Bombay High Court
Suhas Shridhar Shahane And Anr vs The State Of Maharashtra Thru ... on 23 March, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
wp.5382.19.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5382 OF 2019
1. Suhas Shridhar Shahane,
Age about 63 years,
Occupation : Business / Agri.
R/o. Bilwadal Bungalow,
Near Natraj Mandir,
Satara - Koregaon Road,
Krushnanagar, Satara - 415 003.
2. Subhash Kondiram Sawant,
Age about 72 years,
Occupation : Business / Agri.,
R/o. Kodoli, Degaon Phata,
Kodoli, Tal. & District: Satara. .. Petitioners.
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Collector, Satara,
Having office at Collector
Compound, Powai Naka, Satara.
3. The Additional Collector,
Satara, Having office at Collector
Compound, Powai Naka,
Satara.
4. Assistant Director,
Town Planning, Satara.
Office: 1st floor, Zilla Parishad
Extension Building, Satara.
5. Regional Planning Committee @
Assistant Director, Town Planning
Regional Project, Satara.
Office: 217, Raviwar Peth,
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Sahakar Vaibhav, District
Marketing office Building, 1st floor,
Market Yard, Satara. .. Respondents.
....................
Mr. G.S. Godbole a/w. Mr. Dilip Bodake, Advocates for the
Petitioners.
Ms. Shruti D. Vyas, 'B' Panel Counsel for the Respondent Nos.1 to 5.
...................
CORAM : S. J. KATHAWALLA &
MILIND N. JADHAV, JJ.
DATE : 23 MARCH, 2022.
JUDGMENT (Per : S.J. Kathawalla & Milind N. Jadhav, JJ.)
. By the present petition, the Petitioners have prayed for the
following reliefs:
"(b) This Hon'ble Court be pleased to issue the Writ of
Mandamus or Certiorari or any other appropriate Writ/
Direction/Order in the nature of Writ of Mandamus or
Certiorari under Article 226 of the Constitution of India,
(i) be pleased to hold and declare that the Rule M-3 of
Development Control and Promotion Regulations for
Satara Region in Notification No.TPS-1917
/1585/C.R.150/17/UD-13 dated 08.01.2018 published
by the Government of Maharashtra, Urban
Development Department, Mantralaya, Mumbai which
is subsequently published in Government Gazette, Part
1, Pune Divisional Supplement dated 08 to 14.02.2018
is ultra-vires and contrary to the provisions of
Maharashtra Regional and Town Planning Act, 1966
and Regional Planning Board Regulations, 1967 and
Rules made there under and the same may be struck
down;
(ii) be pleased to quash and set aside the letter /
communication dated 24.08.2018 bearing No. P.Y.
Satara/Report/Non Agricultural/SCC/2666 issued by
the Assistant Director, Town Planning, Satara i.e.
Respondent No. 4;
(iii) be pleased to quash and set aside the order/letter dated
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19.12.2018 bearing No. MH/3/J/G/N.A./SR-14/17
passed by the Additional Collector, Satara i.e.
Respondent No. 5 and further direct the Respondents
to allow the Petitioners proposal dated 14.03.2017
submitted u/sec. 44 of the Maharashtra Land Revenue
Code, 1966."
2. The Petitioners are owners of agricultural land bearing Gat
No.268 admeasuring 66 Ares in Village Shirval, Taluka - Khandala,
District - Satara ("the said land").
3. The Petitioners have challenged the letter dated 24.08.2018
issued by the Respondent No.4 - Assistant Director - Town Planning,
Satara ("ADTP") rejecting the Petitioners' proposal for conversion of
the said land from agricultural user to non-agricultural user and the
letter dated 19.12.2018 issued by the Respondent No.3 - Additional
Collector, Satara rejecting the Petitioners' applications for
development of the said land. The Petitioners have further challenged
Modification - M-3 of the Development Control and Promotion
Regulations ("DCPR") for Satara Region issued vide Notification
No.TPS-1917/1585/C.R. 150/17/UD-13 dated 08.01.2018 published
by the Government of Maharashtra, Urban Development Department
in the Schedule appended to the notification as being ultra-vires and
contrary to the provisions of the Maharashtra Regional and Town
Planning Act, 1966 ("the said Act") and the Rules made thereunder
read with the Regional Planning Board Regulations, 1967.
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4. Before we advert to the submissions made by the Advocates
representing the respective parties, it will be apposite to refer to the
facts in brief:
4.1. The Respondent No.1, Government of Maharashtra through
the Urban Development Department vide Notification dated
03.12.2012 issued under Section 4(1) of the said Act constituted a
Regional Planning Board called as the "Satara Regional Planning
Board" ("the Board") for preparing a Regional Plan for Satara region.
4.2. As stated above, Petitioners are owners of the said land
which was originally classified as Deshmukh Watan Unalienated
Condition II-Inam Class V land. On 04.07.2016, the Petitioners made
an application to the Tahasildar for seeking conversion of the said land
to Class I Cultivator (Bhogvatdar) under the provisions of the
Maharashtra Land Revenue Code, 1966 ("MLR Code, 1966"). The
Petitioners were directed to pay Najarana amount as per Government
Resolutions dated 28.03.1998 and 09.07.2022 as conversion charges.
The Petitioners paid Najarana amount of Rs.8,31,000/-, upon which by
order dated 02.02.2017 the Tahasildar allowed the application for
conversion to Class I Cultivator and further directed to give the effect
in the 7/12 extract pertaining to the said land.
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4.3. On 14.03.2017, the Petitioners submitted an application to
the Respondent No.2 - Collector, Satara ("Collector") under the
provisions of Section 44(1) of the MLR Code, 1966 seeking conversion
of the said land from agricultural user to non-agricultural user ("NA").
4.4. On 17.03.2017, the Collector addressed separate letters to
the (i) ADTP, (ii) Tahasildar - Khandala, (iii) Executive Engineer -
MSEDCL, Khandala, (iv) Executive Engineer - Development (North),
District Parishad Satara, (v) Executive Engineer - PWD Department
(West) Satara, (vi) District Health Officer, Zilla Parishad Satara, (vii)
Deputy Collector (Rehabilitation) Satara, (viii) Deputy Collector - Land
Acquisition, Satara and (ix) Deputy Collector and Sub-Divisional
Officer (Land Acquisition), Wai, inter alia, informing that the
Petitioners had applied for NA permission in respect of the said land
and the concerned authorities should at their level after conforming to
the statutory provisions and conducting due enquiry submit a report in
the prescribed format within 20 days to the office of the Collector. It
was stated in the letter that in the event if the report was not received
from the concerned authorities within 20 days, it would be deemed
that the concerned authorities had no objection for grant of NA
permission to the Petitioners and accordingly further action would be
initiated on the Petitioners' application.
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4.5. On 24.03.2017, some of the concerned authorities submitted
their reports to the Collector certifying the details of the said land,
submitting the map/plan of the said land and their no objection for
conversion to NA. The Petitioners have annexed these reports at
Exhibit "E" (page 116 to 130 of the Writ Petition).
4.6. On 28.03.2017, (after 5 years of its constitution) the Board
held its 7th Board Meeting and resolved to publish the draft Regional
Plan for Satara region.
4.7. On 29.03.2017, the ADTP submitted his report addressed to
the Collector, recommending the conversion of the user of the said
land for NA. It was stated in the report that the Petitioners were
entitled for conversion in view of the applicability of the Regional
Town Planning Scheme, Satara which was approved w.e.f. 15.05.2015
under the Standardized Development Control and Promotion
Regulations ("SDCPR") for Regional Plans.
4.8. On 30.03.2017, the Board through the ADTP published the
notice in the Government Gazette under the provisions of Section 16
(1) of the said Act stating that the Draft Regional Plan for Satara
Region has been prepared and the Board has given its approval for
publication of the Plan in its meeting held on 28.03.2017 and invited
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objections or suggestions to the plan within a period of 4 months from
the date of publication of the notice. On 30.03.2017, the aforesaid
notice was published in the Marathi newspaper "Dainik Pudhari" for
giving wide publicity.
4.9. On 12.05.2017, the Collector issued a letter to the
Petitioners seeking production of certain documents. On 05.06.2017
the Petitioners supplied the requisite documents in compliance of the
letter dated 12.05.2017 to the Collector.
4.10. On 16.06.2017, the Petitioners submitted their written
objections to the statutory notice dated 30.03.2017, inter alia,
contending that the said land is situated within close proximity of 100
meters from the residential area; that there is a big water tank situated
within 500 meters from the said land; and that there is electricity
available within the distance of 4 to 5 electric pole distance from the
said land; hence it was urged to delete the said land from 'agricultural
region' and keep the said land in the 'residential zone'.
4.11. On 21.06.2017, the Petitioners by their letter renewed their
request to the Collector praying for grant of permission to convert the
said land from agricultural user to NA.
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4.12. On 19.07.2017, the Board addressed a letter to the
Petitioners directing them to remain present for hearing of their
objections to the draft Regional Plan qua the said land on 27.07.2017.
4.13. On 05.01.2018, the Respondents No.1 - State issued the
Notification under the provisions of Section 28(4)of the said Act
notifying the list of modifications / changes made in the draft Regional
Plan for information of the public.
4.14. On 08.01.2018, the Respondent No.1 - State after enquiry
and consulting the Director of Town Planning, Pune granted sanction
to the draft Regional Plan of Satara and issued Notification under
Section 15(1) of the said Act read with Clause 7 of the Regional
Planning Board Regulations, 1967 subject to the modifications
specified in Schedule 'A' and 'B' appended thereto and fixed the date
after two months as the date on which the Final Regional Plan of
Satara Region would come into force as the "Final Regional Plan of
Satara Region (2016-2036)".
In Schedule 'B', the Special Regulations suggested by the
Board were included wherein Modification No.3 ("M-3") impugned in
the present Petition reads as under:-
"M-3 : Regarding Committed Development:
Any development permission granted or any development
proposal for which tentative or final approval has been
recommended by the concerned Town Planning Office and is
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pending with concerned Revenue Authority for demarcation
or for final NA before 28.03.2017 (i.e. the date of resolution
of the RP Boards for the publication) shall be continued to be
valid for that respective purpose along with approved Floor
Space Index. Provided that it shall be permissible for the
owner to either continue with the permission in toto as per
such earlier approval for that limited purpose under the
erstwhile regulation or apply for grant of revised permission
under the new regulations. However, in such revision of
cases, the premium if any, shall not be applicable; for the
original approved land use and FSI."
4.15. On 24.05.2018, the Petitioners filed a detailed
representation to the Chief Minister through the Urban Development
Department to seek change of date in M-3 from 28.03.2017 to
30.03.2017 on the ground that the draft Regional Plan of Satara
District was published under Section 16(1) of the said Act on
30.03.2017 in the Gazette and in the newspaper and therefore all
conversion proposals pending / recommended before the said date i.e.
30.03.2017 by the ADTP be considered for sanction for conversion to
NA (including the proposal of the Petitioners). By letter dated
24.07.2018, the Collector directed the ADTP to consider the
representation of the Petitioners after due enquiry and accordingly
inform the Petitioners.
4.15.1. On 24.08.2018, the ADTP informed the Petitioners that the
Urban Development Department of the Government of Maharashtra
has sanctioned the Regional Plan for Satara vide Notification dated
08.01.2018; that the same was published in the Government Gazette -
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Supplementary dated 8 to 14 February, 2018 and after two months of
its publication the Regional Plan for Satara has come into effect from
08.04.2018; that as per M-3 all proposals and/or recommendations
made by the ADTP before 28.03.2017 are to be considered valid for
conversion; that 28.03.2017 is the date fixed as the cut-off date; that
since the Petitioners' proposal was recommended by the ADTP on
29.03.2017, it was beyond the cut-off date and hence the Petitioners
representation stood rejected.
4.15.2. On 19.12.2018, the Respondent No.3 addressed a letter to
the Petitioners stating that their applications dated 14.03.2017,
05.06.2017 and 21.06.2017 seeking conversion of the said land to NA
cannot be considered as the date of recommendation by the ADTP in
their case was beyond the cut-off date and hence the applications
stood disposed of.
4.15.3. Both the above communications / letters dated 24.08.2018
and 19.12.2019 are impugned in the present Petition.
4.16. The Petitioners have also challenged the vires of M-3 which
has fixed the cut-off date as 28.03.2017 as being contrary to and ultra-
vires of the provisions of Sections 15 to 18 of the said Act and have
sought striking down of the said Modification as suggested.
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5. Mr. G.S. Godbole, learned Advocate appearing for the
Petitioners has taken us through the facts of the present case and
made the following submissions:
i. that the Petitioners have paid a sum of Rs.8,31,000/- as
Najarana amount for conversion of the said land from
Deshmukh Watan Classified Unalienated - Condition II -
Inam Class V tenure to Class I - Cultivator (Bhogvatdar) as
per the prevailing Government Resolutions dated
28.03.1968 and 09.07.2002, pursuant to which the Tahsildar
by order dated 02.02.2017 granted conversion of the said
land;
ii. that on 14.03.2017, the Petitioners made the application
under Section 44(1) of the MLR Code, 1966 to the Collector
for conversion of the said land from Class I - Cultivator i.e.
agricultural user to residential / NA; that the application was
forwarded to 9 concerned authorities by the Collector on
17.03.2017 seeking their no objection and report for
conversion, which were received by the Collector before
28.03.2017; that on 29.03.2017, the ADTP submitted his
report and recommended conversion of the said land from
agricultural user to NA, however, the cut-off date fixed in
the notification dated 08.01.2018 regarding 'committed
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development' was 28.03.2017; that this date was the date of
passing of the resolution by the Board in its 7 th Meeting held
on 28.03.2017; that fixation of this date as the cut-off date is
unreasonable and contrary to the provisions of Sections 15
to 18 of the said Act;
iii. that the cut-off date as appearing in M-3 has been suggested
by the Regional Planning Board and adopted by the
Government; it has been fixed arbitrarily; that the statutory
notice under Section 16(1) issued by the State Government
on 30.03.2017 for inviting suggestion and objections to the
draft regional plan should be considered as the cut-off date
for committed development.
6. Ms. Shruti D Vyas, learned AGP appearing for Respondent
Nos.1 to 5 has drawn our attention to the Affidavit-in-Reply dated
17.11.2019 filed by the ADTP and contended that the cut-off date of
28.03.2017 in M-3 which is impugned in the present petition is a
policy decision taken by the Respondent No.1 - State towards
'committed development' as mentioned in Schedule B - Part II of the
Notification dated 08.01.2018 issued under the provisions of Section
15(1) of the said Act.
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6.1. Ms. Vyas, learned AGP has submitted that the Respondent
No.1 has taken a similar policy decision of fixing the cut-off date
regarding "committed development" in respect of 16 other Regional
Plans sanctioned by the State Government in the year 2018 and
therefore the Petitioners' case cannot be considered for change of the
cut-off date; that in the present case, since the recommendation made
by the ADTP is on 29.03.2018, i.e. one day after the cut-off date, the
Petitioners' case cannot be considered; therefore the Petitioners' case
does not fall within the ambit of "valid committed development" as the
recommendation for development permission / NA for the said land is
made on 29.03.2017 which is after the date fixed under M-3 and
adopted by the State Government as the cut-off date. She has therefore
prayed for dismissal of the petition.
7. Mr. Godbole, learned Advocate in his rejoinder submissions
has stated that the action taken by the Respondents on the Petitioners'
proposal is contrary to the provisions of Section 16 to 18 of the said
Act; he submitted that the savings clause 1.6 of the DCPR which were
published in the Regional Plan alongwith the notification dated
30.03.2017 issued under Section 16(1) of the said Act is required to
be considered; he submitted that the the Development Control
Regulations of the Satara Regional Plan published with the statutory
notice under Section 16(1) on 30.03.2017 were not approved while
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sanctioning the Regional Plan and instead the SDCPR for Regional
Plans for Maharashtra (sanctioned on 21.11.2013) were approved;
that the SDCPR did not include Modification - M-3; that in the
notifications dated 30.03.2017 and 08.01.2018 issued in the present
case there is no mention of "committed development" as the savings
clause 1.6 deals with the same; that in the present case, it is clear from
the document produced by the Petitioners at Exhibit "E" at Page 116 to
the Writ Petition that the ADTP has approved and recommended the
Petitioners' application for conversion on 24.03.2017; however the
report recommending the Petitioners' case was dated by the ADTP
29.03.2017 and forwarded to the Collector; that on 28.03.2017 i.e. the
date of the meeting of the Regional Planning Board which is deemed
to be the cut-off date was a national holiday and therefore a non
working day; that the Petitioners have complied with each and every
condition as required by the Respondent Nos.2 and 3; that M-3 as
inserted in Schedule 'B' to the Notification dated 08.01.2018 was not
in existence till the notification was issued; that M-3 even if construed
as it reads, states that it refers to any development permission granted
or development proposal for which tentative or final approval has been
recommended by the concerned authorities and is pending with the
concerned Revenue Authority for demarcation or for final NA before
28.03.2017 shall be continued to be valid; that there are two
conditions stated in M-3 namely that the tentative or final approval
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has been recommended by the concerned Town Planning Authority to
the development proposal / conversion and secondly that the
development proposal should be pending with the concerned Revenue
Authority for demarcation or final NA, but nowhere in the said Act or
the provisions of Section 15 to Section 18 of the said Act, it is stated
that the development proposal should fulfill both the conditions to
qualify the status of "committed development"; that clause 1.6 which is
the savings clause clearly states that any action taken under the
regulations in force prior to the regulations coming into force shall be
valid and continue to be so valid unless otherwise specified; thus the
Petitioners' proposal has qualified on this ground alone; that the policy
decision about "committed development" taken by the Respondent
No.1 to fix the cut-off date as 28.03.2017 is contrary to the provisions
of Section 16 to 18 of the said Act; that the date of imposing the
arbitrary cut-off date is contrary to the aim and object of the said Act
which states that a modification of Rules can only take place by the
procedure permissible under the Act and not by the means of an
administrative decision / policy decision / instruction / order; that the
State by virtue of the policy decision cannot introduce an arbitrary cut-
off date which is not supported by the statute and which directly
affects the rights of the land owners; that Section 18(1) deals with the
restriction on change of user of land or development thereof; that the
provisions of Section 18(1) of the said Act clearly provide a mandate
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about the date to be considered as the date of publication of notice
which in this case is 30.03.2017 and there are no statutory provisions
to alter the said date by any policy / administrative decision; hence,
the policy decision allegedly taken regarding the addition of definition
of "committed development" in the final notification dated 08.01.2017
and further fixing the cut-off date as 28.03.2017 is bad in law as it
clearly deprives the land owners of their rights for development.
8. We have perused the pleadings and submissions made by
the respective Advocates. Submissions made are on pleaded lines.
9. In the present case the following five dates are important for
consideration:
i. 14.03.2017: on this date Petitioners submitted application to
the Collector for seeking NA permission under Section 44
(1) of the MLR Code, 1966; thereafter on 17.03.2017 the
Collector called for NOC / Report from 9 relevant
Government Departments;
ii. 28.03.2017: on this date the Board's Committee held its 7th
Meeting and resolved to submit the draft Regional Plan for
Satara to the State Government; in this plan the said land of
the Petitioners was proposed in the agricultural zone for
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rural growth Center; 28.03.2017 was a bank holiday; the
Board meeting was held at 5.00 p.m. when the resolution
was passed;
iii. 29.03.2017: on this date the ADTP submitted his report to
the Collector in respect of the said land recommending that
since there was no Development Plan, Town Plan or
Regional Plan in existence for village Shirval, the Petitioners
were entitled to use the said land for any purpose under the
existing SDCPR applicable to Regional Plans in Maharashtra
which were in force since 15.05.2015; thus recommending
the Petitioners' application for conversion and issued
tentative approval for NA;
iv. 30.03.2017: on this date the Draft Regional Plan for Satara
was published in the Maharashtra Government Gazette
Extraordinary Part - I Pune Division Supplement stating that
the Board has granted approval for such publication in its 7 th
Meeting held on 28.03.2017;
v. 08.01.2018: on this date the Respondent No.1 - State issued
sanction under Section 15(1) of the said Act to the draft
Regional Plan of Satara with certain modifications as
specified in Schedule 'A' and 'B'. In Schedule 'B' one of the
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Special Regulation suggested by the Board incorporated a
condition Modification - 'M-3' relating to "committed
development". The said condition stated that any
development permission granted or any development
proposal for which tentative or final approval has been
recommended by the concerned Town Planning Office
(ADTP) and is pending with the concerned Revenue
Authority (Collector) for demarcation or for final NA before
28.03.2017 (i.e. the date of resolution of the Board for the
publication) shall be continued to be valid for that respective
purpose along with approved Floor Space Index. Thus
effectively the cut-off date is fixed by the Government as
28.03.2017. It is submitted before us that this decision is a
policy decision taken by the State.
9.1. According to the Petitioners, the fixation of the cut-off date
is arbitrary; that there is no enabling statutory provision to decide or
fix that date; that if at all any-cut off date has to be fixed, then it ought
to be the date of publication of the draft Regional Plan under Section
16(1) of the said Act i.e. 30.03.2017.
10. The Petitioners sought intervention of the Chief Minister
contending that the date of publication of the draft Regional Plan in
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the Maharashtra Government Gazette is on 30.03.2017 which for the
first time intimated that the Board has granted approval for such plan
and that should be treated as the relevant cut-off date; that the said
date was the first instance in point of time to inform the public at large
/ land owners about the status of their lands. The Petitioners have
asserted that adopting 28.03.2017 as the relevant cut-off date is not in
consonance with the provisions of the said Act.
10.1. In the present case, it is an admitted position that the
Petitioners' said land was covered by the SDCPR prevailing in the State
of Maharashtra from 15.05.2015 since there was no sanctioned
Regional Plan for Satara. It is also an admitted position that the ADTP
by his report dated 29.03.2017 granted in-principle approval and
recommended grant of development permission / conversion to NA to
the Petitioners in respect of the said land. The draft Regional Plan was
published in the Gazette for the first time on 30.03.2017. The
Petitioners have therefore asserted that in the final Regional Plan of
Satara which came into force w.e.f. 14.04.2018, Modification M-3
could not have provided the cut-off date of 28.03.2017 which stated
that only the proposals which were approved in principle by the ADTP
and pending with the Collector till 28.03.2017 would be considered as
valid. This effectively makes the Regional Plan applicable
retrospectively, which is impermissible. We therefore find substance
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in the submissions of the Petitioners.
11. We may usefully quote the provisions of Sections 16 to 18 of
the said Act to guide us through the present situation. Section 16 to
18 of the said Act read thus:
"16. Procedure to be followed in preparing and approving
Regional Plans
(1) Before preparing any Regional plan and submitting it to the
State Government for approval, every Regional Board shall,
after carrying out the necessary surveys and preparing an
existing-land-use map of the Region, or such other maps as are
considered necessary, prepare a draft Regional plan [and
publish a notice in the Official Gazette and in such other
manner as may be prescribed, stating that the draft Regional
plan has been prepared. The notice shall state the name of the
place where a copy of such plan shall be available for inspection
by the public at all reasonable hours mentioned therein and that
copies thereof or any extract therefrom certified to be correct
shall be available for sale to the public at a reasonable price and
invite] objections and suggestions from any person with respect
to the draft plan before such date as may be specified in the
notice, such date not being earlier than four months from the
publication of the notice. [The notice shall also state that copies
of the following particulars in relation to the draft Regional 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:-]
(a) a report on the existing-land-use map and the regional
survey carried out as aforesaid;
(b) maps, charts and a report illustrating and explaining the
provisions of the draft Regional plan and indicating the
priorities of works to be executed thereunder;
(c) a report of the stages of the development programme by
which it is proposed to execute the Regional plan; and
(d) recommendations to the State Government regarding the
directions to the issued to the local authorities in the Region and
the different departments of the State Government, if any, in
respect of enforcement and implementation of the proposals
contained in the draft Regional plan.
(2) The Regional Board shall refer the objections, suggestions
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and representations received by it to the Regional Planning
Committee appointed under section 10 for consideration and
report.
(3) The Regional Planning Committee shall, after giving a
reasonable opportunity to all persons affected by the Regional
plan of being heard, submit its report to the Regional Board
together with all connected documents, maps, charts and plans
within such time as may from time to time be fixed in that
behalf by the Regional Board.
(4) After considering the report of the Regional Planning
Committee, and the suggestions, objections and representations,
the Regional Board shall prepare the Regional plan containing
such modifications, if any, as it considers necessary, and submit
it to the State Government for approval, together with the
report of the Regional Planning Committee and all connected
documents, plans; maps and charts.
17. Publication of Regional Plan and date of its operation
Immediately after a Regional plan is approved by the State
Government, the State Government shall publish, in such
manner as may be prescribed by rules as is calculated to bring to
the notice of all persons concerned; and in particular, to all
persons affected by the Regional plan, a notice stating that the
Regional plan has been approved, and naming a place where a
copy of the Regional plan may be inspected at all reasonable
hours [and stating also that copies thereof or any extract
therefrom certified to be correct shall be available for sale to the
public at a reasonable price,] and shall specify therein a date
(not being earlier than sixty days from the date of publication of
the said notice) on which the Regional plan shall come into
operation and the plan which has come into operation shall be
called the "final Regional plan".
18. Restriction on change of user of land or development
thereof
[(1) No person shall, on or after the publication of the notice
that the draft Regional plan has been prepared or the draft
Regional plan has been approved, institute or change the use of
any land for any purpose other than agriculture or carry out any
development in respect of any land without the Previous
permission,-
(i) in case the land is situated in the limits of a Municipal
Corporation or a Municipal Council, or a Nagar Panchayat or a
Special Planning Authority or any other planning authority, of
such Municipal Corporation or Municipal Council, Nagar
Panchayat or Special Planning Authority or other planning
authority, as the case may be, or
(ii) in case the land is situated in the gaothan, within the
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meaning of clause (10) of section 2 of the Maharashtra Land
Revenue Code, 1966, of the village panchayat concerned, or
(iii) in case the land is situated in areas other than those
mentioned in clauses (i) and (ii) above, of the Collector of the
District:
Provided that, the Collector may delegate his powers under
this clause to an officer not below the rank of Tahsildar.
Explanation.- For the removal of doubt, it is hereby declared
that, no such permission of the Collector shall be required in the
gaothan area of a revenue village within the meaning of clause
(10) of section 2 of the Maharashtra Land Revenue Code,
1966.]
[(2) Notwithstanding anything contained in any other law for
the time being in force, the Village Panchayat or, as the case
may be, the Collector, in considering application for permission
shall have due regard to the provisions of any draft or Regional
plan or proposal published by means of a notice under this Act.]
(2A)(i) The provisions of sections 52, 53, 54, 55, 56, 57 and 58
shall apply mutatis mutandis to the unauthorized development
carried out in the area of Regional plan, as they apply to the
unauthorized development carried out in the area of a Planning
Authority; and
(ii) the Collector shall be the Authority Competent to take
action in respect of such unauthorized development.
(2B) Notwithstanding anything contained in this Act or any
other law for the time being in force, the State Government
may, upon a request made by the Collector, specify the terms
and conditions on compliance of which and the compounding
charges, [infrastructure charges and premium] on payment of
which the Collector may declare an unauthorized structure to be
a compounded structure:
Provided that, on declaration of an unauthorized structure
as compounded structure, the proceedings under any law for the
time being in force against such structure initiated by the
Collector shall stand abated, and if such proceedings are yet to
be initiated, no proceedings shall be maintainable:
Provided further that, no further construction shall be
permissible in any compounded structure, other than repairs
and maintenance, and any redevelopment or reconstruction of
such structure shall be only as per the provisions of the
prevailing Development Control Regulations.]
[(3) Without prejudice to the provisions of sub-sections (1) and
(2) or any other provisions of this Act, any person intending to
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execute [an Integrated Township Project] on any land, may
make an application to the State Government, and on receipt of
such application the State Government may, after making such
inquiry as it may deem fit in that behalf, grant such permission
and declare such project to be [an Integrated Township Project]
by notification in the Official Gazette or, reject the application.]"
11.1. Section 16 relates to the procedure to be followed in
preparing and approving the Regional Plans. Sub-section 1 of Section
16 begins by stating that before preparing any Regional Plan and
submitting it to the State Government for approval, every Regional
Board shall, after carrying out the necessary surveys, prepare the
existing land use map of the Region, prepare a draft Regional Plan and
publish by notice in the Official Gazette that the draft Regional Plan
has been prepared. The notice further requires to state all details and
invite objections and suggestions to the draft plan within a period of
four months from the date of publication of the notice. Sub-section 2
of Section 16 thereafter empowers the Regional Board to refer the
objections and suggestions received by it to the Regional Planning
Committee for consideration and report. Sub-section 3 of Section 16
requires the Regional Planing Committee to hear the objections and
submit its report thereon to the Regional Board. Sub-section 4 of
Section 16 thereafter requires the Regional Board to prepare the
Regional Plan with modifications if any and submit it to the State
Government for approval together with the report of the Regional
Planning Committee. As can be seen from the aforesaid provision the
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sine qua non of the procedure to be followed in preparing and
approving the Regional Plan is the publication of notice under Section
16(1) by the Regional Board about the preparation of the draft
Regional Plan and calling for objections and suggestions to the same.
11.2. Section 16 of the said Act provides for the procedure to be
followed in preparing and approving the Regional Plans and
contemplates the following:
i. Carrying out and preparing existing land use map to prepare
a draft Regional Plan and publish notice in the Official
Gazette;
ii. Invite objections and suggestions which are to be heard by
the Regional Planning Committee and submit report to the
Regional Planning Board;
iii. Submission of the draft Regional Plan to the State
Government for sanction.
11.3. The earliest point of time at which the draft Regional Plan
comes into existence in the public domain is the date of its publication
under Section 16(1) which in the present case is 30.03.2017 and
therefore if any cut-off date is to be specified in Modification M-3 then
all in-principle approvals granted prior to this date must be treated as
valid. We find that fixation of '28.03.2017' as the cut-off date in M-3 is
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arbitrary because the date of passing of the resolution by the Board
resolving to publish the draft Regional Plan does not have any
relevance or statutory force in the scheme envisaged under Sections
16 to 18 of the said Act.
11.4. Section 17 provides for publication of Regional Plan and
date of its operation. This Section is another indicator which refers to
the date of operation of the Regional Plan. Section 17 states that
immediately after a Regional Plan is approved by the State
Government, the State shall publish a notice stating that the Regional
Plan has been approved in order to bring to the notice of all persons
concerned and in particular to all persons affected by the Regional
Plan and the notice to state that a copy of the Regional Plan shall be
available for sale to the public at a reasonable price or the same may
be inspected at a particular place and shall finally specify a date not
being earlier than 60 days from the date of publication of the said
notice on which the Regional Plan shall come into operation and the
Regional Plan which will come into operation shall be called the Final
Regional Plan.
12. There is another provision which comes to the aid of the
Petitioners in the present case. Section 18 of the said Act refers to
restriction on change of user of land or development thereof and states
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that no person shall on or after the publication of the notice that the
draft Regional Plan has been prepared or the draft Regional Plan has
been approved, institute or change the use of any land for any purpose
other than agricultural or carry out any development in respect thereof
without previous permission. If the restriction on the change of user
of the Petitioners' said land is to be applied then the same can be
applied only if the Petitioners' application for NA permission was not
pending as on 30.03.2017. However, that is not the case herein
because on 29.03.2017 the ADTP has recommended the Petitioners'
application for tentative approval for NA.
13. In the present case, the draft Regional Plan has been notified
and published on 30.03.2017. Though the Board has granted approval
for such publication in its meeting convened on 28.03.2017, the
provisions of Section 16 do not refer to any date of grant of approval
for publication of the draft Regional Plan by the Board. That apart, it
is an admitted position that the Petitioners' application for NA
permission was pending with the Collector, Satara since 14.03.2017
and the ADTP has admittedly submitted his report to the Collector
recommending tentative approval to the said application on
29.03.2017.
14. In the present case, the Final Regional Plan has come into
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operation on 08.01.2018. The cut-off date appearing in Modification
M-3 in Schedule 'B' appended to the Final Regional Plan is a date
which is prior to the date of publication of notice of the draft Regional
Plan i.e. 30.03.2017 or the date of notice of publication of the Final
Regional Plan i.e. 08.01.2018. The provisions of Section 16 to 18 read
together leave no doubt in mind that the provisions of the said Act are
required to be followed scrupulously. There is no statutory provision
enabling the State Government to fix the cut-off date to freeze the
rights of the land / property owners on a particular date prior to the
date of publication of the statutory draft Regional Plan and / or the
Final Regional Plan. Fixing of the cut-off date in M-3 as on 28.03.2017
which has been done in the present case and which is prior to the date
of publication of the statutory notice under Section 16(1) of the said
Act is therefore unreasonable and arbitrary.
15. The submission of the Respondents that since they have
fixed the cut-off date on the basis of the date of passing of the
resolution by the Board in respect of 16 similar Regional Plans is no
answer in law. All actions of the Government are required to be
supported by statutory provisions and more particularly when such
statutory provisions relate to substantive rights.
16. It is interesting to note that the Government of Maharashtra
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in exercise of its powers conferred under the provisions of sub-section
(1) of Section 3 of the said Act constituted a region to be called "Satara
region" for the entire area within the jurisdiction of Satara District
(excluding Mahabaleshwar and Panchgani region) and detailed the
limits of this region under Notification dated 15.10.2012 which was
published in the Maharashtra Government Gazette, Pune Division, Part
- I dated 01.11.2012 to 07.11.2012. Thereafter by another Notification
dated 03.12.2012 issued under sub-section (1) of Section 4 of the said
Act, the Government of Maharashtra constituted a Regional Planning
Board to be called as "Satara Regional Planning Board". This Board
after carrying out the necessary surveys for preparing an Existing-land-
use Map of the said region, prepared and published a draft Regional
Plan for the said region for inviting suggestions and / or objections
from the public in accordance with the provisions of sub-section (1) of
Section 16 of the said Act on 30.03.2017. Finally on 08.01.2018, the
Government of Maharashtra accorded sanction to the said draft
Regional Plan of Satara to be called as the 'Final Regional Plan' subject
to the modifications specified in the Schedules (Schedules 'A' & 'B')
appended thereto. One of the modifications specified i.e. M-3 is the
subject matter of challenge in the present Petition. In this particular
modification, the State Government has stated the cut-off date as
28.03.2017 in respect of the pending applications made for
development / conversion of land from agricultural user to non-
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agricultural user.
17. From the above discussion, it is clear that there is no
statutory force behind fixing the cut-off date and determining the
rights of land owners. The draft Regional Plan was under preparation
by the Board for a period of almost five years. We find that there is no
basis to consider the date "28.03.2017" i.e. the date of passing of the
resolution by the Board as the cut-off date in M-3. Undoubtedly M-3 is
an important transitional condition for development as the Final
Regional Plan has come into force for Satara Region. We state that if
at all there has to be a cut-off date to determine the rights of the land
owners in respect of pending applications for development or for
seeking conversion from agricultural user to NA, then the cut-off date
should be the date of publication of the notice of the draft
Development Plan under the provisions of Section 16(1) of the said
Act. This is so because this is the first date on which the general public
at large and more specifically the affected land owners are put to
notice by the State Government about its intention to prepare the
'Final Regional Plan' on the basis of the draft Regional Plan and the
procedure for preparing the 'Final Regional Plan kicks in.
18. We state that introduction of any restrictive condition has to
be strictly in consonance with the provisions of the said Act. The State
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Government, if it has to put any restriction has to adhere to the
provisions of Section 16 and 17 so as to ensure that the legislative
mandate is followed. In the present case, the fixation of the relevant
cut-off date in the impugned M-3 Modification regarding committed
development is the date of passing of the resolution in the 7 th Meeting
convenced on 28.03.2017 granting approval for publication of the
draft Regional Plan. Admittedly the draft Regional Plan has been
published for the first time in the Gazette on 30.03.2017. The
statutory provisions discussed above do not support the date of
passing of the resolution by the Regional Planning Board as a
restrictive cut-off date which is accepted and passed by the State
Government as a policy decision in the present case. It is stated that
any policy decision introduced by the State is required to have the
mandate of law which we find absent in the present case. The fixation
of the relevant cut-off date as on 28.03.2017 in M-3 therefore does not
satisfy the provisions of Section 16 to 18 of the said Act and is
therefore held as ultra-vires. It is held that fixation of the relevant cut-
off date in condition M-3 has to be the date on which the notice of the
draft Regional Plan is published in the Maharashtra Government
Gazette in the first instance bringing it to the notice of the public at
large and calling for objections and suggestions from any affected
person as prescribed in Section 16(1) of the said Act.
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19. We therefore hold that the relevant cut-off date as appearing
in clause M-3 of the Notification dated 08.01.2018 be read as
30.03.2017 in place of 28.03.2017.
20. In view of the above findings we quash and set aside the
communications dated 24.08.2018 and 19.12.2018 addressed by the
Respondent No.4 - Assistant Director - Town Planning, Satara and
Respondent No.5 - Additional Collector, Satara respectively which are
impugned in the present Writ Petition. The necessary consequences in
respect of the Petitioners' case shall follow.
21. With the above directions, the Writ Petition is disposed of.
However, there shall be no order as to costs.
[ MILIND N. JADHAV, J. ] [ S. J. KATHAWALLA, J.]
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2022.03.23
13:09:28 +0530
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