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2016 Supreme(Bom) 951
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
R.M. BORDE, K.L.WADANE, JJ.
Govind Bajirao Navpute – Appellant
Versus
The State of Maharashtra – Respondent
WP No.1981 of 2016
Decided On : 05-08-2016
For the Appellant :Mr.D.P.Palodkar, advocate, Mr.V.D.Sapkal, advocate, Mr.Pradeep Deshmukh, advocate with Mr.Y.P.Deshmukh, advocate, Mr.V.B.Kale advocate
For the Respondent:Mr.A.B.Girase, Government Pleader, Mr.Vijaysingh Thorat, Senior Counsel i/by Shri J.R.Shah, advocate, Mr.A.M.Karad, advocate
Headnote:
The Court held that the draft development plan was not prepared within the prescribed time limit and the consequences provided under Section 21(4A) of the MRTP Act were already operationalised automatically. The Court further held that the ex post facto sanction cannot be granted for the extension even after the lapse of the period provided under Section 26(1) or under the third proviso there under.
Fact of the Case:
The Petitioners challenged the legality and validity of the notification dated 04.02.2016 published in the Official Gazette under Section 21(1) of the Maharashtra Regional & Town Planning Act, 1966 (for short, “MRTP Act”), calling objections in respect of draft Development Plan prepared and published by the planning authority within a period of sixty days from the date of the order. The Petitioners also challenged the general body resolution adopted by the Municipal Corporation on 28-01-2016 thereby forming and approving revised proposals and submitting the same in the nature of draft development plan and resolving to submit the same for publication to the State Government. Petitioners also sought to quash notification dated 04.02.2016 and the resolution adopted by the General Body of the Municipal Corporation on 28.01.2016.
Finding of the Court:
The Court held that the draft development plan was not prepared within the prescribed time limit and the consequences provided under Section 21(4A) of the MRTP Act were already operationalised automatically. The Court further held that the ex post facto sanction cannot be granted for the extension even after the lapse of the period provided under Section 26(1) or under the third proviso there under.
Issues: 1. Whether the scheme of Chapter III of Maharashtra Regional & Town Planning Act, 1966 as well as the legislative intent excludes elected representatives in the process of preparation of draft development plan? 2. Whether the elected representatives of the Corporation can be permitted to substitute their own proposals in the draft development plan in place of the proposals forwarded by the authority appointed under the MRTP Act? 3. The third objection is regarding lapsing of limitation. Whether the delegated authority can grant ex post facto extension for preparation and publication of draft development plan under Section 26 contrary to the provisions of the Act. The violation of prescription of time limit provides for the consequences and as such, it was impermissible for the delegated authority to grant extension thereby overlooking the mandatory provision prescribing adoption of different mode in the matter of preparation of draft development plan in the event of violation of prescription of time frame ; and 4. The fourth objection is in respect of potential impact on the development of the City as a result of tinkering of the development proposals in large scale at the instance of elected representatives.
Ratio Decidendi: The Court held that the draft development plan was not prepared within the prescribed time limit and the consequences provided under Section 21(4A) of the MRTP Act were already operationalised automatically. The Court further held that the ex post facto sanction cannot be granted for the extension even after the lapse of the period provided under Section 26(1) or under the third proviso there under.
Final Decision: The Court allowed the petition and quashed the notification dated 4.2.2016, published in the Official Gazette, relating to preparation of draft development plan, purportedly under Section 26(1) of the MRTP Act. The Court also quashed and set aside the orders passed by the Director of Town Planning under the delegated authority, granting extension, dated 29.03.2016. The Court declared that the Planning Authority shall be deemed to have failed to perform the duty imposed upon it by or under the provisions of the MRTP Act and the work remaining to be done up to the stage of submission of draft development plan under Section 30, shall be completed by the concerned Divisional Joint Director or Deputy Director of Town Planning and Valuation Department or an officer nominated by him not below the rank of an Assistant Director of Town Planning, as the case may be. The Court further directed that the said officer shall exercise all the powers and perform all the duties of a Planning Authority which may be necessary for the purpose of preparing a Development plan and submitting it to the State Government for sanction and may, notwithstanding anything contained in any other law relating to the funds of the Planning Authority, recover the cost thereof from such funds. The Court also directed that the provisions of subsection (4A) of Section 21 of the MRTP Act shall operate.
R.M. Borde, J.
1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2. Respective petitioners are questioning legality and validity of the notification dated 04.02.2016 published in the Official Gazette under Section 21(1) of the Maharashtra Regional & Town Planning Act, 1966 (for short, “the MRTP Act”), calling objections in respect of draft Development Plan prepared and published by the planning authority within a period of sixty days from the date of the order. It is recorded in the notification that in view of Section 30 of the MRTP Act, revised development plan would be submitted for approval to the State Government and before its submission to the State Government, the objections and claims would be considered.
3. Petitioners are also questioning general body resolution adopted by the Municipal Corporation on 28-01-2016 thereby forming and approving revised proposals and submitting the same in the nature of draft development plan and resolving to submit the same for publication to the State Government. Petitioners are also seeking to quash notification dated 04.02.2016 and the resolution adopted by the General Body of the Municipal Corporation on 28.01.2016. Petitioners are also praying for setting aside of the orders dated 29.03.2016 issued by Respondent No.3 i.e. Director of Town Planning, Pune under delegated powers exercisable by the State Government granting extension for a period of one year in exercise of powers under subsection (1) of Section 26 of the Act of 1966.
4. Before its conversion to the Municipal Corporation, there existed a Municipal Council for Aurangabad city and final development plan for Aurangabad Municipal Council area was published in the 1975, which was revised in the year 2002. Aurangabad Municipal Corporation came to be established vide Government notification dated 03.12.1982 with effect from 08.12.1982. At the time of establishment of the Municipal Corporation in the year 1982, 18 villages were included in the Municipal limits, which is an “additional area” forming part of the Municipal Corporation. A development plan for “additional area” came to be published in the Official Gazette on 15.10.1991 effective from 19.11.1991. At a later point of time, Cidco area was de-notified and as a result thereof an area to the extent of 209.88 hectares was included within the jurisdiction of the Aurangabad Municipal Corporation, and revision in respect of final development plan adopted in the year 1999 includes preparation of development plan for Cidco de-notified area as well as Shivajinagar area. A declaration of intention under Section 23(1) read with Section 31 of the MRTP Act was published to prepare revised development plan for “additional area”, Cidco de-notified area, etc., on 20.01.2004 and 18.02.2006. On 01.09.2007, request was tendered to the State Government by Aurangabad Municipal Corporation to establish a special unit of Town Planning Department for preparation of revised development plan. A declaration under Section 23(1) read with Section 38 of the MRTP Act came to be published in the Official Gazette to prepare revised development plan for the area de-notified by Cidco, Aurangabad and newly added Shivaji Nagar area on 14.10.2010. The State Government has consented for establishment of Special Planning Unit for the purposes of preparation of draft development plan. A special unit of Town Planning Department working at Sangli-Miraj-Kupwad Corporation after completion of work at the said place came to be transferred for completion of job at Aurangabad Municipal Corporation.
5. A second declaration under Section 23(1) read with Sections 34 and 38 of the MRTP Act came to be published in the Official Gazette declaring intention to prepare Revised Development Plan for additional area i.e. Cidco de-notified area and newly added Shivajinagar area, on 07.02.2013. On 05.02.2013, the Town Planning Officer came to be appointed f
