Bombay High Court
Public Kind Trust vs Ulhasnagar Municipal Corporation , ... on 19 December, 2023
2023:BHC-AS:38312-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 6 OF 2021
1. Vijay Nanikram Bhatia
Age : 41 years, Occu.: Business,
R/o. 104/B, New Shanti Sagar CHS,
Ulhasnagar-421001
Pan No. : AAWPB2906L
Mobile no : 9890092005
Email id : [email protected]
2. Gangadhar Motiram Chandnani
Age : 54 years, Occu.: Business,
R/o.: Chhugam Sagar
Plot no.801,
Opp. Old tel. Exchange
Ulhasnagar - 421003
Pan No. : AATPC4880B,
Mobile - 9850043070
E-Mail ID : [email protected]
3. Lal Pherumal Jewani
Age : 52 years, Occu. : Business,
R/o.: Flat.no. 109,
Hira Panna Apptment Goal Maidan,
Ulhasnagar - 421001
Pan No.: AARPJ3833H,
Mobile - 9822297808
Email id : [email protected]
4. Haresh Lachmandas Ramrakhyan,
Age : 47 years, Occu.: Business
R/o.: Shanti Sagar 502
Ulhasnagar 421001,
Pan No.: AIRPR2190K;
Mob.No.: 9324764377
5. Haresh Chhataram Bhatia
Age : 52 years, Occu.: Business
R/o.: Bhatia Hardwear, Japanibazar
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Ulhasnagar421002
Pan No.: AAWPB4849A
Mob.No.:9822376266 ..... Petitioners
VERSUS
1. The State of Maharashtra
Through Department of Urban
Development,
Mantralaya, Mumbai - 400032
2. The Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai - 400032
3. The Director of Town Planning,
Maharashtra State, Central Building
Pune - 1
4. The Joint Director of Town Planning,
Konkan Division, Konkan Bhavan,
Belapur, Navi Mumbai - 400014
5. Center for Environmental Planning & Technology,
The Divisional Commissioner,
Kasturbai Lalbai Campus,
University Road,
Navrangpura, Ahmedabad 380009
6. Ulasnagar Municipal Corporation,
Through its Commissioner,
1st Floor, Main Building,
Opp. Baba Sevadas Darbar,
Near State Bank of India, Ulhasnagar,
District, Thane 421033
7. The Mayor,
Ulhasnagar Municipal Corporation,
1st Floor, Main Building,
Opp. Baba Sevadas Darbar,
Near State Bank of India, Ulhasnagar,
District Thane 421003
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8. The Commissioner,
Ulhasnagar Municipal Corporation,
1st Floor, Main Building,
Opp. Baba Sevadas Darbar,
Near State Bank of India,
Ulhasnagar,
District Thane 421003
9. The Assistant Director of
Town Planning,
Ulhasnagar, District Thane .... Respondents.
WITH
PUBLIC INTEREST LITIGATION NO. 37 OF 2018
Public Kind Trust
Shop No. 2, Hari Om Apt.,
Blk. C-33/R-123-124,
Opp. Chopda Court,
Ulhasnagar - 421 003 ... Petitioner
Versus
1. Ulhasnagar Municipal Corporation
Through its Commissioner
having its office at 1st Floor,
Main Building,
Opp. Baba Shewadas Dharbar,
Nr. State Bank of India,
Ulhasnagar - 421 003.
2. The Director of Town Planning Department
Central Building, Opp. Sasoon Hospital,
Sadhu Vaswani Chowk
Pune - 1
3. Joint Director of Town Planning
Konkan Division, Konkan Bhavan,
Belapur, Navi Mumbai - 400014
4. Centre for Environment Planning
and Technology
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Kasturbai Lalbai Campus
University Road,
Navrang Pura
Ahmedbad - 380009
5. State Government of Maharashtra
Through its Principal Secretary - I
Urban Development Department,
4th Floor, Mantralaya,
Madam Cama Road,
Mumbai - 400032. ....Respondents.
Mr. Devdatt Prabhakar Palodkar for the Petitioners in PIL No.6 of
2021.
Ms. Minal Chandnani for the Petitioner in PIL No.37 of 2018.
Mr. P. P. Kakade, GP with Mr. B. V. Samant, AGP for the
Respondent-State in both PILs.
Mr. Suresh Kamble for Respondent Nos.6 to 8 in PIL No.6 of 2021.
Mr. Saket Mone a/w Shrey Shah i/by Vidhi Partners for
Respondent No.1 in PIL No.37 of 2018.
Mr. Huda Diamondwala i/by Diamondwala & Company for
Respondent No.4 in PIL No.37 of 2018.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : AUGUST 10, 2023
PRONOUNCED ON : DECEMBER 19, 2023
JUDGMENT (PER: CHIEF JUSTICE)
1. Heard learned counsel for the respective parties and
perused the records available before us on these two Public
Interest Litigation Petitions (hereinafter referred to as the PIL
Petitions).
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2. Since, common questions of law and facts are involved in
both these PIL Petitions, they are being disposed of by this
common judgment which follows.
3. Under challenge in these PIL Petitions is the Notification
dated 21st April 2017 issued by the Government of Maharashtra in
the Urban Development Department under Section 31 of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter
referred to as the MRTP Act), whereby sanction by the State
Government has been accorded to the draft revised Development
Plan of the city of Ulhasnagar with the Schedule of modifications
as per the Schedule-I appended to the Notification with certain
notes. In PIL Petition No.37 of 2018, the Corrigendum issued by
the Urban Development Department, Government of Maharashtra
dated 23rd June 2017 has also been challenged. The said
Corrigendum dated 23rd June 2017 has been issued on
observation of certain errors, which, according to the State, have
been corrected.
4. The thrust of arguments in support of these PIL Petitions is
that while preparing the Development Plan, various statutory
prescriptions available in the MRTP Act have been flouted. It has
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been stated in this regard by the Petitioners that the provisions
of Section 25 of the MRTP Act, which provides for survey and
preparation of existing land use map have not been adhered to
and the base map, prepared for the said purpose is faulty and far
away from the actual land use on the spot. It has further
been argued that existing land use map should be based on
physical survey where all existing users are to be duly marked,
however, the existing land use map prepared for the preparation
of Master Plan in this case does not identify several land marks
of the town, existing public amenities, some public utilities and
actual use of land. The Petitioners have given certain examples
of such lapses, in the PIL Petitions.
5. It has also been submitted by the learned Counsel for the
Petitioners that various objections were raised to the survey and
existing land use map, however, these objections have been
overlooked by the authorities and hence, the provisions of
Section 25 of the MRTP Act have been flouted.
6. Further submission of the learned Counsel for the
Petitioners is that detailed provisions have been made in the
circulars issued by the State of Maharashtra, dated 19 th June
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1979, 5th June 1985 and 15th June 1992, however, the norms as
prescribed by the State Government in the circulars have not
been followed. Drawing our attention to yet another circular
dated 11th April 2012, which contains further norms for
preparation of draft Development Plan and removal of errors, it
has been submitted that even the provisions made in the said
circular have not been followed. Pointing out the flaw in the
process of preparation of base map, it has been stated that
identity of certain properties situate in the city, could not be
ascertained. The Petitioners have stated that in absence of
appropriate base map the Government built properties like
barracks, Governments shops which were transferred to the
refugees by the Central Government, lands bearing plots for
residential and commercial and industrial purposes,
encroachment comprising of extension of Government built
properties and constructions and lands under hill slopes and low
lying areas, ought to have been kept outside the purview
of planning for future needs.
7. It has also been submitted by the Petitioners that
objections submitted to the draft Development Plan under
Section 28 of the MRTP Act have also not been considered
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though serious objections were raised and the proposed planning
of the city of Ulhasnagar is full of errors. It is stated further
that in all 17033 objections were raised to the draft Development
Plan as published under Section 36 of the MRTP Act, however,
hearing was conducted only in respect of 2548 objections and rest
all the objections remained unheard. Accordingly, the submission
is that the procedure adopted by the Planning Committee
constituted under Section 28 of the MRTP Act, while hearing and
deciding the objections raised against the draft Development
Plan, is illegal. It has also been argued by the learned Counsel
for the Petitioners that the draft Development Plan submitted by
Respondent No.6 - Corporation was scrutinized by the Director
of Town Planning, Government of Maharashtra which submitted a
report raising serious objections to the draft Development Plan,
opining that implementation of such a plan, practically, is not
possible.
8. It is stated by the Petitioners that the State Government,
instead of taking a note of the serious objections raised by the
Director of Town Planning and without considering the same,
took a decision to accord sanction to the draft Development Plan
and accordingly issued the impugned Notification on 21 st April
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2017. The Petitioners have relied upon the judgment in the case
of Bangalore Medical Trust Vs. B.S. Mundappa and Ors.1 to
submit that protection of environment, open spaces for
recreation and fresh area, playgrounds for children and other
conveniences and amenities are matter of great public concern
and it should be taken care of in every development scheme or
plan, however, while preparing the Development Plan, need of
the residents of the city have been ignored. Reliance has also
been placed on behalf of the Petitioners on yet another judgment
of the Hon'ble Supreme Court in the case of Vellore Citizens'
Welfare Forum Vs. Union of India & Ors.2, and it has been
argued that in this judgment much emphasis has been laid on
protection of environment but while preparing the Master Plan for
the city of Ulhasnagar, the Respondents have been unmindful of
such needs of the general public. Reliance has also been placed
on the judgment of the Hon'ble Supreme Court in the case of
Manohar Joshi Vs. State of Maharashtra & Ors.3. Learned
Counsel for the Petitioners have also relied on the judgment of the
Apex Court in the case of Municipal Corporation of Greater
1 (1991) 4 SCC 54
2 (1996) 5 SCC 647
3 (2012) 3 SCC 619
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Mumbai and Others Vs. Hiraman Sitaram Deorukhkar 4. The
judgment in the case of Mayor, Municipal Corporation Vs.
Govind Bajirao Navpute5 has also been put into service by the
learned Counsel for the Petitioners for emphasizing that in case of
violation of any of the statutory provisions of the MRTP Act and in
case of failure of authorities in performance of their statutory
duties, has to necessarily lead to quashing of a plan prepared by
flouting the statutory provisions. The Petitioners have also relied
on the judgment of a coordinate Bench of this Court in the case of
Govind B. Navpute Vs. the State of Maharashtra & Ors.6
9. Vehemently opposing the PIL Petitions, the learned State
Counsel and the learned Counsel representing the Respondent
Corporation have submitted that the impugned Notification dated
21st April 2017 and the Corrigendum dated 23rd June 2017
according sanction by the State Government to the draft
Development Plan for the city of Ulhasnagar do not suffer from
any illegality, as the plan has been prepared and approved
strictly following the various statutory stages in terms of the
provisions contained in the MRTP Act. It has also been argued
4 (2019) 14 SCC 411
5 (2020) 18 SCC 736
6 judgment dated 05.08.2016 in WP 1981/2016 (Aurangabad Bench)
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that the MRTP Act is a State Legislation and as held by the
Hon'ble Supreme Court in the case of Pune Municipal
Corporation & Anr. Vs. Promoters and Builders
Association & Anr.7 when any legislative function is exercised,
unless some unreasonableness or arbitrariness is pointed out in
the procedure, it is not open for the Court to interfere in such
matters. Reliance has also been placed on behalf of the
Respondents on the judgment in the case of Ramdas s/o.
Marotrao Kathle & Ors. Vs. The State of Maharashtra &
Anr.8, wherein it has been held that the nature of inquiry in
public hearing contemplated for the procedure for enactment of
delegated piece of legislation may be a condition precedent in
enacting such subordinate legislation, however, the nature and
extent of such inquiry in public hearing is in the discretion of the
legislating body and that it is not open to question on the ground
that the same is lacking in terms of extent. Citing the judgment
in Ramdas (supra), it has also been argued on behalf of the
Respondents that the scope of judicial review in matters relating
to such delegated piece of legislation concerning publication of
7 (2004) 10 SCC 796
8 judgment dated 18.10.2016 in WP No.1501/2016 a/w. connected matters (Nagpur
Bench)
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Development Plan is limited and inquiry by the Courts in such
matters has to be confined to the issue as to whether the
procedure as contemplated in the Act or the Legislation under
which such subordinate legislation is issued, have been complied
with or not.
10. We have given our anxious consideration to the rival
submissions made by the learned counsel representing the
respective parties.
11. City of Ulhasnagar in the District of Thane, State of
Maharashtra is a town largely inhabited by Sindhi migrants in the
aftermath of partition. It is stated by the Petitioners that Master
Plan for the city was first prepared in the year 1951 wherein all
lands lying in the city were divided in such a manner that existing
barracks, which were initially set up during the second world war,
were laid into these marked places and that all other vacant lands
were divided into residential, commercial, industrial places and
were marked with plot numbers which were provided access
through Master Plan roads.
12. The State Legislature, with a view to provide for planning
and development and use of land and also for constitution of
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Regional Planning Boards and to make better provisions for
preparing Development Plan to ensure that the town planning
schemes are made in a proper manner and their execution is made
effective and also with a view to create new towns by
development authorities, enacted the Maharashtra Act No.XXXVII
of 1966 i.e. the Maharashtra Regional and Town Planning Act,
1966. The said Act, inter alia, provides for establishment of
Regions and alteration of its limits and constitution of Regional
Planning Boards. It also provides for preparation of regional plans
with a view to secure planned development and use of land in a
region. Apart from making provisions for preparation of regional
plans, the Act also provides for preparation of Development Plan.
13. As a first step for preparation of Development Plan, Section
21 of the MRTP Act requires that every Planning Authority shall
carry out a survey, prepare an existing land use map and
prepare a draft Development Plan for the area within its
jurisdiction in accordance with the provisions of the MRTP Act.
Section 21 also requires that after preparation of the draft
Development Plan, same has to be submitted to the State
Government for according its sanction. Section 22 provides, as
to what a Development Plan shall contain, according to which a
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Development Plan has to contain various provisions so that
development of the region may be ensured in a planned and not
in haphazard manner. For preparing a Development Plan, the
Planning Authority under Section 23 of the MRTP Act is required
to make a declaration of its intention to prepare a Development
Plan. The Planning Authority is also required under the said
provision to publish such notice in the Official Gazette and in the
newspapers as well inviting suggestions and objections from the
public within the period specified under Section 23 of the MRTP
Act. The Planning Authority is also required to resolve to appoint
a person as a town planning officer at the time of declaration of
intention to prepare a Development Plan and thereafter under
Section 25 of the MRTP Act, survey of the lands within the
jurisdiction of the Planning Authority is to be conducted and
existing land use map indicating the existing use of land is to be
prepared. Under Section 26, after the survey and preparation of
existing land use map in terms of Section 25, the Planning
Authority prepares a draft Development Plan and publishes a
notice in the Official Gazette inviting objections and suggestions.
Section 28 provides for the provisions in respect of the
objections to draft Development Plan, according to which, in
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case any objection or suggestion is received from any person by
the Planning Authority relating to the draft Development Plan,
the Authority, after considering the report of the Planning
Committee under sub Section (2) of Section 28 of the MRTP Act
and the suggestions and /or objections received by it, shall
modify or change the plan in such a manner as the Authority
thinks fit.
14. As per the requirement of Section 28(2) of the MRTP Act,
the Planning Authority is required to forward objections and
suggestions received by it to the Planning Committee which is to
be appointed by the Director of Town Planning for consideration
of the objections and suggestions for preparation of a report. It
is this report to be prepared under Section 28(2) which is to be
considered by the Planning Authority under Section 28(1) of the
MRTP Act along with suggestions and objections for modifying or
effecting any change in the draft Development Plan. Under
sub-section 3 of Section 28 of the MRTP Act, the Planning
Committee is entrusted to make such inquiry as may be
considered necessary. It may also give opportunity of being
heard to any person including representatives of the Government
Departments who may have filed objections or made any
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suggestions in respect of the draft Development Plan and after
consideration of the same, the Planning Committee is required to
submit its report to the Planning Authority. Such report is
required to be considered by the Planning Authority as per the
provisions contained in Section 28(4) including the objections
and suggestions received by it which shall make a list of
modifications and changes and carry out the same in the draft
Development Plan as the Authority may consider proper. The
Planning Authority is thereafter required to publish the list of
modifications or changes made in the draft Development Plan for
opinion of the public.
15. As per Section 30, the Planning Authority is required to
submit a draft Development Plan along with a list of modifications
or changes made under Section 28(4) to the State Government,
whereupon the State Government, after consulting with the
Director of Town Planning, may sanction the draft Development
Plan submitted to it by way of publication of a notification to the
said effect in the official gazette. This sanction, however, can be
accorded by the State Government with or without modification or
draft Development Plan may be returned to the Planning Authority
or the Government may refuse to accord its sanction and direct
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the Planning Authority to prepare a fresh Development Plan.
16. The impugned Notification dated 21st April 2017 and the
Corrigendum issued thereto dated 23rd June 2017 are referable
to Section 31 of the MRTP Act, whereby, as observed above, the
State of Maharashtra has accorded its sanction to the above
Development Plan submitted by the Planning Authority i.e. the
Ulhasnagar Municipal Corporation.
17. In the instant case, as per the averments made in the PIL
Petitions, the first Master Plan as per the provisions of the MRTP
Act was prepared in the year 1974. On 7th March 2005 a
resolution was passed by the Ulhasnagar Municipal Corporation
declaring its intention to prepare the revised Development Plan
and also appointing the Director of Town Planning or the
Assistant Director of Town Planning of the State Government as
the Town Planning Officer and accordingly, a notice in the Official
Gazette of such intention was published. However, the General
House of the Ulhasnagar Municipal Corporation passed another
resolution on 10th March 2010 for preparation of a revised
Development Plan and accordingly, declaration of intention to
prepare a Development Plan for the city of Ulhasnagar under
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Section 23 of the MRTP Act read with Section 38 of the MRTP was
published on 27th May 2010. By said notice, suggestions and
objections were invited from citizens which were required to be
submitted to the Commissioner of the Municipal Corporation.
After conducting survey and preparation of land use map etc. the
draft Development Plan was prepared and notice under Section
26(1) of the MRTP Act was published inviting suggestions and
objections from public on the draft Development Plan and also for
preparation of the report. The notice was published in the Official
Gazette dated 4-10th April 2013 with a stipulation therein that the
objection relating to the draft Master Plan shall be considered
before the said plan is submitted to the State Government under
Section 30 of the MRTP Act. The Planning Committee, in terms of
the requirements of Section 28 of the MRTP Act, was constituted
which also invited objections and prepared its report and
thereafter, on 2nd July 2014, the Municipal Corporation submitted
the entire material to the State Government seeking its sanction
as per the requirement of Section 30 of the MRTP Act. It is to be
noted that the letter dated 2nd July 2014, whereby the approval /
sanction of the State Government, as required under Section 30
or 31, was sought, clearly mentions that the draft Development
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Plan was prepared by following the procedure as prescribed under
the MRTP Act. As per the said letter, the town Planning Authority
appointed for preparing the draft Development Plan, prepared and
revised the Development Plan and the report and submitted the
same for approval of the Planning Authority. The letter also states
that following the provisions of Section 26 and 28 of the MRTP Act,
the Planning Committee was formed and accordingly, the
Development Plan was published in terms of the provisions of
Section 26 of the MRTP Act and on approval of the same by the
General House of the Ulhasnagar Municipal Corporation, wide
publicity was given to the same. The letter also states that 17033
objections and suggestions were received on the draft
Development Plan and such objections and suggestions were
taken note of by the Planning Committee which even provided
hearing and accordingly prepared a summary of its
recommendations. It is on the said submissions of the draft
Development Plan by the Ulhasnagar Municipal Corporation that
the State Government has accorded its sanction by the impugned
Notification and the Corrigendum issued thereto, with certain
modifications.
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18. First and foremost question which arises for consideration of
this Court in this Case is as to what is the extent of judicial scrutiny
permissible by this Court under Article 226 of the Constitution of
India in such matters. The Development Plan, as observed above,
in relation to any city or town is prepared under the statutory
scheme of the MRTP Act 1966. If we examine the scheme
contained in Section 21 to 31 of the MRTP Act, what we find is that
the statutory scheme takes adequate precaution to consider the
objections raised against and suggestions tendered in relation to
the proposed Master Plan from the members of the general public
or citizenry.
19. The Development Plan, thus, prepared under the statutory
provisions of the MRTP Act is a subordinate piece of legislation,
in the sense, that it is prepared and sanctioned by the
authorities described in the said Act as per the procedure
prescribed therein. The Development Plan, thus, being a piece of
subordinate legislation, can though be subjected to challenge
before this Court by way of invoking the jurisdiction of the court
under Article 226 of the Constitution of India, however, the scope
and extent of judicial scrutiny permissible in such matters is
limited to ensure if the procedure as prescribed under the
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Statute has been strictly followed or not. Reference in this
regard may be made to the law laid down by the Hon'ble
Supreme Court in the case of Pune Municipal Corporation
(Supra), wherein the subject matter for consideration before the
Court was amendment to the Development Control Rules as
sanctioned by the State Government under the MRTP Act. The
Hon'ble Supreme Court clearly held that the power of amending
the Development Control Regulations is a legislative function and
therefore, such power has to be viewed as repository of
legislative power. It has been held in the said judgment by the
Hon'ble Supreme Court that while exercising legislative functions,
unless there is unreasonableness or arbitrariness, it is not open
for the court to interfere.
20. It is also apposite at this juncture to refer to the judgment
of the Division Bench of this Court in the case of Ramdas
(supra). The said matter related to challenge to a Notification
issued by the State Government under Section 37(2) of the MRTP
Act, whereby modifications in the Development Plan for the city of
Nagpur with certain conditions were sanctioned. Ramdas
(supra) refers to the judgment in the case of Pune Municipal
Corporation (supra) and it has been opined that the delegated
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legislation cannot be questioned for violation of the principles of
natural justice in its making except where the Statute itself
provides for that requirement. Ramdas (supra) also relies upon
a judgment of the Hon'ble Supreme Court in KT Plantation Pvt.
Ltd. & Another Vs. State of Karnataka AIR 2011 SC 3430,
wherein it has been held that the legislature or its delegate is not
legally obliged to give any reasons for its action while discharging
its legislative functions. The observations made by the Division
Bench of this Court in paragraph 43 of the judgment in the case
of Ramdas (supra) is extracted hereinbelow:
"43. The Constitution Bench of Hon'ble Supreme Court
consisting of Hon'ble Seven Judges, in the case of M/s. Prag
Ice and Oil Mills and another .vs. Union of India
reported in (1978) 3 SCC 459 was considering a challenge
to the Mustard Oil (Price Control) Order, 1977 - a
subordinate legislation enacted by the Central Government
in exercise of powers vested in it under Section 3 of the
Essential Commodities Act. It will be appropriate to refer to
the following observations of Their Lordships:
"71. To sum up, it seems to us impossible to accept
the contention of the petitioners that the impugned
Price Control Order is an act of hostile discrimination
against them or that it violates their right to property
or their right to do trade or business. The petitioners
have taken us into the minutest details of the
mechanism of their trade operations and they have
attempted to demonstrate in relation thereto that a
factor here or a factor there which ought to have been
taken into account while fixing the price of mustard oil
has been ignored. Dealing with a similar argument it
was observed in Metropolis Theater Company v. City of
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Chicago(1) that to be able to find fault with a law is not
to demonstrate its invalidity.
"It may seem unjust and oppressive, yet be free
from judicial interference. The problems of government
are practical ones and may justify, if they do not
require, rough accommodations, illogical, it may be,
and unscientific. But even such criticism should not be
hastily expressed. What is best is not always
discernible; the wisdom of any choice may be disputed
or condemned. Mere errors of government are not
subject to our judicial review. It is only its palpably
arbitrary exercises which can be declared void....
" The Parliament having entrusted the fixation of
prices to the expert judgment of the Government, it
would be wrong for this Court, as was done by common
consent in Premier Automobiles to examine each and
every minute detail pertaining to the Governmental
decision. The Government, as was said in Permien
Basin Area Rate Cases, is entitled to make pragmatic
adjustments which may be called for by particular
circumstances and the price control can be declared
unconstitutional only if it is patently arbitrary,
discriminatory or demonstrably irrelevant to the policy
which the legislature is free to adopt. The interest of
the producer and the investor is only one of the
variables in the "constitutional calculus of
reasonableness' and Courts ought not to interfere so
long as the exercise of Governmental power to fix fair
prices is broadly within a "zone of reasonableness'. If
we were to embark upon an examination of the
desperate contentions raised before us on behalf of the
contending parties we have no doubt that we shall have
exceeded our narrow and circumscribed authority."
21. It is also to be noticed that nature of inquiry with respect to
consideration of objections furnished by the members of the
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general public to the draft Master Plan is also limited in view of
the law laid down by the Hon'ble Supreme Court in the case of
Union of India & Anr. Vs. Cynamide India Ltd. & Anr. (1987)
2 SCC 720, reference of which has been given in Ramdas
(supra). Paragraph 45 of the Ramdas (supra) is extracted
hereinbelow:
"45. It will also be appropriate to refer to the observations
of Their Lordships of the Apex Court in the case of Union of
India and another vs. Cynamide India Ltd. and another
reported in (1987) 2 SCC 720.
"6. Occasionally the legislature directs the subordinate
legislating body to make 'such enquiry as it think fit'
before making the subordinate legislation. In such a
situation, while such enquiry by the subordinate
legislating body as it deems fit is a condition
precedent to the subordinate legislation, the
nature and the extent of the enquiry is in the
discretion of the subordinate legislating body and
the subordinate legislation is not open to
question on the ground that the enquiry was not
as full as it might have been. The provision for 'such
enquiry as it thinks fit' is generally an enabling
provision, intended to facilitate the subordinate
legislating body to obtain relevant information from all
and whatever source and not intended to vest any
right in anyone other than the subordinate
legislating body. It is the sort of enquiry which the
legislature itself may cause to be made before
legislating, an enquiry which will not confer any right
an anyone." (emphasis supplied).
22. The Division Bench in Ramdas (supra) has further held that
it is not open for this Court to question the inquiry conducted by
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the authority concerned while exercising its legislative powers to
find out as to whether the inquiry was not as full as it might have
been. The Division Bench further observes that the "only
permissible inquiry would be as to whether the inquiry as
contemplated under the provisions was in fact conducted by it or
not?" Paragraph Nos.47, 48 and 49 of the Ramdas (supra) read
as under:
"47. It could thus be seen that it will not be open for this
Court to question the inquiry conducted by the Authority,
while exercising its legislative powers to find out as to
whether the enquiry was not as full as it might have been.
The only permissible inquiry would be, as to whether the
inquiry as contemplated under the provisions was in fact
conducted by it or not. In view of paragraph 4 in the said
Judgment, the only inquiry that would be permissible for this
Court, would be as to whether the policy and factors are
present in the mind of the authorities exercising powers or
not, as to whether relevant considerations have gone in and
irrelevant considerations are kept out of determination while
exercising powers or not.
48. In our considered view it will, therefore, not be possible
to accept the contention of the petitioners, that the State
Government ought to have taken into consideration, the
detailed objections as raised by the petitioners and recorded
reasons for not accepting the said objections prior to issuing
the impugned notification. As already discussed by us
hereinabove, perusal of the file would reveal that the State
Government has taken into consideration, all the relevant
factors. Perusal of the file would reveal that the objection
raised by the parties and comments thereto by the Planning
Authority were very much available, in the nature of report
submitted by the Commissioner. The views of various
Authorities including the Director of Town Planning were also
very much available before the State Government. The
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minutes of meeting of Heritage Committee were taken into
consideration by the State Government. Not only that, but
specific query was made to the Commissioner of Nagpur
Municipal Corporation, as to whether it was feasible to
maintain width of road to 24 meters, without affecting the
Heritage structure of Murlidhar temple, Kelibag temple and
Gujar gateway. The Commissioner of Nagpur Municipal
Corporation has accordingly replied vide his communication
dt.3.10.2013 stating therein that it was possible to maintain
width of said road to 24 meters after making certain
changes. The said have also been considered by the State
Government while taking final decision. Not only that, but
the impugned notification itself imposes a condition that the
heritage structure of Murlidhar temple, Kelibag temple and
Gujar gateway shall be kept intact, while widening the said
road as per the plan width.
49. It will be appropriate to refer to the following
observations of Their Lordships in the case of State of T.N.
and another vs. P. Krishnamurthy and Others (cited supra).
They are as under:
"15. There is a presumption in favour of
constitutionality or validity of a subordinate
legislation and the burden is upon him who attacks
it to show that it is invalid. It is also well recognized
that a subordinate legislation can be challenged
under any of the following grounds:
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed
under the Constitution of India.
(c) Violation of any provision of the Constitution of
India.
(d) Failure to conform to the statute under which it
is made or exceeding the limits of authority
conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an
extent where the court might well say that the
legislature never intended to give authority to make
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such rules)."
"16. The court considering the validity of a
subordinate legislation, will have to consider the
nature, object and scheme of the enabling Act, and
also the area over which power has been delegated
under the Act and then decide whether the
subordinate legislation conforms to the parent
statute. Where a rule is directly inconsistent with a
mandatory provision of the statute, then, of course,
the task of the court is simple and easy. But where
the contention is that the inconsistency or
nonconformity of the rule is not with reference to
any specific provision of the enabling Act, but with
the object and scheme of the parent Act, the court
should proceed with caution before declaring
invalidity. "
23. It is, thus, clear that there is presumption in favour of the
constitutionality or validity of subordinate legislation and the
burden is upon the Petitioners to challenge it to show that it is
invalid.
24. Thus, from the discussions made above it is clear that the
scope of judicial scrutiny or judicial review by this Court under
Article 226 to subordinate legislation (in the present case, of the
Master Plan) is limited to the extent of finding as to whether the
procedure as given in the statute has been followed or not.
25. If we examine the submissions made by the Petitioners in
this case, what we find is that there is no assertion that the
procedure as given in Sections 21 to 31 of the MRTP Act has not
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been followed. The allegation, rather, is that while considering
the objections and the reports submitted by the authority
concerned as contemplated in Section 26 and 28 of the MRTP Act,
the objections and the reports have not been given due
weightage. The scope of scrutiny in such matters, as observed
above, is confined to ascertaining as to whether the procedure as
given in the MRTP Act has been followed or not. On the basis of
the material available on record of these two PIL Petitions, what
we find is that the provisions of Sections 21 to 31 of the MRTP Act
have been followed, inasmuch as, that first of all, a declaration of
intention to prepare a Development Plan was made under Section
23 with appointment of Town Planning Officer in terms of Section
24 and thereafter the survey was conducted and existing land use
map was also prepared in terms of section 25 of the MRTP Act.
After preparation of existing land use map the draft Development
Plan was prepared and a notice was published in the official
gazette inviting objections from the citizenry. It is also to be seen
that the objections to the draft Development Plan and the report
submitted by the Planning Committee were considered as per the
requirement of Section 28(3) and (4) of the MRTP Act and it is
only thereafter that the draft Development Plan was submitted to
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the State Government by the Planning Authority under Section 30,
seeking its approval / sanction. The State Government,
thereafter, vide impugned Notification and Corrigendum issued
thereto has accorded its sanction to the draft Development Plan
under Section 31 of the MRTP Act with certain modifications which
is permissible as the State Government has been empowered to
sanction the draft Development Plan with or without modification
under Section 31 of the Act.
26. At this juncture, it is noticed that Section 31 of the MRTP Act
provides that on receipt of the draft Development Plan from the
Planning Authority the State Government may consult the Director
of Town Planning and accordingly, forward the Notification to be
published in the Official Gazette. It further provides that the
Government may sanction the draft Development Plan either
without modification or subject to such modifications as it may
consider proper. Section 31 also empowers the State to return
the draft Development Plan to the Planning Authority for
modifying the plan as it may direct. The State Government has
even been vested with the powers to refuse to accord sanction
and direct the Planning Authority to prepare a fresh Development
Plan. Section 31 of the MRTP Act is quoted hereunder:
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"31. (1) Subject to the provisions of this section, and not
later than six months from the date of receipt of such plan
from the Planning Authority, or as the case may be, from the
said Officer, the State Government may, after consulting the
Director of Town Planning by notification in the Official
Gazette sanction the draft Development Plan submitted to it
for the whole area, or separately for any part thereof, either
without modification, or subject to such modifications as it
may consider proper or return the draft Development Plan
to the Planning Authority or as the case may be, the said
Officer for modifying the plan as it may direct or refuse to
accord sanction and direct the Planning Authority or the said
Officer to prepare a fresh Development Plan:
Provided that, the State Government may, if it thinks
fit, whether the said period has expired or not, extend from
time to time, by notification in the Official Gazette, the period
for sanctioning the draft Development Plan or refusing to
accord sanction thereto, by such further period not
exceeding,--
(i) twenty-four months, in the aggregate, in case, the
area of such Development Plan falls in the jurisdiction
of a Metropolitan Planning Committee constituted
under the Maharashtra Metropolitan Planning
Committees (Constitutions and Functions)
(Continuance of Provisions) Act, 1999;
(ii) twelve months, in the aggregate, in any other case,
as may be specified in such notification.
Provided further that, where the modifications
proposed to be made by the State Government or submitted
by the Planning Authority under section 30 and proposed to
be approved by the State Government without any further
change are of a substantial nature with respect to the draft
Development Plan published under section 26, the
Government shall publish a notice in the Official Gazette and
also in not less than two local newspapers inviting objections
and suggestions from any person in respect of the proposed
modifications within a period of one month, from the date of
such notice.
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Provided also that, if the Government does not
publish its decision by notification in the Official Gazette,
regarding sanctioning the draft Development Plan submitted
to it, for the whole area, or separately for any part thereof,
either without modification, or subject to such modifications
as it may consider proper, or return the draft Development
Plan to the Planning Authority, or as the case may be, the
said Officer for modifying the plan as it may direct or refuse
to accord sanction and direct the Planning Authority or the
said Officer to prepare a fresh Development Plan, within the
period under this section, such draft Development Plan shall
be deemed to have been sanctioned as submitted to the
Government under section 30, on the date immediately
following the date of expiry of the period under this section:
Provided also that, where any modification submitted
by the Planning Authority or, as the case may be, the said
Officer, under section 30 is of substantial nature with respect
to the draft Development Plan published under section 26,
such modification shall not be deemed to have been
sanctioned and the Government shall publish a notice
regarding such modifications of substantial nature and the
provisions relating to publication of the notice in the Official
Gazette and two local newspapers for obtaining suggestions
and objections as stipulated in the second proviso, shall
apply.
(2) The State Government may appoint an officer of
rank not below that of a Group A officer and direct him to
hear any such person in respect of such objections and
suggestions and submit his report thereon to the State
Government within one year from the date of publication of
notice under second proviso to sub-section (1).
(3) The State Government shall before according
sanction to the draft Development Plan take into
consideration such objections and suggestions and the
report of the officer.
Provided that, the time-limits as provided in sub-
sections (1) and (2) shall not apply for according sanction to
the modifications published under sub-section (1):
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Provided further that, the Government shall take
final decision regarding such modifications within one year
from the date of receipt of the report from the officer
appointed under sub-section (2).
(4) The State Government shall fix in the notification
under sub-section (1) a date not earlier than one month from
its publication on which the final Development Plan shall
come into operation.
(4A) The State Government may, by notification in the
Official Gazette, delegate all the powers and functions under
this section to the Director of Town Planning in such cases
and subject to such conditions, if any, as may be specified
in such notification.
(5) If a Development Plan contains any proposal for the
designation of any land for a purpose specified in clauses (b)
and (c) of section 22, and if such land does not vest in the
Planning Authority, the State Government shall not include
that in the Development Plan, unless it is satisfied that the
Planning Authority will be able to acquire such land by
private agreement or compulsory acquisition not later than
ten years from the date on which the Development Plan
comes into operation.
(6) A Development Plan which has come into operation
shall be called the "final Development Plan" and shall,
subject to the provisions of this Act, be binding on the
Planning Authority."
27. Once the draft Development Plan is submitted under Section
30 by the Planning Authority seeking sanction of the State
Government, before according its sanction as per Section 31 of
the MRTP Act, the State Government is not under any obligation
to provide any opportunity of hearing to consider the objections
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afresh. The phrase occurring in Section 31 is "as it may consider
proper". Thus, it is for the State Government to sanction the draft
Development Plan if it considers it proper, with or without
modification. The State Government is also, thus, empowered to
return the draft Development Plant to the Planning Authority with
a direction to modify the same if it considers it proper. It may
also refuse to grant the sanction if it is considered proper by the
State Government so to do with a direction to the Planning
Authority to prepare a fresh Development Plan.
28. The true purport of Section 31 of the Act, if analyzed in the
light of the law as discussed above, is that it is the State
Government which is the repository of the exclusive power to
either accord sanction to the draft Development Plan submitted to
it by the Planning Authority or to return it with direction to modify
it or to even refuse the sanction with the direction to prepare a
fresh plan. In such matters, in our opinion, since it is the State
Government which is the exclusive repository of power, the
grounds on which challenge in this petition to the impugned
Notification and the Corrigendum issued thereto has been made,
are not tenable.
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29. We may also note that for challenging any legislation or
subordinate legislation, unless its unreasonableness or
arbitrariness is established, no fault can be found with such an
exercise, provided the procedure for taking out such subordinate
legislation has been followed. In absence of any substantiated
averment in the Writ Petition relating to any flaw in the procedure
followed by the Respondents as stipulated in the MRTP Act,
challenge to the impugned Notification and the Corrigendum
issued thereto by the State Government sanctioning the draft
Development Plan for the city of Ulhasnagar under Section 31 of
the MRTP Act is bound to fail.
30. Resultantly, we find that PIL Petitions are devoid of merits
which are hereby dismissed. There will be, however, no order as
to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2023.12.19
14:56:06
+0530
Basavraj Page| 34
