development plan for Aurangabad Municipal Council area was
published in the 1975, which was revised in the year 2002.
Aurangabad Municipal Corporation came to be established vide
Government notification dated 03.12.1982 with effect from
08.12.1982. At the time of establishment of the Municipal
Corporation in the year 1982, 18 villages were included in the
Municipal limits, which is an "additional area" forming part of the
Municipal Corporation. A development plan for "additional area"
came to be published in the Official Gazette on 15.10.1991 effective
from 19.11.1991. At a later point of time, Cidco area was denotified
and as a result thereof an area to the extent of 209.88 hectares
was included within the jurisdiction of the Aurangabad Municipal
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Corporation, and revision in respect of final development plan
adopted in the year 1999 includes preparation of development
plan for Cidco denotified area as well as Shivajinagar area. A
declaration of intention under Section 23(1) read with Section 31 of
the MRTP Act was published to prepare revised development plan
for "additional area", Cidco denotified area, etc., on 20.01.2004 and
18.02.2006. On 01.09.2007, request was tendered to the State
Government by Aurangabad Municipal Corporation to establish a
special unit of Town Planning Department for preparation of
revised development plan. A declaration under Section 23(1) read
with Section 38 of the MRTP Act came to be published in the
Official Gazette to prepare revised development plan for the area
denotified by Cidco, Aurangabad and newly added Shivaji Nagar
area on 14.10.2010. The State Government has consented for
establishment of Special Planning Unit for the purposes of
preparation of draft development plan. A special unit of Town
Planning Department working at Sangli-Miraj-Kupwad Corporation
after completion of work at the said place, came to be transferred
for completion of job at Aurangabad Municipal Corporation.
5 A second declaration under Section 23(1) read with
Sections 34 and 38 of the MRTP Act came to be published in the
Official Gazette declaring intention to prepare Revised Development
Plan for additional area i.e. Cidco denotified area and newly added
Shivajinagar area, on 07.02.2013. On 05.02.2013, the Town
Planning Officer came to be appointed for the purposes of
preparation of development plan. A survey and preparation of
existing-land-use map under Section 25 of the MRTP Act, was
completed and submitted to Aurangabad Municipal Corporation on
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01.08.2014.
6 It needs to be mentioned that under the provisions of
Section 26(1) of the Act, time limit for preparation of development
plan is prescribed as two years and since it was due to expire on
06.02.2015 and extension under the said provision was needed,
the Town Planning Officer sent reminders to Aurangabad
Municipal Corporation to seek extension, as required under
Section 26 of the MRTP Act, for preparation of draft development
plan and publishing notice thereof by issuing communications on
03.02.2015, 19.02.2015 and 01.08.2015. Although the draft
development plan was ready, it was not published within
prescribed limit. As such, writ petition came to be presented by
one Suresh Uttamrao Pawar, being Writ Petition No.6660 of 2015,
seeking a direction to publish the draft development plan under
the provisions of the MRTP Act.
7 An affidavit-in-reply was presented in the said writ
petition by the Town Planing authority on behalf of Respondents
wherein assurance was given that the time limit, as provided under
the Act would be strictly adhered to for publishing draft
development plan. It was further submitted that the work of
development plan is in progress and would be handed over to
Aurangabad Municipal Corporation for publication within
stipulated time limit. The writ petition ultimately came to be
disposed of after the draft development plan came to be published
in the Official Gazette on 06.02.2016. It is further contended in
the petition that on 31.10.2015, draft development plan was
actually handed over to Aurangabad Municipal Corporation for
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publication by the Town Planning Officer i.e. Respondent No.5.
The meeting of the General Body of Aurangabad Municipal
Corporation was convened on 20.12.2015. It was pointed out that
draft development plan prepared under Section 26(1) of MRTP Act
is received in a sealed cover on 26.10.2015 and further steps are
required to be taken. It was also noticed that time frame
prescribed for publication of notice has already lapsed and,
therefore, extension is required to be solicited from the State
Government for a period of 07.02.2015 till 06.02.2016. The
General Body meeting of the Corporation was adjourned without
passing any resolution on Subject No.269 and adjourned meeting
was held on 29.01.2016. The subject relating to draft development
plan was discussed in the General Body. On perusal of the
proceedings of the meeting, it is evident that draft development
plan submitted by the Town Planning Officer was supplied to all
the Corporators, public at large, media and objections raised by
various individuals and Corporators were considered. Each
Corporator carried out spot inspection of the areas, which are
prescribed as reserved sites or affected by the development. The
Members raised concern in respect of serious irregularities in the
plan and the General Body was called upon to redress the
grievances, to consider suggestions and objections and to prepare
new plan in place of one submitted by the Town Planner. The
modifications were suggested, which includes deletion of number of
reservations, as proposed by the Town Planning Officer, reduction
in the width of roads, etc. It was also resolved by the General Body
to claim extension of time limit under Section 26 from the State
Government for publication of notice. The General Body of the
Municipal Corporation resolved to prepare a new development plan
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in place of one submitted by the Town Planning Officer. It was
resolved to include the reservations which were proposed to be
deleted by the General Body in the residential zone. The mistakes
occurring in the existing-land-use map were also directed to be
corrected. It was also resolved to prepare altogether new draft
development plan (Map and DP Report) and to publish the same in
contemplation of grant of extension of period under Section 26 by
the State Government from 07.02.2015 to 06.02.2016.
8 It is pointed out by the learned Counsel appearing for
petitioners that the General Body of the Municipal Corporation
proposed deletion of 361 reservations so also 43 roads and direct
imposition of around 79 new reservations. A newly prepared draft
development proposal together with a newly drawn map came to be
prepared and intimation was given to the Government for
publication of notice under Section 26(1) of the MRTP Act on
03.02.2016 in the Official Gazette. On 04.02.2016, notice under
Section 26(1) of MRTP Act came to be published in the Official
Gazette calling objections in respect of draft development plan from
the concerned. After publication of the draft in the Official
Gazette, an order came to be issued by the State Government on
29.03.2016 granting extension of period for preparation of draft
development plan from 07.02.2015 to 06.08.2015 and by another
order issued on the same date, the period was further extended
from 07.08.2015 to 06.02.2016. The petitioner raises following
objections:
(I) Whether the scheme of Chapter III of
Maharashtra Regional & Town Planning Act, 1966 as
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well as the legislative intent excludes elected
representatives in the process of preparation of draft
development plan;
(II) Whether the elected representatives of the
Corporation can be permitted to substitute their own
proposals in the draft development plan in place of the
proposals forwarded by the authority appointed under
the MRTP Act.
(III)
The third objection is regarding lapsing of
limitation. Whether the delegated authority can grant
ex post facto extension for preparation and publication
of draft development plan under Section 26 contrary to
the provisions of the Act. The violation of prescription
of time limit provides for the consequences and as
such, it was impermissible for the delegated authority
to grant extension thereby overlooking the mandatory
provision prescribing adoption of different mode in the
matter of preparation of draft development plan in the
event of violation of prescription of time frame ; and
(IV) The fourth objection is in respect of potential
impact on the development of the City as a result of
tinkering of the development proposals in large scale at
the instance of elected representatives. The tinkering
is to such a large extent that 361 public amenities
prescribed under the draft development proposals by
the authority have been deleted, 43 proposals in
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respect of roads made by the authority have been
deleted. The alignment of 24 roads, which were
prescribed by the authority in a particular mode have
been substantially changed and 500 hectares land
covered by Forest and Water bodies has been directed
to be converted into yellow zone at the instance of
Corporators and a departure, in that regard, has been
made from the proposals prepared by the Town
Planning Officer.
A preliminary objection has been raised on behalf of
Respondents in respect of maintainability of the petition. It is
contended that process of preparing development plan or any
amendment thereof is held to be legislative process and the Court,
under Article 226 of the Constitution, is enjoined to examine only
compliance of legal provisions under the MRTP Act. The merits of
development plan are best left to the mechanism provided under
the Act. It is contended that the draft development plan proposal,
at this stage, is incomplete and inchoate and is to undergo the
process provided under Sections 28 and 31 of the MRTP Act. It is
impossible, at this stage, to anticipate as to what the final product
would be. The contentions raised by petitioners are at best
speculative and need not be examined by this Court till draft
development plan is finally sanctioned under Section 31 of the
MRTP Act. It is contended that the planning authority is entitled
to take into consideration suggestions and objections received from
the public in response to publication of intention vide Rules 3 and
4 of the Maharashtra Development Plans Rules, 1970 and
participation of the elected representatives cannot be excluded in
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the process of preparation of draft development plan. In order to
counter the objection relating to lapsing of limitation, it is
contended that the period can be extended by the State
Government and that there is no provision for prior sanction of
extension of such time. At times, extensions are sought and
granted and such ex post facto extensions are sought and granted
after a considerable passage of time. Such ex post facto extensions
are not only permissible, but also do not violate any statutory law.
It is contended that the petitions are premature since the State
Government, under Section 31 of the MRTP Act, can grant sanction
to:
(i) To the whole plan or any part thereof;
(ii) Modify the plan either wholly or in part;
(iii) Return the draft development plan to the
Planning Authority for modification;
(iv) Direct the planning authority to prepare fresh
development plan;
10 It is contended on behalf of Respondents that Section
21 of the MRTP Act has no applicability to the case in hand and
even otherwise, appointment of an officer under Section 21 of the
MRTP Act, in any case, is a discretionary power vested in the State
Government and no mandamus for issuance of such direction can
be sought. It is an enabling provision and cannot be invoked since
the extensions, as required, are granted. Lastly, it is contended
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that preparation of development plan is a legislative process and it
is not permissible to arrest it in the midst.
11 The Maharashtra Regional & Town Planning Act, 1966,
is enacted with an object to make provision for planning the
development and use of land in the Regions established for that
purpose and for constitution of Regional Planning Boards therefor,
to make better provisions for the preparation of development plans
with a view to ensuring that the town planning schemes are made
in a proper manner and their execution is made effective; to
provide for the creation of new towns by means of Development
Authorities; to make provisions for the compulsory acquisition of
land required for public purposes in respect of the Development
plans and the purposes connected with the matters aforesaid.
12 Certain provisions of the MRTP Act need to be
considered. Section 2(9) of the Act defines "Development plan"
means a plan for the development or re-development of the area
within the jurisdiction of a Planning Authority and includes
revision of a development plan and proposals of a special planning
Authority for development of land within its jurisdiction. The "local
authority", as defined under Section 2(15) in relation to
Aurangabad Municipal Corporation, would be the Municipal
Corporation constituted under the Bombay Provincial Municipal
Corporations Act, 1949. Section 2(19) defines "Planning Authority"
means a local authority. Chapter III of the Act of 1966 includes
provisions of Sections 21 to 42, referring to Development Plan.
Chapter III (a) includes Sections 21 and 22, 22A, which refer to
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Development plan and Contents of Development Plan as well as
Modification of substantial nature. Whereas, Chapter III (b) is
inclusive of Sections 23 to 31; and Chapter III {c} is inclusive of
provisions of Sections 32 to 42. Chapter III (b) relates to Procedure
to be followed in preparing and sanctioning Development Plans,
whereas, Chapter III {c} relates to Provisions for preparation of
interim Development Plans, plans for areas of comprehensive
development, etc. and includes Section 38 relating to Revision of
Development Plan, which Section is relevant for the purposes of
these petitions. Section 21(1) is applicable with reference to
preparation of development plan after commencement of the Act,
whereas, sub-section (2) of Section 21 mandates that the Planning
Authority constituted after the commencement of the Act, shall,
not later than three years from the date of its constitution, declare
its intention to prepare a draft Development plan, and publish a
notice of such preparation in the Official Gazette and in such other
manner, as may be prescribed and submit the draft Development
plan to the State Government for sanction. Sub-section (3) of
Section 21 provides that, on an application made by any Planning
Authority, the State Government may, having regard to the
permissible period specified in the preceding sections, from time to
time, by order in writing and for adequate reasons to be specified
in such order, extend such period. Sub-section (4) of Section 21
refers to consequences in the event of failure of the Planning
Authority to declare the intention to prepare development plan
under Section 23 or its failure to submit draft development plan to
the State Government for sanction within the period specified or
within extended period. Sub-section (4A) of Section 21 is relevant
for the purpose of decision of this petition, which reads as under:
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(4A) If at any stage of preparation of the draft
Development plan, the time fixed under sections 25, 26
and 30 for doing anything specified in the said sections
lapses, the Planning Authority shall be deemed to have
failed to perform its duty imposed upon it by or under
the provisions of this Act and any work remaining to be
done upto the stage of submission of the draft
Development plan under section 30 shall be completed
by the concerned Divisional Joint Director or Deputy
Director of Town Planning and Valuation Department or
an officer nominated by him not below the rank of an
Assistant Director of Town Planning, as the case may
be. The said officer shall exercise all the powers and
perform all the duties of a Planning Authority which
may be necessary for the purpose of preparing a
Development plan and submitting it to the State
Government for sanction and may, notwithstanding
anything contained in any other law relating to the
funds of the Planning Authority, recover the cost
thereof from such funds:
Provided that, the said Officer shall exercise all
the powers and perform all the duties of the Planning
Authority within such period as may be specified by an
order by the Director of Town Planning, having regard to
the stage of preparation of Development plan:
Provided further that, the period specified
under the first proviso shall not exceed the original
period stipulated under the relevant section.
13 Section 22 of the Act deals with Contents of
Development Plan. Section 22A deals with Modification of a
substantial nature, whereas, Section 23 provides for declaration of
intention to prepare Development Plan. Section 23 reads thus:
23 Declaration of intention to prepare
Development Plan:
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(1) A Planning Authority shall, before carrying out a
survey and preparing an existing land use map of the
area as provided in section 21, by a resolution make a
declaration of its intention to prepare a Development
plan; and shall dispatch a copy of such resolution with
a copy of a plan showing only the boundary of the
entire area proposed to be included in the Development
Plan to the State Government, the said Officer shall
also make a similar declaration and submit a copy
thereof to the State Government. The Planning
Authority or the said Officer as the case may be, shall
also publish a notice of such declaration in the Official
Gazette, and also in one or more local newspapers in
the prescribed manner, inviting suggestions or
objections from the public within a period of not less
than sixty days from the publication of the notice in
the Official Gazette.
(2) A copy of the aforesaid plan shall be open to the
inspection of the public at all reasonable hours at the
head office of the Planning Authority and Local
Authority.
14 Section 24 deals with Town Planning Officer, which
reads as under:
24 Town Planning Officer:
Every Planning Authority shall, at the time of
declaration of intention to prepare Development plan,
resolve to appoint a person possessing such
qualification as may be prescribed, to be the Town
Planning Officer for carrying out survey of the area of a
Planning Authority, preparing an existing-land-use
map there of and formulating proposals of a
Development plan of that area for submission to the
Planning Authority. There after, the Planning
Authority shall, with the previous sanction of the State
Government, appoint such person as a Town Planning
Officer.
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15 Whereas, Section 26 relates to Preparation and
publication of notice of draft Development Plan, which reads thus:
26 Preparation and publication of notice of draft
Development Plan:
(1) Subject to the provisions of section 21, a
Planning Authority, or the said officer shall, not later
than two years from the date of notice published under
section 23, prepare a draft Development plan and
publish a notice in the Official Gazette and in such
other manner as may be determined by it stating that
the Development Plan has been prepared. The notice
shall state the name of the place where a copy thereof
shall be available for inspection by the public and that
copies thereof or extracts therefrom certified to be
correct shall be available for sale to the public at a
reasonable price, and inviting objections and
suggestions within a period of Thirty days from the
date of notice in the Official Gazette.
Provided that, in case of a Municipal
Corporation having population of ten lakhs or more, as
per the latest census, the period for inviting objections
and suggestions shall be sixty days from the date of
notice in the Official Gazette.
Provided further that, the State Government
may, on an application of the Planning Authority, by an
order in writing, and for reasons to be recorded from
time to time, extend the period for preparation and
publication of notice of the draft Development Plan.
Provided also that, the period so extended shall
not in any case, exceed-
(i) twenty-four months, in the aggregate, in case of
Municipal Corporation having population of one crore
or more, as per the latest census figures;
(ii) twelve months, in the aggregate, in case of
Municipal Corporation having population of ten lakhs
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or more but less than one crore, as per the latest
census figures; and
(iii) six months, in the aggregate, in any other case.
(2) The notice shall also state that copies of the
following particulars in relation to the Draft
Development plan are also available for inspection by
the public and copies thereof, or extracts therefrom
certified to be correct, are also available for sale to the
public at a reasonable price at the place so named,
namely:-
(i) a report on the existing-land-use map and the
surveys carried out for the purpose of preparation of
(ii)
the draft plan;
maps, charts and a report explaining the
provisions of the draft Development plan;
(ii-a) map showing the planning units or sectors
unalterable till the Development Plan is revised;
(iii) regulations for enforcing the provisions of the
draft Development plan and explaining the manner in
which the permission for developing any land may be
obtained from the Planning Authority or the said
officer, as the case may be;
(iv) a report of the stages of development by which it
is proposed to meet any obligations imposed on the
Planning Authority by the draft Development plan;
(v) an approximate estimate of the cost involved in
acquisition of lands required by the Planning Authority
for the public purposes and also cost of works, as may
be necessary.
16 Section 27 of the Act provides that the Provision of
Regional Plan shall be considered while preparing draft
Development Plan.
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17 Section 28 of the Act deals with Objections to the draft
Development Plan, which reads thus:
28 Objections to draft Development Plan:
(1) Subject to the provisions of this Act, if within the
time allowed under sub-section (1) of section 26 any
person communicates in writing to the Planning
Authority or the said officer any suggestions or
objection relating to the draft Development plan, the
Planning Authority or the said officer may, after
considering the report of the Planning Committee
under sub-section (2) and the suggestions or objections
received by it or him, modify or change the plan in such
manner as it or he thinks fit.
(2) The Planning Authority or the said Officer shall
forward all objections and suggestions received by it to
a Planning Committee consisting of three memberso f
the Standing Committee of the Planning Authority and
such additional number of persons, not exceeding four,
appointed by the Director of Town Planning having
special knowledge or practical experience of matters
relating to town and country planning or environment
or relating to both for consideration and report:
Provided that, where a Planning Authority is not
a local authority, the Planning Committee shall consist
of such members as the Planning Authority may
determine:
Provided further that, where the Divisional
Joint Director or Deputy Director of the Town Planning
and Valuation Development or an Officer nominated by
him under sub-section(4) of section 21, as the case may
be, exercises the powers and performs the duties of the
Planning Authority, then the Planning Committee may
consist of such Divisional Joint Director or Deputy
Director or, as the case may be, of such officer.
Provided also that, where the State Government
or any person or persons appointed under section 162,
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exercise the powers and perform the duties of a
Planning Authority or Development Authority, then the
Planning Committee may consist of the State
Government or the person or persons so appointed:
Provided also that, the Planning Committee
contemplated in the preceding provisos shall also
consist of such additional number of persons, not
exceeding four, appointed by the Director of Town
Planning having special knowledge or practical
experience of matters relating to town and country
planning or environment or relating to both.
(3) The Planning Committee, shall, on receipt of
objections and suggestions, make such enquiry as it
may consider necessary, and give a reasonable
opportunity of being heard to any person including
representatives of Government departments who may
have filed any objection or made any suggestions in
respect of the draft Development plan, and after
considering the same, the Planning Committee shall
submit its report to the Planning Authority or as the
case may be, the said Officer within a period of two
months from the date of its appointment or within such
extended period as the Planning Authority may sepcify.
(4) Not later than two months after the receipt of the
report of the Planning Committee, the Planning
Authority or the said officer shall consider the report
including the objections and suggestions received by it
or him and make a list of such modifications or
changes and carry out the same in the draft
Development Plan, as it or he may consider proper.
The Planning Authority or the said officer shall
publish, in the Official Gazette and in not less than two
local newspapers, the list of modifications or changes
made in the draft Development plan for information of
the public.
18 Section 30 of the Act provides for Submission of draft
Development Plan to the State Government. Section 31 of the Act
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relates to sanction to the draft Development Plan by the State
Government. The State Government is empowered under Section
31 to sanction the draft Development Plan submitted to it for the
whole area and particularly for any part thereof either without any
modifications or subject to such modification, 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.
Section 34 of the Act relates to Preparation of
Development Plan for additional area. Whereas, Section 38 relates
to Revision of Development Plan, which reads thus:
38 Revision of Development Plan.
At least once in twenty years from the date on
which a Development plan has come into operation,
and where a Development plan is sanctioned in parts,
then at least once in twenty years from the date on
which the last part has come into operation, a
Planning Authority may and shall at any time when so
directed by the State Government, revise the
Development Plan either wholly, or the parts separately
after carrying out, if necessary, a fresh survey and
preparing an existing land-use map of the area within
its jurisdiction, and the provisions of sections 22, 23,
24, 25, 26, 27, 28, 30 and 31 shall, so far as they can
be made applicable, apply in respect of such revision of
the Development plan.
20 The first objection raised by the learned Senior
Counsel, appearing for Respondents, is that preparation of
development plan is a legislative process and as such, it is
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impermissible to arrest the process and this Court, under Article
226 of the Constitution, is enjoined to examine only compliance of
legal provisions under the MRTP Act. Reliance is placed on the
judgment in the matter of Sundarjas Kanyalal Bhatija & others
Vs. Collector, Thane, Maharashtra & others, reported in 1989 (3)
SCC 396.
21 In the aforesaid matter, the State Government
issued a draft notification under Section 3(3) of the Bombay
Provincial Corporation Act, 1949, proposing to form a municipal
corporation viz. 'Kalyan Corporation' by merging municipal areas
of Kalyan, Ambarnath, Dombivali and Ulhasnagar. Several
objections and representations against the proposal were made.
Sindhis, who are predominant in Ulhasnagar, objected to the
resolution and on consideration of the objection, the proposal was
withdrawn and area of Ulhasnagar came to be excluded. Residents
of Ambarnath Municipal area moved the High Court under Article
226, challenging the notification issued under Section 3(2) on the
ground of violation of Article 14 of the Constitution. The
Federation of Sindhis as well as some other interested persons
were allowed to intervene. The High Court, in stead of quashing
the notification under Section 3(2), directed the Government to
publish the draft notification for reconsideration of the matter and
given liberty to the interveners and other interested persons to
submit their representations. Though neither the State
Government nor the Kalyan City Corporation appealed against the
judgment of the High Court, the interveners tendered appeals to
the Supreme Court. While dealing with the issue raised in the
matter, the Supreme Court, in paragraphs no.27 and 28 of the
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judgment, has observed thus:
"27 Reverting to the case, we find that the
conclusion of the High Court as to the need to
reconsider the proposal to form the Corporation
has neither the attraction of logic nor the
support of law. It must be noted that the
function of the government in establishing a
Corporation under the Act is neither executive
nor administrative. Counsel for the appellants
was right in his submission that it is legislative
process indeed. No judicial duty is laid on the
government in discharge of the statutory duties.
The only question to be examined is whether
the statutory provisions have been complied
with. If they are complied with, then, the court
could say no more. In the present case, the
government did publish the proposal by a draft
notification and also considered the
representations received. It was only thereafter,
a decision was taken to exclude Ulhasnagar for
the time being. That decision became final
when it was notified under Section 3(2). The
court cannot sit in judgment over such
decision. It cannot lay down norms for the
exercise of that power. It cannot substitute
even "its juster will for theirs".
28 Equally, the rule issued by the High
Court to hear the parties is untenable. The
government in the exercise of its powers under
Section 3 is not subject to the rules of natural
justice any more than is legislature itself. The
rules of natural justice are not applicable to
legislative action plenary or subordinate. The
procedural requirement of hearing is not
implied in the exercise of legislative powers
unless hearing was expressly prescribed. The
High Court, therefore, was in error in directing
the government to hear the parties who are not
entitled to be heard under law."
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22 In paragraph no.14 of the judgment, the Supreme
Court has expressed displeasure in respect of decision of the High
Court since it has disregarded a binding decision of the co-ordinate
bench of the same Court as well as of the Supreme Court. In the
matter of Promoters & Builders Assn. Of Pune Vs. Pune
Municipal Corpn. & others, reported in (2007) 6 SCC 143,
wherein challenge was in respect of Development Control
Regulations. In paragraphs no.5 and 6 of the judgment, the
Supreme Court has observed thus:
"5
Making of DCR or amendments thereof
are legislative functions. Therefore, Section 37
has to be viewed as repository of legislative
powers for effecting amendments to DCR. That
legislative power of amending DCR is delegated
to the State Government. As we have already
pointed out, the true interpretation of Section
37(2) permits the State Government to make
necessary modifications or put conditions while
granting sanction. In Section 37(2), the
legislature has not intended to provide for a
public hearing before according sanction. The
procedure for making such amendment is
provided in Section 37. Delegated legislation
cannot be questioned for violating the
principles of natural justice in its making
except when the statute itself provides for that
requirement. Where the legislature has not
chosen to provide for any notice or hearing, no
one can insist upon it and it is not permissible
to read natural justice into such legislative
activity. Moreover, a provision for 'such inquiry
as it may consider necessary' by a subordinate
legislating body is generally an enabling
provision to facilitate the subordinate
legislating body to obtain relevant information
from any source and it is not intended to vest
any right in anybody. (Union of India V.
Cynamide India Ltd., SCC paras 5 and 27. See
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generally H.S.S.K. Niyami V. Union of India and
Canara Bank V. Debasis Das.) While exercising
legislative functions, unless unreasonableness
or arbitrariness is pointed out, it is not open for
the Court to interfere. (See generally ONGC V.
Assn. Of Natural Gas Consuming Industries of
Gujarat.) Therefore, the view adopted by the
High Court does not appear to be correct.
6 DCR are framed under Section 158 of the
Act. Rules framed under the provisions of a
statute form part of the statute. (See General
Officer Commanding-in-Chief V. Dr. Subhash
Chandra Yadav, SCC para 14.) In other words,
DCR have statutory force. It is also a settled
position of law that there could be no
'promissory estoppel' against a statute. (A.P.
Pollution Control Board II V. Prof. M.V.Nayadu,
SCC para 69, STO v. Shree Durga Oil Mills,
SCC paras 21 and 22 and Sharma Transport V.
Govt. of A.P., SCC paras 13 to 24.) Therefore,
the High Court again went wrong by invoking
the principle of 'promissory estoppel' to allow
the petition filed by the respondents herein."
23 It is contended by learned Senior Counsel appearing
for Respondents that the Development Control Regulations
prepared by the Municipal Corporation are part of the draft
Development Plan. Sub-section (2) of Section 26 provides that
along with draft development plan, copies or extracts of the
documents specified in clauses (i) to (v) of sub-section (2) are
required to be made available to the public at reasonable price.
Clause (iii) provides that regulations for enforcing the provisions of
draft Development plan and explaining the manner in which the
permission for developing any land may be obtained from the
Planning Authority or the said officer, as the case may be. In
substance, the Development Plan Regulations are required to be
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made available under sub-section (2) of Section 26 together with
draft development plan for the public. It is, thus, contended that
since the Development Control Regulations are specified in sub-
section (2) of Section 26, it forms part of draft development plan,
which is required to be finalised under Section 31 by the State
Government. It is contended that since preparation of
Development Control Regulations is held to be legislative process,
the proposals included as draft development plans and its
preparation shall also have to be construed as a legislative process.
In answer to the contentions raised as above, learned
Counsel for petitioners, placing reliance on the judgment of the
Supreme Court in the matter of Union of India & another Vs.
Cynamide Chemicals Limited and another, reported in (1987) 2
SCC 720, contends that as laid down by the Supreme Court, two
tests are required to be applied to ascertain whether the process is
legislative. The distinction between the two has usually been
expressed as 'one between the general and the particular'. A
legislative act is the creation and promulgation of general rule of
conduct without reference to particular cases; an administrative
act is the making and issue of a specific direction or the
application of a general rule to a particular case in accordance
with the requirements of policy. It is contended that with the
proliferation of delegated legislation, there is a tendency for the line
between legislation and administration to vanish into an illusion.
Administrative, quasi-judicial decisions tend to merge in legislative
activity and, conversely, legislative activity tends to fade into and
present an appearance of an administrative or quasi-judicial
activity. Any attempt to draw a distinct line between legislative and
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administrative functions, it has been said, is 'difficult in theory
and impossible in practice'. In paragraph 7 of the judgment, the
Supreme Court has laid down the proposition, which reads thus:
"7 The third observation we wish to make is,
price fixation is more in the nature of a
legislative activity than any other. It is true
that, with the proliferation of delegated
legislation, there is a tendency for the line
between legislation and administration to
vanish into an illusion. Administrative, quasi-
judicial decisions tend to merge in legislative
activity and, conversely, legislative activity
tends to fade into and present an appearance of
an administrative or quasi-judicial activity. Any
attempt to draw a distinct line between
legislative and administrative functions, it has
been said, is 'difficult in theory and impossible
in practice'. Though difficult, it is necessary
that the line must sometimes be drawn as
different legal rights and consequences may
ensue. The distinction between the two has
usually been expressed as 'one between the
general and the particular'. A legislative act is
the creation and promulgation of a general rule
of conduct without reference to particular
cases; an administrative act is the making and
issue of a specific direction or the application of
a general rule to a particular case in
accordance with the requirements of policy'.
Legislation is the process of formulating a
general rule of conduct without reference to
particular cases and usually operating in
future; administration is the process of
performing particular acts, of issuing particular
orders or of making decisions which apply
general rules to particular cases. It has also
been said: "Rule-making is normally directed
toward the formulation of requirements having
a general application to all members of a
broadly identifiable class" while, "an
adjudication, on the other hand, applies to
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specific individuals or situations". But, this is
only a broad distinction, not necessarily always
true. Administration and administrative
adjudication may also be of general application
and there may be legislation of particular
application only. That is not ruled out. Again,
adjudication determines past and present facts
and declares rights and liabilities while
legislation indicates the future course of action.
Adjudication is determinative of the past and
the present while legislation is indicative of the
future. The object of the rule, the reach of its
application, the rights and obligations arising
out of it, its intended effect on past, present and
future events, its form, the manner of its
promulgation are some factors which may help
in drawing the line between legislative and non-
legislative acts. ......"
25 The development plan consists of (1) Plan, and (2)
Development Control Rules. When the properties belonging to an
individual are allocated for various purposes and uses, i.e.
residential, industrial, agricultural, commercial and proposals for
designation of land for various purposes i.e. reservation for public
amenities, etc., such details are included and classified in "Plan".
The preparation of Development Plan Rules is altogether a different
process. Survey of lands, preparation of Existing-Land- Use Map
is not required to be taken into consideration for framing
Development Control Rules. The Development Control Rules relate
to regulating grant of permissions, user of the property and the
manner thereof.
26 In the instant matter, Development Control
Regulations are not part of the proposals published by the
Corporation as a draft Development Plan. The Development
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Control Regulations have not been placed for inspection of the
public, as provided under Section 26(2). Reliance placed by the
Respondents on the judgment in the matter of Vidarbha Heritage
Society, Nagpur Vs. State of Maharashtra, reported in 2006 (4)
Bombay Cases Reporter 577, to contend that preparation of
Development Plan is a legislative process, is misplaced since no
such proposition has been laid down by the Division Bench.
Similarly, there can be no parallel in the matter of Sundarjas
Kanyalal Bhatija (cited supra) and in the instant matter. In the
reported judgment, the challenge was in respect of formation of a
Municipal Corporation, whereas, in the instant matter, the
challenge raised is in respect of Draft Development Plan. There
can be no parallel since the facts giving rise to the decision in
Sundarjas Kanyalal Bhatija's matter are totally different and as
such, ratio laid down therein cannot be applied to the instant
matter.
27 Even otherwise, it would be within the frame work of
Article 226 of the Constitution of India as well as within the
jurisdiction of this Court to examine whether compliance of legal
provisions under MRTP Act is made in making a draft Development
Plan and publishing the same.
28 Firstly, what has been published can be said to be a
draft Development Plan in observance of the provisions of
Maharashtra Regional & Town Planning Act, 1966, is open for
scrutiny. Whether the notification declaring the draft Development
Plan on 6.02.2016 is outside competence of the Planning Authority
and in consonance with the provisions of Act of 1966, is open for
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scrutiny and to contend that the process is legislative one, will not
be an impediment for considering whether the legal provisions
under MRTP Act have been satisfied or not.
PRESCRIPTION OF TIME LIMIT UNDER SECTION 26 OF THE
M.R.T.P. ACT AND SECOND PROVISO THEREUNDER WHETHER
MANDATORY AND EX POST FACTO SANCTION EXTENDING
THE TIME LIMIT, WHETHER WITHIN CONTEMPLATION OF
LAW.
Section 23 of the Act directs the Planning Authority
that before carrying out a survey and preparing an existing-land-
use map of the area as provided under Section 21, by a resolution
make a declaration of its intention to prepare a development plan
and the said Resolution is necessary to be published in the
Government Gazette and also in one or more local news paper with
a view to invite suggestions and objections from public within a
period not less than sixty days from publication of notice in the
Official Gazette. Section 26(1) provides a time limit for the
planning authority or the said officer from the date of notice
published under Section 23 to prepare a draft Development Plan
and to publish a notice, in that regard, in Official Gazette. The
second proviso to Section 26(1) empowers the State Government on
an application of the planning authority to grant extension by an
order in writing and for the reasons to be recorded from time to
time and such extension in case of Municipal Corporation having
population of 10 lakhs and more can be up to twelve months. In
the instant matter, notice, as contemplated under Section 23 of the
Act, declaring the intention of the planning authority to prepare a
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draft development plan was published under Section 23(1) and 38
of the MRTP Act, 1966 on 26.05.2010. The notice declares
intention of the Planning Authority to prepare development plan for
the area denotified by Cidco, Aurangabad, recently added
Shivajinagar area and revised development plan of additional area
of Aurangabad Municipal Corporation. According to the petitioner,
once declaration is made under Section 23 by the Planning
Authority, the period prescribed under Section 26 commences and
as a result of failure of the planning authority to prepare
development plan within two years, as provided under Section 26,
the consequences provided under Section 21(4A) shall follow and
further process of preparation of development plan and submission
thereof to the State Government shall be carried out by the
Authority prescribed under Section 21(4A).
30 It is the contention of Respondents that since there
was no reference to Section 24 of the Act, which provides for
preparation of development plan for additional area in the notice
issued in the year 2010, the Municipal Corporation in its General
Body meeting adopted a Resolution on 18.05.2011, to declare the
intention to prepare a development plan under Section 23(1) read
with Sections 34 and 38 of the MRTP Act and published its
intention on 07.02.2013 in the Official Gazette. It is contended that
due to technical reasons, no further process was undertaken in
pursuance to declaration under Section 23 and Resolution was
adopted for declaration of fresh intention and said Resolution
adopted on 18.05.2011 has attained finality. There was no
challenge to the said Resolution or the declaration of intention
under Section 23 of the Act and as such, the said issue cannot be
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raised to frustrate the whole process. In this context, reliance is
placed on the judgment in the matter of Raipur Development
Authority Vs. Anupam Sahkari Griha Nirman Samiti and
others, reported in (2000) 4 SCC 357. In the reported matter,
there were two notices published under Section 50 of the M.P.
Town and Country Development Act, 1973, which provide for
preparation of town development scheme. Sub-section (2) of
Section 50 of the M.P. Act provides for declaration of intention to
make a scheme and such declaration is required to be published in
the Official Gazette not later than thirty days from the date of
publication of such intention to make the scheme. In the reported
matter, the declaration was published on 30.03.1985 and
06.09.1985. While dealing with the objection raised in respect of
declaration of two intentions, the Supreme Court has observed
that there would not be any ill consequential effect on account of
two such publications. Even if after the publication of the first
intention, either it is given a go-by or otherwise on rethinking, if
another such intention is published, it would be a valid notice
when it is published under sub-section (2). If that be so, the
period of limitation would start from the latter such publication.
31 The publication under sub-section (3) of Section 50,
which was made in the reported matter on 04.09.1987, was within
a period of two years from the date of publication of intention dated
06.09.1985 under sub-section (2) of Section 50 and on that
ground, the draft scheme was held not to be invalid.
32 In the instant matter, even if it is assumed that the
decision taken by the Municipal Corporation of publishing a
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declaration under Section 23 by adopting a Resolution on
18.05.2011, has attained finality and the consequent declaration
issued on 07.02.2013 is held to be valid, whether prescription of
time frame provided under Section 26 is adhered to and by virtue
of not adhering to the time frame, the consequences provided
under Section 21(4A) are attracted. Since the declaration of
intention to prepare a draft development plan was published by the
Corporation, in the instant matter, on 07.02.2013, the period
prescribed in the preparation and publication of draft development
plan and publication of notice in the Official Gazette stands lapsed
on completion of two years in view of mandate of Section 26 (1) of
the MRTP Act. The second proviso to Section 26(1) empowers the
State Government, on an application of the Planning Authority, by
an order in writing and for the reasons to be recorded from time to
time, extend period of preparation and publication of notice of draft
development plan. The third proviso, which came to be added by
Maharashtra Act No.38 of 2014 with effect from 04.10.2013,
provides that the extension, as provided, is permissible, however, it
shall not exceed twelve months in aggregate, in case of Municipal
Corporation having population of ten lakhs or more but less than
one crore, as per the latest census figures. The provision, prior to
amendment, provided for outer limit of six months. It is a matter
of record that the Town Planning Officer reminded the Municipal
Corporation of lapsing of period of two year, as provided under
Section 26(1), on 06,.02.2015, by communications dated
03.02.2015, 19.05.2015 and 01.08.2015 and requested the
Planning Authority to seek extension, as required under Section 26
from the State Government.
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33 In Writ Petition No.6660/2015, presented by one
Suresh Pawar, seeking directions for publication of the draft
development plan, an affidavit-in-reply was presented on behalf of
the Respondents contending therein that steps would be taken
within the period prescribed under Section 26 of the Act and the
draft Development Plan would be published. However, it appears
from record that the General Body of the Municipal Corporation,
for the first time, adopted a Resolution approving extension of
period of one year from 07.02.2015 till 06.02.2016 for publication of
the draft development plan. In fact, the law contemplates of
making a request to the State Government for grant of such
extension. However, on reading text of the Resolution, it appears
that the General Body of the Municipal Corporation itself adopted
a Resolution approving extension of the period for themselves.
Even if it is assumed that there is some error in recording the
minutes, for the first time, a request was made to the State
Government i.e. the Director of Town Planning for grant of ex post
facto sanction for draft development plan and publication of notice,
on 18.03.2016 and pursuance of such request, there were two
separate orders passed by the said authority granting extension of
six months each i.e. total period of one year, on 29.03.2016. In the
meanwhile, the draft development plan was published in the
Official Gazette on 04.02.2016. It is, thus, evident that on the date
of publication of the draft development plan, there was no
extension granted within contemplation of provisions of Section
26(1) for preparation and publication of the draft development
plan.
34 It is the contention of the Respondents that the State
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Government is envisaged with the powers to grant extension of
period and it would be permissible for the State Government to
grant extension even after lapsing of period, as provided under
Section 26(1). In substance, it is contended that it is permissible
for the State Government to grant ex post facto sanction to the
extension of period. Learned Counsel appearing for respondents
contend that the prescription in the proviso relating to grant of
extension shall have to be construed directory and it will not have
an effect of nullifying proceedings of publication of draft
development plan. There is no provision for prior sanction to the
extension of time limit, as prescribed.
35 It is contended by the petitioner that legislative intent
behind prescribing the time limit would be frustrated if the State or
concerned Authorities are permitted to grant extension ex post
facto without considering mandate of provisions of the Act. It is
evident on reading text of the provisions of Section 26, that it
mandates that the Planning Authority or the said Officer shall, not
later than two years from the date of notice published under
section 23, prepare a draft development plan and publish a notice
in the Official Gazette and in such other manner, as may be
determined by it stating that the Development plan has been
prepared. No doubt, the second proviso empowers the State
Government to grant extension of time, however, by virtue of third
proviso, limitation is prescribed on the powers of the State
Government in respect of grant of extension and outer limit of
twelve months is prescribed in case of a Municipal Corporation
having population of ten lakhs or more, but less than one crore. It
is, thus, clear that the law mandates preparation and publication
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of the draft development plan within a period of two years from the
date of publication of intention under Section 21 and the said
period can be extended by one year in aggregate. The provisions of
Section 26 and the prescription of time limit provided therein for
preparation and publication of draft development plan shall have
to be read with Section 21(4A) of the MRTP Act. Section 21(4A)
prescribes the consequences for failure of the Planning Authority
to adhere to the time frame provided under Section 26. It is
provided in Section 21(4A) that if, at any stage of preparation of the
draft development plan, the time fixed under sections 25, 26 and
30 for doing anything specified in the said sections lapses, the
Planning Authority shall be deemed to have failed to perform its
duty imposed upon it by or under the provisions of this Act and
any work remaining to be done up to the stage of submission of the
draft Development plan under section 30 shall be completed by the
concerned Divisional Joint Director or Deputy Director of Town
Planning and Valuation Department or an officer nominated by
him not below the rank of an Assistant Director of Town Planning,
as the case may be. The said officer shall exercise all the powers
and perform all the duties of a Planning Authority which may be
necessary for the purpose of preparing a Development plan and
submitting it to the State Government for sanction and may,
notwithstanding anything contained in any other law relating to
the funds of the Planning Authority, recover the cost thereof from
such funds. It is, thus, clear that once the limitation provided
under Section 26(1) for preparation and publication of notice of
draft development plan lapses, the consequences, as provided
under sub-section (4A) of Section 21 shall follow and it shall have
to be deemed that the Planning Authority has failed to perform the
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duties, imposed upon it and the work remaining to be done up to
the stage of submission of draft development plan shall have to be
transferred to the authority prescribed under sub-section (4A) of
Section 21.
36 In the instant matter, notice under Section 23 of the
Act, declaring the intention to prepare a development plan, was
published on 07.02.2013 and as such, the period provided for
preparation and publication of notice of draft development plan
came to an end on 06.02.2015. Until this date, the draft
development plan was not prepared by the Planning Authority.
The officer appointed by the Planning Authority with the approval
of the State Government, submitted the draft development plan in
sealed cover to the Municipal Corporation for publication on
25.03.2015 i.e. after lapsing of the period provided under Section
26(1). The request for grant of extension of time, as provided
under the second proviso, was itself tendered after lapse of the
extended period i.e. application for extension was tendered to the
Director of Town Planning on 29.03.2016. The Planning Authority
sought extension under the proviso for a period commencing from
07.02.2015 to 06.02.2016. The said request for grant of extension
was made after lapsing of extended period, which can be provided
under the proviso to Section 26. In the meantime, the
development plan was published by the Municipal Corporation on
04.02.2016. It is, thus, clear that even until lapsing of the
extended period, as provided under the third proviso to Section 26,
the Planning Authority did not make any request for grant of
extension and proceeded to publish the draft development plan
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without securing such extension. It must be recorded that grant of
extension under Section 26 (second proviso) is not merely an
empty formality. The State Government, on consideration of
application of Planning Authority, by an order in writing and for
the reasons to be recorded from time to time, is required to grant
extension, as requested. The State Government is expected to
apply its mind to the circumstances and thereafter grant extension
on consideration of all relevant factors. Section 26(1) of the Act
provides a mandate to prepare and publish the notice of draft
development plan within a period of two years. The word used in
sub-section (1) of Section 26 is "shall" and not "may". There is a
power with the State Government to grant extension, but the power
is to be exercised after application of mind and by issuing order in
writing and for the reasons to be recorded. If the facts of the
instant case are considered, it is clear that for initial period of two
years, as provided under Section 26(1), after publication of
intention under Section 23, the notice in respect of preparation of
the draft development plan was not published. It is permissible for
the State Government to grant extension for a total period of twelve
months in aggregate, however, until completion of extended period
of one year from the date of publication of intention under Section
23 i.e. up to 06.02.2016, even a request was not made to the
Director for grant of extension and such a request was made
belatedly after publication of notice of the draft development plan.
While interpreting provisions of Section 26, the consequences, as
provided under Section 21(4A) for not adhering to the time frame
prescribed under Section 26(1) cannot be overlooked. Sub-section
(4A) of Section 21 also uses the word "shall" and as such, it shall
have to be construed as a mandate. Sub-section (4A) of Section 21
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provides that if the time frame provided under Sections 25, 26 and
30 for doing anything specified in the said sections lapses, it shall
be presumed that the Planning Authority has failed to perform the
duties imposed upon it and the work remaining to be done up to
the stage of submission of draft Development Plan shall be done
by the authority prescribed in the said section.
37 In the instant matter, it shall have to be deemed that
on completion of period prescribed under Section 26 i.e.
06.02.2015, the Planning Authority has failed to perform its duties.
It must be noted that even after lapsing of the period, up to which
extension is permissible under sub-section (1) of Section 26, no
request was made to the Director of Town Planning for grant of
such extension. As such, the consequences provided under sub-
section (4A) of Section 21 shall ensue and the work remaining to be
done at the end of the period of two years shall automatically gets
transferred to the authority prescribed under sub-section (1) of
Section 21.
APPLICABILITY OF SECTION 21(4A) TO THE PROCEEDINGS IN
RESPECT OF REVISION OF DEVELOPMENT PLAN UNDER
SECTION 38 OF THE M.R.T.P. ACT.
38 It is emphatically contended by Respondents that
Section 21 does not have applicability to the proceedings in respect
of revision of development plan under Section 38 of the MRTP Act.
Section 38 of the MRTP Act prescribes that at least once in twenty
years from the date on which a Development plan has come into
operation, and where a Development plan is sanctioned in parts,
then at least once in twenty years from the date on which the last
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part has come into operation, a Planning Authority may and shall
at any time when so directed by the State Government, revise the
Development Plan either wholly, or the parts separately after
carrying out, if necessary, a fresh survey and preparing an existing
land-use map of the area within its jurisdiction, and the provisions
of sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 shall, so far as
they can be made applicable, apply in respect of such revision of
the Development plan. It is contended that in respect of
proceedings under Section 38 of the Act of 1966, provisions of
Sections 22 to 31, except Section 29 would apply and the
applicability of Section 21 has been specifically excluded. It is
contended that prior to amendment, by virtue of Maharashtra Act
No.6 of 1976, Section 21 was made applicable to the proceedings
under Section 38 of the MRTP Act. However, since amendment to
the provisions of the Act incorporated by virtue of Amending Act of
1976, Section 17(3) of the Act, directs deletion of figure "21" from
the provisions of Section 38 of the MRTP Act. It is, thus,
contended that even in spite of lapse on the part of Planning
Authority to finalise the draft development plan within the
stipulated period, the consequences enumerated in Section 21(4A)
shall not ensue and since by virtue of inapplicability of Section 21
of the MRTP Act, prescription of limitation under Section 26 for
finalisation of the draft development plan within a period of two
years and the extended period of one year shall have to be
considered as directory.
39 The argument though, prima facie, appears to be
convincing, is not acceptable for various reasons. It shall be noted
that Section 21 of the Act of 1966, initially, until incorporation of
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the amendment by virtue of Maharashtra Regional and Town
Planning (2nd Amendment) Act, 2010, enforced since 05.04.2011,
was comprising of sub-sections (1) and (2). By virtue of (Second
Amendment) Act, 2010, sub-section (3) was inserted, whereas, by
virtue of Maharashtra Act No.5 of 2014, sub-section (4) has been
inserted. Sub-section (4A) of Section 21 has been inserted by the
Maharashtra Regional & Town Planning (second amendment) Act of
2010, enforced since 05.04.2011. Thus, in the year 1976, or prior
thereto, there was no relevance for maintaining applicability of
Section 21 of the proceedings in respect of revision of development
plan contemplated under Section 38 of the Act. Since sub-sections
(1) and (2) of Section 21 refer to preparation of development plan,
after commencement of the Act and after constitution of the
Municipal Corporation, respectively, it was logical to exclude
applicability of Section 21 in respect of proceedings under Section
38 of the Act of 1966. At the relevant time, therefore, need was
felt, and appropriately, to delete Section 21 thereby excluding its
applicability to the proceedings under Section 38 of the Act of
1966. It shall have to be noted that the procedure prescribed in
respect of preparation and publication of notice of the draft
development plan prescribed under Section 26 is very much
applicable while revising the development plan by taking recourse
to Section 38 of the Act of 1966. Section 26, which is made
specifically applicable to the proceedings under Section 38, makes
a reference to Section 21. It is prescribed in sub-section (1) of
Section 26, that:
Subject to the provisions of section 21, a Planning
Authority, or the said officer shall, not later than two
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years from the date of notice published under section
23, prepare a draft Development plan and publish a
notice in the Official Gazette and in such other manner
as may be determined by it stating that the
Development plan has been prepared.
(underline supplied)
40 The provisions of Section 26 and the time limit
prescribed thereunder is subject to the provisions of Section 21
and that Section 26 has applicability to the proceedings under
Section 38 in respect of revision of development plan. The
provisions of Section 21(4A) does automatically get attracted and
shall have to be made applicable to the proceedings under Section
38 of the Act of 1966. The legislative intent of inserting sub-
section (4A) of Section 21 shall also have to be looked into.
Although in 1976, when reference of Section 21 was deleted from
Section 38 of the Act of 1966, at the relevant time, there was
absolutely no rationale in maintaining such reference and making
applicable the provisions of Section 21 in respect of proceedings
under Section 38. However, sub-section (4A) of Section 21, which
provides for consequences on failure of the Planning Authority to
prepare a draft development plan within the time specified under
Sections 25, 26 and 30 for doing anything specified in the said
section, it is but logical and mandatorily required to apply the
provisions of sub-section (4A) of Section 21 to the proceedings
under Section 38 of the Act of 1966. Section 21(4A) is applicable
in respect of lapsing of period under Sections 25 and 26 and as a
consequence, the officer appointed by the State Government is
required to be appointed to carry out remaining functions of town
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planning authority for publication of notice under Section 26 till
submission of the draft development plan under Section 30. It
would be proper to refer to the Statement of Objects and reasons
for introduction of the Maharashtra Regional & Town Planning
(Second Amendment) Act, 2010, published in the Official Gazette
on 15.12.2010, which reads as below:
STATEMENT OF OBJECTS AND REASONS
Section 21 to 31 of the Maharashtra Regional and
Town Planning Act, 1966 (Mah. XXXVII of 1966) provide
for preparation, submission and sanction of
Development plan.
Development plans are prepared to ensure
planned development of towns. It has been observed
that, the procedure for preparation, submission and
sanction of Development plan is too lengthy.
Urbanisation is rapidly increasing and needs of
the society are changing fast. There is a dire need to
match the pace of preparation of Development plan
with the pace of urbanization.
It is, therefore, considered expedient to amend
sections 21, 24, 26, 28, 31, 32 and 38 of the said Act
and to substitute sections 22A and 24 with deletion of
section 29 therefrom, with a view to curtail the time
limit at various stages of preparation, submission and
sanction of Development plan and to ensure effective
implementation of the said Act.
The Bill seeks further to amend the Maharashtra
Regional and Town Planning Act, 1966, to achieve the
above objectives.
41 On reading the Statement of Objects and Reasons for
introducing amendment and for inclusion of sub-section (4A) of
Section 21, it is clear that the object is to curtail the time limit at
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various stages of preparation, submission and sanction of
development plan and to ensure effective implementation of the
said Act. In paragraph no.3 of the Statement of Objects, it is
recorded that Urbanization is rapidly increasing and needs of the
society are changing fast. There is dire need to match the pace of
preparation of Development plan with the pace of urbanization.
The amended provisions are introduced with a view to curtail the
time limit at various stages of preparation, submission and
sanction of Development plan. Although, initially time limit was
not prescribed, at a subsequent stage, though the time limit was
prescribed, the consequences were not provided. The provision in
respect of extension of time period under third proviso to Section
26 was amended by virtue of Maharashtra Act No.38 of 2014
providing powers to the State Government to grant extension up to
twelve months in case of Municipal Corporation having population
of 10 lakhs or more, but less than One crore. The earlier provision,
which existed prior to 04.10.2013, provided for extension
admissible within the powers of the Government up to six months
in aggregate. It is, thus, clear that though Section 26 provides for
outer limit of two years, for preparation and publication of notice of
draft development plan, there is a power vested with the State
Government to grant extension up to twelve months in case of
Municipal Corporation having population of ten lakhs or more, but
less than one crore. The second proviso to sub-section (1) of
Section 26 provides that the State Government shall have to apply
its mind before granting such extension since the proviso makes it
obligatory for the State Government to pass an order in writing and
for the reasons to be recorded. Grant of extension, thus, is not
automatic but the power shall have to be exercised by the State
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Government after due application of mind. The mandate of sub-
section (1) of Section 26 is that the Planning Authority shall have
to do the job of preparation and publication of notice of draft
development plan within two years and the proviso is an exception
which provides for extension of period in certain circumstances
and on application of mind by the State Government to the facts of
each case. There are consequences provided on account of lapses
on the part of Planning Authority under sub-section (4A) of Section
21. It is, thus, clear that the proviso relating to prescription of
time limit under Section 26 is mandatory. Section 38 of the Act of
1966, which relate to revision of development plan admits
applicability of Section 26, which provision i.e. Section 26, in turn,
is subject to the provisions of Section 21. As such, applicability of
Section 21(4A) in respect of proceedings under Section 38 of the
Act of 1966 cannot be excluded.
EX POST FACTO EXTENSION
42 The declaration of intention under Section 23 has been
published on 07.02.2013 in the Official Gazette. The period of two
years prescribed under Section 26 for preparation and publication
of notice of draft development plan came to an end on 06.02.2015.
Under the proviso to Section 26, the State Government is
authorised, on consideration of an application of the Planning
Authority, by an order in writing and for the reasons to be recorded
from time to time, extend the period of preparation and publication
of notice of the draft Development Plan. The proviso to Section 26
provides that the period so extended shall not, in any case, exceed
twelve months, in aggregate, in case of Municipal Corporation
having population of ten lakhs or more but less than One crore, as
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per the latest census figures, which can be permitted by the State
Government in addition to the original period of two years. The
prescription of time limit provided under Section 26 shall have to
be construed as mandatory since, in the event of failure to adhere
to the time frame, the consequences are laid down under sub-
section (4A) of Section 21 of the Act of 1966. In the instant matter,
until completion of two years period, as prescribed under Section
26(1) of the MRTP Act, the Planning Authority failed to publish a
notice in respect of preparation of the draft development plan. The
draft development plan itself was submitted to the Planning
Authority by the Officer appointed for the purpose of preparation of
draft development plan in the month of October 2015. The
Municipal Corporation applied for extension of time to the Director
of Town Planning, who is authorised to exercise powers exercisable
by the State Government only on 29 th March, 2013, much after
lapsing of the period, which can be granted under the second and
third provisos to Section 26(1) of the MRTP Act. Until completion
of the period provided under Section 26(1) as well as the extended
period, (which was not granted and even not applied for), the
Municipal Corporation did not tender request with the State
Government.
43 In the meanwhile, the Municipal Corporation
proceeded to publish a notice in respect of preparation of draft
development plan under Section 26(1) in the Official Gazette on
04.02.2016. It was not within the powers of the Corporation to
publish notice of preparation of draft development plan without
seeking extension of the period from the State Government. It
shall have to be taken note of that on 06.02.2015 itself, the period
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prescribed under Section 26(1) of two years has already lapsed and
the consequences provided under Section 21(4A) of the MRTP Act
were already operationalised automatically. Considering scheme of
the MRTP Act and consequences for not observing the time frame
prescribed under Section 26(1) and the proviso provided under
Section 21(4A), it cannot be conceived that ex post facto sanction
can be granted for the extension even after lapse of the period
provided under Section 26(1) or under the third proviso
thereunder.
It shall also to be taken note of that the Director of
Town Planning functions under the delegated authority of the State
Government to grant extension. The State Government, under the
second proviso to Section 26(1), on consideration of application to
the Planning Authority and by an order in writing and for the
reasons to be recorded, is required to grant extension for
preparation and publication of notice of draft development plan. In
the instant matter, the Director of Town Planning has issued two
orders granting extension on one and the same day, on
consideration of the applications tendered by the Planning
Authority, on 29.03.2016, much after lapsing of period prescribed
under the extension orders. The period covered by the two
extension orders issued by the Director of Town Planning is from
07.02.2015 to 06.08.2015 and 07.08.2015 to 06.02.2016.
Considering mandate of provisions of Section 26, it was
impermissible for the Director of Town Planning to exercise the
powers on an application tendered by the Planning Authority much
after the period covered by the extension orders is lapsed. This
itself indicates that the orders have been issued by the Director of
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Town Planning without application of mind to the record of the
case and in a mechanical manner. Such action frustrates the
legislative intent behind prescribing time limit.
45 Reliance can be placed on a judgment in the matter of
Babu Verghese Vs. Bar Council of Kerala, reported in 1999 AIR
SC 1298. In paragraphs 30 and 31 of the judgment, the Supreme
Court has observed thus:
"30 It is the basic principle of law long
settled that if the manner of doing a
particular act is prescribed under any
Statute, the act must be done in that
manner or not at all. The origin of this
rule is traceable to the decision in Taylor v.
Taylor (1875 I Ch.D. 426 which was
followed by Lord Roche in Nazir Ahmad v.
King Emperor 63 Indian Appeals 372 =
AIR 1936 PC 253 who stated as under :
" WHERE a power is given to do a
certain thing in a certain way, the thing
must be done in that way or not at all."
31 THIS rule has since been approved
by this court in Rao Shiv Bahadur Singh
& Anr. v. State of Vindhya Pradesh 1954
SCR 1098 - AIR 1954 SC 322 and again in
Deep Chand v. State of Rajasthan 1962 1
SCR 662 = AIR 1961 SC 1527. These cases
were considered by a Three-Judge bench
of this court in State of Uttar Pradesh v.
Singhara Singh & Ors. AIR 1964 SC 358 =
1964 I SCWR 57 and the rule laid down in
Nazir Ahmads case (supra) was again
upheld. This rule has since been applied
to the exercise of jurisdiction by courts
and has also been recognised as a
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salutary principle of administrative law."
46 Similarly, in the matter of Babaji Kondaji Garad and
others Vs. Nasik Merchants Co-operative Bank Ltd., Nasik,
reported in AIR 1984 SC 192, it is observed by the Supreme Court
in paragraph 12 of the judgment, thus:
"12 When statute requires a certain
thing to be done in a certain manner, it
can be done in that manner alone unless a
contrary indication is to be bound in the
statute. If the Legislature uses the
expression 'if no such persons are elected'
it indubitably suggests that primarily the
reserved seats are to be filled in by
election. Failing the election, one can
resort to appointment or co-option. The
chronology of the methodology by which
seats are to be filed in as set out in S.
730B clearly manifests the legislative
intention. The first and the foremost pride
of place is accorded to election. It ought to
be so because a representative institution
ordinarily must be democratically elected.
The section therefore, speaks 'if no such
persons are elected' which would mean
that the authorities charged with a duty to
hold election must proceed to arrange for
holding the election. If election is held
giving out information that there are
reserved seats and no candidate is
forthcoming to contest for the reserved
seats, the Legislature in its wisdom
provided that the seats shall not remain
vacant but can be filed in by two
subsidiary methods such as appointment
or co-option which cannot be put on par or
equated with election which is universally
recognised method by which
representative institutions are set up.
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Therefore, the language and the
chronology of the methodology of filing in
reserved seats employed in S. 73-B provide
a clue to its correct construction and there
should be no doubt that opportunity must
be provided for filing in seats by election.
It is the failure of the election machinery
to fill in the seats which would enable the
concerned authority to fill in the seats by
appointment or co-option. The condition
precedent to filing in reserved seats by
appointment or co-option is holding of the
election and failure to elect such persons
would permit resort to other methods of
filing in the reserved seats."
In the instant matter, when the statute requires the
Municipal Corporation to act in a particular manner, it is not
permissible for the Corporation to act in deviation of the legislative
mandate and in such event, the consequences provided under
Section 21(4A) become operationalised.
48 Learned Counsel appearing for Respondents has
referred to an order passed by the Division Bench at the principal
seat in Writ Petition No.240 of 2013 decided on 7 th April, 2014. The
PIL raising challenge to the proposed draft development plan
prepared by Phaltan Municipal Council has been turned down by
the Division Bench holding the petition to be premature. The
petition has been dismissed summarily. The facts in detail have
not been recorded. Even otherwise, in the instant matter, the draft
development plan itself cannot be stated to be in consonance with
the mandatory provisions of the law and as such, cannot be
termed as a draft development plan within the framework of MRTP
Act of 1966. The order of the Division Bench cited supra does not
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have applicability to the facts of this case.
49 It is argued on behalf of the respondents that grant of
extension is merely a formality and such extension can be granted
ex post facto. It is contended that there is no provision for prior
sanction for extension of such time, as prescribed and that ex post
facto sanctions are not only permissible but also do not violate any
statutory provisions of law. In the instant matter, the application
for grant of extension was also beyond the period prescribed in
respect of grant of such extension under the proviso to Section 26.
By then, the consequences provided under Section 21 (4A) have
already became operationalised. The statutory provision in respect
of adherence to the time frame, as provided under Section 26 shall
have to be construed as mandatory. In this context, reliance can
be placed on the judgment in the matter of Mackinon Mackenzie
and Company Ltd. vs. Mackinnon Employees Union, reported in
AIR 2015 Supreme Court 1373. In paragraphs no.30 to 33, the
Supreme Court has observed thus:
30 The learned senior counsel
appearing for the respondent-Union has
rightly placed reliance upon the judgments
of this Court, namely, the State of Uttar
Pradesh and others v. Babu Ram Upadhya,
(AIR 1961 SC 751), State of Mysore and
Ors. v. V.K. Kangan and Ors. (AIR 1975 SC
2190) and Sharif-Ud-Din v. Abdul Gani
Lone, (AIR 1980 SC 303), all referred to
supra, wherein this Court while referring
to certain statutory provisions,
consistently held that the statutory
provisions of the statutory enactment are
mandatory and not directory and that they
are required to be rigidly complied with.
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The relevant paras from the decision of
this Court in the case of Babu Ram
Upadhya (supra) are extracted hereunder:
"28. The question is whether Rule I of
para 486 is directory. The relevant rule
says that the police officer shall be tried in
the first place under Chapter XIV of the
Criminal Procedure Code. The word "shall"
in its ordinary import is "obligatory"; but
there are many decisions wherein the
courts under different situations construed
the word to mean "may". This Court in
Hari Vishnu Kamath v. Syed Ahmad
Ishaque, (AIR 1955 SC 233) dealt with this
problem at p. 1125 thus :
"It is well established that an enactment in
form mandatory might in substance be
directory and that the use of the word
'shall' does not conclude the matter."
It is then observed :
"They (the rules) are well-known, and there
is no need to repeat them. But they are all
of them only aids for ascertaining the true
intention of the legislature which is the
determining factor, and that must
ultimately depend on the context."
The following quotation from Crawford on
the Construction of Statutes, at p. 516, is
also helpful in this connection :
"The question as to whether a statute is
mandatory or directory depends upon the
intent of the legislature and not upon the
language in which the intent is clothed.
The meaning and intention of the
legislature must govern, and these are to
be ascertained, not only from the
phraseology of the provision, but also by
considering its nature, its design, and the
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consequences which would follow from
construing it the one way or the other ?."
This passage was approved by this Court
in State of U.P. Manbodhan Lal Srivastava,
(AIR 1957 SC 912). In Craies on Statue
Law, 5th Edn., the following passage
appears at p. 242:
"No universal rule can be laid down as to
whether mandatory enactments shall be
considered directory only or obligatory
with an implied nullification for
disobedience. It is the duty of courts of
justice to try to get at the real intention of
the Legislature by carefully attending to
the whole scope of the statute to be
construed."
A valuable guide for ascertaining the
intention of the Legislature is found in
Maxwell on The Interpretation of Statutes,
10th Edn., at p. 381 and it is :
"On the other hand, where the
prescriptions of a statute relate to the
performance of a public duty and where
the invalidation of acts done in neglect of
them would work serious general
inconvenience or injustice to persons who
have no control over those entrusted with
the duty without promoting the essential
aims of the legislature, such prescriptions
seem to be generally understood as mere
instructions for the guidance and
government of those on whom the duty is
imposed, or, in other words, as directory
only. The neglect of them may be penal,
indeed, but it does not affect the validity of
the act done in disregard of them."
This page was accepted by the Judicial
Committee of the Privy Council in the case
of Montreal Street Railway company v.
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Normandin, (AIR 1917 PC 142) and by this
Court in State of U.P. v. Manbodhan Lal
Srivastava.
29. The relevant rules of interpretation
may be briefly stated thus : When a statute
uses the word "shall", prima facie, it is
mandatory, but the Court may ascertain
the real intention of the legislature by
carefully attending to the whole scope of
the statute.
For ascertaining the real intention of the
Legislature of the Court may consider,
inter alia, the nature and the design of the
statute, and the consequences which
would follow from construing it the one
way or the other, the impact of other
provisions whereby the necessity of
complying with the provisions in question
is avoided, the circumstance, namely, that
the statute provides for a contingency of
the non-compliance with the provisions,
the fact that the non-compliance with the
provisions is or is not visited by some
penalty, the serious or trivial consequences
that flow therefrom, and, above all,
whether the object of the legislation will be
defeated or furthered."
31 Further, the relevant paras 4 and 10
from the case of V.K. Kangan and Ors.,
(AIR 1975 SC 2190). (supra) are extracted
hereunder:-
"4. The only point which arises for
consideration is whether the provisions of
Rule 3(b) were mandatory and therefore
the failure to issue the notice to the
department concerned as enjoined by the
rule was fatal to the validity of the
notifications under Sections 4 and 6 of the
Act.
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XXX XXX XXX
10. In determining the question whether
a provision is mandatory or directory, one
must look into the subject-matter and
consider the importance of the provision
disregarded and the relation of that
provision to the general object intended to
be secured. No doubt, all laws are
mandatory in the sense they impose the
duty to obey on those who come within its
purview. But it does not follow that every
departure from it shall taint the
proceedings with a fatal blemish. The
determination of the question whether a
provision is mandatory or directory would,
in the ultimate analysis, depend upon the
intent of the law-maker. And that has to
be gathered not only from the phraseology
of the provision but also by considering its
nature, its design and the consequences
which would follow from construing it in
one way or the other. We see no reason
why the rule should receive a permissible
interpretation instead of a pre-emptory
construction. As we said, the rule was
enacted for the purpose of enabling the
Deputy Commissioner (Land Acquisition
Collector) to have all the relevant materials
before him for coming to a conclusion to be
incorporated in the report to be sent to the
Government in order to enable the
Government to make the proper decision.
In Lonappan v. Sub-Collector of Palghat 1
the Kerala High Court took the view that
the requirement of the rule regarding the
giving of notice to the department
concerned was mandatory. The view of the
Madras High Court in K.V.Krishna Iyer v.
State of Madras is also much the same.
(Emphasis laid by this Court)
32 Further in the case of Sharif-Ud-Din
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wp198116.odt
(AIR 1980 SC 303) (supra) it was held as
under by this Court :-
"9. The difference between a mandatory
rule and a directory rule is that while the
former must be strictly observed, in the
case of the latter substantial compliance
may be sufficient to achieve the object
regarding which the rule is enacted.
Certain broad propositions which can be
deduced from several decisions of courts
regarding the rules of construction that
should be followed in determining whether
a provision of law is directory or
mandatory may be summarised thus : The
fact that the statute uses the word "shall"
while laying down a duty is not conclusive
on the question whether it is a mandatory
or directory provision. In order to find out
the true character of the legislation, the
court has to ascertain the object which the
provision of law in question has to
subserve and its design and the context in
which it is enacted. If the object of a law is
to be defeated by non-compliance with it, it
has to be regarded as mandatory. But
when a provision of law relates to the
performance of any public duty and the
invalidation of any act done in disregard of
that provision causes serious prejudice to
those for whose benefit it is enacted and at
the same time who have no control over
the performance of the duty, such
provision should be treated as a directory
one. Where, however, a provision of law
prescribes that a certain act has to be
done in a particular manner by a person in
order to acquire a right and it is coupled
with another provision which confers an
immunity on another when such act is not
done in that manner, the former has to be
regarded as a mandatory one. A
procedural rule ordinarily should not be
construed as mandatory if the defect in the
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act done in pursuance of it can be cured
by permitting appropriate rectification to
be carried out at a subsequent stage
unless by according such permission to
rectify the error later on, another rule
would be contravened. Whenever a statute
prescribes that a particular act is to be
done in a particular manner and also lays
down that failure to comply with the said
requirement leads to a specific
consequence, it would be difficult to hold
that the requirement is not mandatory and
the specified consequence should not
follow."
ig (Emphasis laid by this Court )
Apart from the said decision, this
Court has followed the Privy Council of
1939 and Chancellor's decisions right
from the year 1875 which legal principle
has been approved by this Court in the
case of Rao Shiv Bahadur Singh and
Anr. v. State of Vindhya Pradesh and the
same has been followed until now,
holding that if a statutory provision
prescribes a particular procedure to be
followed by the authority to do an act, it
should be done in that particular
manner only. If such procedure is not
followed in the prescribed manner as
provided under the statutory provision,
then such act of the authority is held to
be null and void ab initio in law. In the
present case, undisputedly, the
statutory provisions of section 25FFA of
the L.D. Act have not been complied with
and therefore, consequent action of the
appellant-Company will be in violation of
the statutory provisions of Section
25FFA of the L.D.Act and therefore, the
action of the Company in retrenching the
concerned workmen will amount to void
ab initio in law as the same is inchoate
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and invalid in law."
50 Considering language of the statute so also intent of
the legislation, the provisions of Section 26, prescribing the time
frame as well as Section 21(4A) of the Act of 1966, shall have to be
construed as mandatory. The non observance of the time frame
prescribed under Section 26(1) attracts consequences provided
under sub-section (4A) of Section 21, which is indicative of the fact
that the provisions are mandatory. Apart from this, when the
statute uses the word "shall", prima facie, it is mandatory. The
Court, in such circumstances, may ascertain real intention of the
legislature by carefully examining the purpose of such provision
and the consequences that may follow in the event of non
observance thereof.
51 The petitioner points out that the proposals in respect
of draft development plan were handed over to Municipal
Corporation for publication under section 26(1) by the Town
Planning Officer under the directions of Joint Director of Town
Planning, Aurangabad Region, on 09.09.2015. It does appear that
thereafter a General Body meeting of the Municipal Corporation
was held on 28.12.2015 and, in the proceedings of the meeting, it
is recorded that the proposals in respect of draft development plan
have been received from respondent no. 5 in sealed cover on
31.10.2015 and by adopting resolution in the General Body
meeting, those are required to be forwarded to the State
Government. A General Body meeting, however, came to be
adjourned to 28.01.2016. In the meantime, it does appear, on
consideration of resolutions and deliberations, that have taken
place in the meeting, that the copies of the proposals forwarded by
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the Town Planning Officer for publication as draft development plan
were circulated amongst the Corporators, public at large, Media,
etc. and suggestions and objections from all the concerned were
taken into consideration and certain modifications were carried
out in the proposal. The modifications are to such a large extent
that the General Body of Corporation recommended deletion of 361
reservations prescribed for public purposes under the proposal, 43
roads were also directed to be deleted from the proposal, as
included by the Town Planning Officer. About 114 reservations
sanctioned under the previous development plan were also directed
to be deleted. The impact is to such a large extent that it
completely upsets the whole town planning exercise conducted by
the expert body. The proposals, as suggested by the Corporators
in the General Body Meeting relates to deletion of about 64 play
grounds and have added only 4 play grounds. Most shocking
example is in case of exhibiting MGM Golf Court admitting 23.20
hector as a play ground, MTDC Golf Court admitting 60 hector is
proposed to be a play ground under the new proposal. The
proposals forwarded by the Corporators recommended deletion of
33 gardens, apart from diminishing the reservations prescribed for
Primary Schools, Play Grounds, Libraries, Dispensaries, Maternity
Homes, etc. The proposals recommended by the Corporators in its
General Body Meeting related to diminishing of 43 roads, deviation
of 5 roads, changing alignment of 22 roads and shrinking width of
number of roads in the city. The proposals forwarded by the
Corporators do not spare even the airport since the area
surrounding airport, which was prescribed to be maintained as a
green belt, has been recommended under the revised proposal for
Commercial Zone. There is no sparing of water bodies, forest lands
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which have shrunk 29.22 hectors and 469.97 hectors, respectively.
52 The task of preparation of the development plan is a
job of experts. In the matter of Manohar Joshi Vs. State of
Maharashtra & others, reported in (2012) 3 Supreme Court Cases
619, in paragraph no. 54 and 199, the Supreme Court has
observed thus :
54 The planning process under the
MRTP Act is quite an elaborate process. A
number of town planners, architects and
officers of the Planning Authority, and
wherever necessary those of the State
Government participate in the process.
They take into consideration the
requirements of the citizens and the need
for the public amenities. The planners
consider the difficulties presently faced by
the citizens, make rough estimate of the
likely growth of the city in near future and
provide for their solutions. The plan is
expected to be implemented during the
course of the next twenty years. After the
draft development plan is prepared, a
notice is published in the Official Gazette
stating that the plan is prepared. Under
Section 26(1) of the Act the name and
place where copy thereof will be available
for inspection to the public at large is
notified. Copies and extracts thereof are
also made available for sale. Thereafter
suggestions and objections are invited.
The provisions of the regional plan are
given due weightage under Section 27 of
the Act and then the plan is finalised after
following the detailed process under
Section 28 of the Act. This being the
position, Chapter III of the MRTP Act on
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development plans requires the sanctioned
plan to be implemented as it is.
199 As stated above, we adopted the
model of democratic planning which
involves the participation of the citizens,
planners, administrators, municipal bodies
and the Government a is also seen
throughout the MRTP Act. Thus, when it
comes to the development plan for a city,
at the initial stage itself there is the
consideration of the present and future
requirements of the city. Suggestions and
objections of the citizens are invited with
respect to the proposed plan, and then the
planners apply their mind to arrive at the
plan which is prepared after a scientific
study, and which will be implemented
during the next 10 to 20 years as laid
down under Section 38 of the MRTP Act.
The plan is prepared after going through
the entire gamut thereto from the State
Government. That is why the powers to
modify the provisions of the plan are
restricted as noted earlier. If the plan is to
be tinkered for the benefit of the interested
persons, or for those who can approach
the persons in authority, then there is no
use in having a planned development.
Therefore, Section 37 which permits minor
modifications provides that even that
should not result into changing the
character of the development plan, prior
whereto also a notice in the gazette is
required to be substantial nature, then the
procedure sunder Section 29 of the Act
requiring a notice in the local newspapers
inviting objections and suggestions from
the citizens is to be resorted to. Even the
deletion of reservation under Section 50 is
at the instance of the appropriate
authority only when it does not want the
land for the designated purpose.
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53 In the instant matter, the methodology adopted by the
General Body of the Municipal Corporation in modifying the
proposals, as received from the Town Planning Officer, to such an
extent that the whole plan itself gets substituted, is severely
criticized by the petitioner. It is true that the scheme of the MRTP
Act provides for consideration of objections and claims by the Town
Planning Committee under Section 28 of the Act after publication
of draft development plan. There is no room for consideration of
the proposals and objections either from the Corporators, general
public, builders or developers or any other section of the society by
the General Body of the Corporation before publication of the draft
development plan and the function of consideration of objections
rests with only the Planning Committee constituted under Section
28 of the MRTP Act. It does appear that this procedure prescribed
under the scheme of MRTP Act of 1966 has been deviated. There
is replacement of the draft development proposals by the elected
body of the Corporation i.e. elected Corporators by adopting a
resolution in the General Body meeting on 21.08.2015. The Town
Planning Officer was appointed after declaration of intention to
prepare a draft development plan and was entrusted with the task
of preparation of draft development plan in the year 2013. It took
more than two years for the office comprising of 15 experts to
tender draft development proposals to the Planning Authority. The
General Body of the Corporation, in its meeting, made a
declaration to prepare a new development plan and substituted
proposals on wholesale basis by new proposals and submitted it to
the State government without there being any valid extension of
time prescription under Section 26(1) of the MRTP Act. It does
appear that the expert took about two years for conducting a job in
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a particular manner which has been modified and submitted as a
new proposal which was prepared hardly during the period of
twelve days. There appears to be large scale deviation from the
proposal and scheme within contemplation of the MRTP Act of
1966.
54 Apart from the deviations and irregularities, as pointed
out above, this petition is liable to be allowed on the ground of non
observance of mandatory and statutory provisions, as has been
recorded in detail in above noted paragraphs.
For the reasons recorded above, writ petition deserves
to be allowed and same is accordingly allowed. The notification
dated 4.2.2016, published in the Official Gazette, relating to
preparation of draft development plan, purportedly under Section
26(1) of the MRTP Act, is quashed and set aside. The orders
passed by the Director of Town Planning under the delegated
authority, granting extension, dated 29.03.2016, are also quashed
and set aside. It is hereby declared that the Planning Authority shall
be deemed to have failed to perform the duty imposed upon it by
or under the provisions of the MRTP Act and the work remaining to
be done up to the stage of submission of draft development plan
under Section 30, shall be completed by the concerned Divisional
Joint Director or Deputy Director of Town Planning and Valuation
Department or an officer nominated by him not below the rank of
an Assistant Director of Town Planning, as the case may be. The
said officer shall exercise all the powers and perform all the duties
of a Planning Authority which may be necessary for the purpose of
preparing a Development plan and submitting it to the State
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Government for sanction and may, notwithstanding anything
contained in any other law relating to the funds of the Planning
Authority, recover the cost thereof from such funds. The
provisions of sub-section (4A) of Section 21 of the MRTP Act shall
operate.
56 Rule is accordingly made absolute to the extent
specified above. There shall be no order as to costs.
K.L.WADANE
ig R.M.BORDE
JUDGE JUDGE
adb/wp198116
