Bombay High Court
Vidarbha Heritage Society And Ors. vs State Of Maharashtra And Ors. on 21 April, 2006
Equivalent citations: 2006(4)BOMCR577
Author: A.H Joshi
Bench: D.S Zoting, A.H Joshi
JUDGMENT Joshi A.H., J.
1. Hearing of the Writ Petition No. 2340 of 2001 together with this petition has been expedited by the Honble Apex Court, as certain interlocutory orders passed by this Court were questioned before the Apex Court. This Court, therefore, by consent of parties, fixed the Writ Petitions for final disposal. Contesting parties have completed the pleadings.
By consent of all the parties, the Writ Petitions are taken up for final disposal at the stage of admission hearing.
Hence Rule. Rule is returnable forthwith, and is taken up for final disposal as aforesaid. Since three petitions are based on the main cause of finalization of List, retention or deletion in the List of Heritage Structures/Precincts, all these petitions are heard together, are, however, decided by separate Judgment and orders.
2. In the own language of the petitioner, it has described in para 2 of petition the nature of lis prosecuted by it as follows:
2. The petitioner submits that the petitioner Society is approaching this Hon'ble Court in public interest and in the interest of proper development and preservation of the heritage and cultural and natural attributes of Nagpur City and is filing the present petition in a representative capacity and in the interest of public and specifically residents of Nagpur.
It is seen that the petitioner-Society was constituted in 1997. Brief background leading to present lis is as hereinafter:
3. Maharashtra Legislature passed the Amending Act No. 39 of 1994 amending certain definitions contained in the Maharashtra Regional & Town Planning Act, 1966 and introduced some definitions. The amended definition of Development' reads as follows:
Section 2:
(7) "development" with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land for any material or structural change in any heritage building or its precinct and includes demolition of any existing building structure or erection or part of such building, structure of erection; and reclamation, redevelopment and lay-out and sub-division of any land; and to develop' shall be construed accordingly;
Certain Clauses in Section 2 were added as Clauses (13A), (13B) and (13C). Clauses (13B) and (13C) are quoted below:
(13B) Heritage building, means a building, possessing architectural, aesthetic, historic or cultural values which is declared as heritage building by the Planning Authority in whose jurisdiction such building is situated;.
(13C) "Heritage precinct" means an area comprising heritage building or buildings and precincts thereof or related places;.
4. In furtherance to the Amending Act No. 39 of 1994, the Government of Maharashtra directed, inter alia, to the Municipal Corporation of Nagpur City "to formulate modification proposal to include the Regulations provisions for conservation of buildings having historical importance and buildings having architectural value" in the Sanctioned Development Control Regulations for the area within its jurisdiction and to submit the same to the Government along with a list of such buildings and publish the same in the Government Gazette for inviting suggestions and objections from public at large and also directed constitution of Heritage Conservation Committee.
Municipal Corporation of Nagpur City [hereinafter referred to as the Corporation'] thereafter constituted a Committee of nine members under the chairmanship of Shri B.N. Zamre, retired Municipal Commissioner, on 13th August, 1997. The Corporation thereafter submitted draft Regulations along with List of Historical and Architectural Buildings, Precincts etc. The Heritage Conservation Committee had initially furnished the proposal consisting of 300 Items. The said Committee and, in turn, the Corporation later on, after re-considering the issue, revised the list and furnished it, which consisted only of 204 items.
5. The Government of Maharashtra, after consulting the Director of Town Planning, Maharashtra State, Pune, decided to publish draft Regulations and the List for inviting suggestions and objections from general public as required under Section 31(1) of the Maharashtra Regional & Town Planning Act, as Government Resolution No. TBS/2491/ 1835-CR-86-91-UD-9, dated 16th February, 2000, thereby publishing the draft of the Regulations described therein as "Regulations for Conservation of Buildings, Artefacts, Structures, Areas and Precincts of Historic and/or Aesthetic and/or Cultural Significance [Heritage Buildings and Heritage Precincts] and/or Natural Features of Environmental Significance for the City of Nagpur".
The said draft Regulations contains an accompaniment consisting of list of 204 buildings and precincts or premises of natural features. By this Notification objections/suggestions etc., were invited from the public at large. Deputy Director of Town Planning, Nagpur Division, Nagpur, was appointed as an Officer under Section 31(2) of the Maharashtra Regional & Town Planning Act, to hear the persons who had filed their objections/suggestions within 60 days from the date of publication of the notice.
6. According to the petitioner, issuance of the said Government Resolution and constitution of a Heritage Committee were the result of this Court's direction issued in Writ Petition Nos. 1100 of 1996 and 785 of 1996 and Writ Petition No. 597 of 1997, which were filed by present petitioner.
According to the petitioner, by virtue of issuance of the Draft Notification, dated 21st February, 2000 and as per Resolution No. 6.1, no alteration, renovation or demolition was possible. However, the petitioner-Society found that developmental activity, which amounted to alteration of the heritage status to new construction, was being done by respective owners or developers. Petitioner, therefore, approached this Court by filing Writ Petition No. 2340 of 2001 and prayed for the reliefs which read as follows:
1. Direct the respondents to take steps to ensure that heritage structures are not demolished in the future.
2. Direct the respondents to penalise those responsible for demolition of heritage structures under Section 52 of the MRTP Act and refuse them sanction for new construction on the same site.
3. By way of interim directions, direct the respondents to immediately take steps to stop future demolitions, damage, alterations to heritage structures and buildings.
7. The Writ Petition No. 2340 of 2001 was heard from time to time and various orders were passed. This Court passed an order on 16th April, 2002, part whereof relevant for this Judgment can be construed as a direction which reads as follows:
...It would be proper on the part of respondent No. 4 to re-examine the List of Heritage Buildings and Precincts so as to justify their notification and categorization showing that the said piece of monuments, who have a history, justify their preservation and protection.
8. It appears that the Heritage Conservation Committee gave some suggestions, and expressed that 153 buildings and precincts, which deserve nomenclature as 'Heritage Buildings/Heritage Precincts', be retained, and rest can be deleted. Petitioner has expressed strong reservations against change of stance by the Committee. According to the petitioner, the Committee's stand was changed due to change of chairpersons who entered the office, namely Mr. Thool, former Deputy Director of Town Planning. It is seen that the proceedings to be undertaken, namely recommendations by Heritage Committee and hearing by the Deputy Director of Town Planning, Nagpur, were completed and report was furnished to the Government. This Court directed, by Order, dated 28th April, 2003, to complete the procedure of re-consideration by following the procedure under Section 31(1) within 12 weeks and also gave some other directions for preservation of heritage structures. It is seen that the State Government did not comply with the directions contained in the order passed by this Court on 28th April, 2003. Ultimately, on the basis of affidavit filed before this Court, this Court recorded in its order, dated 13th April, 2003, as follows:
An affidavit has been filed by Shri Ramanand Tiwari, Principal Secretary to the State Government, Urban Development Department, Mumbai, on 3rd October, 2003, stating therein that scrutiny of Regulations and finalization of List has taken more time than prescribed by this Court for the reasons already explained in the affidavit, and that the Regulations and finalization of List shall be published on 15th October, 2003.
9. As stated before this Court in the Affidavit referred to in the foregoing para, the Government of Maharashtra issued the Government Resolution, dated 15th October, 2003, which has been published in the Gazette on 18th October, 2003. By this Notification, Government has notified the Regulations as finally approved. The Regulations contained an accompaniment - a list titled as List of Heritage Buildings & Conservation Areas proposed to be deleted' consisting of description of 66 Items.
10. It is seen that in the course of hearing of Writ Petition No. 2340 of 2001 on 15th December, 2003, certain submissions were made by parties, making a grievance about finalization of 66 items proposed to be de-listed. This Court, thereupon, recorded as follows:
The learned Counsel for respondents seek time to file replies to the application for amendment.
The learned AGP states that the notification only proposes to delete 66 heritage structures from the concerned list. She further states that the notice was published on 18.10.2003, the period of 60 days for raising objections is yet to expire and after the expiry of 60 days period, the process of finalisation will start.
The learned AGP to make a statement about stage of procedure which is. being followed under Section 31(1) of Maharashtra Regional and Town Planning Act, 1966.
S.O. to 18.12.2003. By that time, the respondents shall file replies to the amendment application.
The petitioner to supply copies of amendment application to the concerned respondents.
On the next date, Civil Application No. 6420 of 2003 shall also be heard.
In view of above quoted Order, dated 15th December, 2003, the objections were required to be re-heard. Deputy Director of Town Planning, Nagpur Division, Nagpur, was appointed by the Government to hear the objections. The Writ Petition was kept pending awaiting orders to be passed by the Government upon the objections, suggestions etc.
11. When the Writ Petition with Writ Petition No. 2340 of 2001 was listed on board on 21st December, 2004, learned Asstt. Govt. Pleader informed the Court that Government had issued appropriate notification after hearing etc. and modifying the List of Structures proposed to be deleted. Copies thereof were ordered to be supplied to the parties. It is seen that by Government Resolution, dated 16th December, 2004, finally the deletion was proposed to the extent of 49 Heritage Structures/precincts as against provisionally notified 66 items.
Writ Petition No. 211 of 200512. Writ Petition No. 211 of 2005 was filed challenging the Government Resolution, dated 15th October, 2003, [notified on 18th October, 2003], and subsequent Govt. Resolution, dated 16th December, 2004. This Writ Petition and the Writ Petition No. 2340 of 2001 were listed for admission hearing on board on 19th January, 2005
13. Now what is under challenge is (1) the List proposing deletion of 66 structures, though it is modified and (2) the List of 49 structures/precincts deciding to delete those from Regulations.
It is seen that what is not under challenge is (a) the Regulations pertaining to Heritage Buildings etc., and (b) list of 204 structures/precincts have become final, as none has challenged those.
14. In earlier stages of hearing of Writ Petition No. 211 of 2005, this Court had directed the petitioner to objectively demonstrate as to how certain structures call for being retained. Petitioner has filed an affidavit, which is at Pages 85 to 93 and annexures thereof are up to page No. 141, bringing on record certain narration of structures which are sought to be deleted to which the petitioner was objecting. According to the petitioner, most of these structures are required to be retained on account of their architectural style etc., however, in respect of certain comparatively new and modern buildings, even though they may not have a historical significance, those need to be retained and protected. Petitioner has placed on record with affidavit certain photographs and description of various structures which, according to the petitioner, are heritage structures etc., and stating that the description therein contains the reasons and grounds proving the reasons for preservation thereof.
15. On the request of learned Advocate for the petitioner, this Court had directed the Government to keep records regarding hearing and decision under section 31 of the Act available, since it was very clearly given to understand to the parties that the Writ Petitions are to be finally disposed of at the stage of admission itself. The Government had, therefore, made the records available. Learned Advocates for the parties were permitted to take inspection thereof as well draw extracts.
It is seen that the Government had examined the matter by preparing a tabulated statement where the narration of structures, as given in the Official Gazette in which columns for incorporating therein the objections/suggestions, the conclusions or recommendations of the Authority hearing the objections and the recommendation given by the Department and the decision taken by the Government have been added. Advocates for the petitioners and respondents as well took the Court through this tabulated record involved in decision-making and the decision recorded therein and advanced respective submissions on that basis.
16. Writ Petition has been opposed by different groups of respondents, namely (a.) Municipal Corporation of City of Nagpur, (b.) property owners, (c.) State Government. Category (b.) aforesaid includes owners and occupiers whose properties are deleted and who shall be adversely affected if the petition succeeds, and they have been added as respondents or as interveners, as according to them, they were in possession of certain properties, however, due to certain developmental scheme of the Nagpur Improvement Trust and under agreements with the land owners, were provided with alternate sites, which sites are forming part of Heritage List consisting of 204 items, however, are now deleted in view of the Government decision, dated 15th October, 2003, notified on 18th October, 2003. The intervention was granted and applications which contained detailed averments were treated as return to the petition, and were made part of record of Writ Petition No. 211 of 2005.
17. Summary of submissions advanced by the parties opposing the petition is as hereinafter.
Petitioner's submissions:
18. Submissions of learned Advocate Mr. Dharmadhikari, as can be grasped from the contents of the petition, from Notes of Written Submissions, and as urged orally including reply to respondents' arguments are as follows:
[a] The State Government has failed to apply mind legally and correctly, and has finalized the list of deletion and this action of Government is illegal, unjust and deserves to be set aside.
[b] The Heritage Conservation Committee was rendered non-functional. Initially, 300 structures were proposed to be included in the List of Heritage Structures/ Precincts.
[c] Reduction of list to 204 from original 300 items from the original proposal has been done in order to protect certain wrong doers whose wrong acts were sought to be prevented by the petitioner by filing Writ Petition No. 2340 of 2001 and the orders passed by this Court were not implemented. One Mr. Thool, who was the Deputy Director of Town Planning, was thereafter appointed as a Chairman of Heritage Conservation Committee. The Committee under his being in harness proposed deletion of 51 structures and precincts.
[d] Ultimately, the List, which was accepted, was of 204 structures or precincts, which was done allegedly in accordance with the guidelines prescribed in Circular issued by the State Government and Union Ministry of Environment and Forests. Said List was liable to be accepted in to, and the Notification, dated 15th October, 2003, gazetted on 18th October, 2003, proposing to delete 66 structures was proclaimed.
[e] This list of deletion of 60 structures was contrary to the material available before the Government and lacked application of mind.
[f] After this Court directed hearing of objections and decision in Writ Petition No. 2340 of 2001 by Order, dated 15th December, 2003, the Government proposed deletion of 49 entries which was again lacking application of mind and defeats the purpose of very objective of regulations.
[g] According to learned Advocate for the petitioner, these mala fides are on facts as well mala fides in law. The property owners have sought to reconstruct and develop the properties for commercial use and make money therefrom.
[h] According to learned Advocate for the petitioner, observation of the remarks of the Department and decision of the Government reveals:
a. total non-application of mind;
b. disagreement with the suggestions or remarks of the enquiring officers or the officers of the Government;
c. whenever the remarks have been accepted, it does reveal application of mind;
d. the Government was undertaking quasi judicial function, however, exercise of quasi judicial duty was not reflected;
e. it was a case of patent non-application of mind and the expert opinion of Heritage Committee was obliterated and disregarded without recording reasons, and f. the deletion of 49 structures has been done in total disregard to the very principles and objects on the basis of which the decision as to preservation of buildings, artefacts, structures, areas and precincts of historic and/or aesthetic and/or cultural significance [heritage buildings and heritage precincts] and/or natural features of environmental significance, for the City of Nagpur, was made.
[i] Preparation of List of Heritage Structures is an Executive function of the State. As can be seen from Rule 3.1, it states that the List annexed to the Regulations shall not form part and parcel of Regulations. Petitioner has relied upon the relevant portion which reads as follows:
The said list of buildings, artefacts, structures and precincts of historical and/or aesthetical, and/or architectural and/or cultural value and/or natural features to which this regulation applies shall not form part of this Regulation for the purpose of Section 37 of the Maharashtra Regional and Town Planning Act,, 1966, This list may be supplemented, altered, deleted or modified from time to time by Government on receipt of proposals from the Commissioner or from the said Heritage Conservation Committee, or by Government suo moto, provided that before the list is supplemented, altered, deleted or modified, objections and suggestions from the public be invited and duly considered by the Commissioner and/or by Government.
[j] It is, thus, the finalization or modification in the List which is a matter of executive function of the Government, and is capable of judicial review. The record produced by the Government does not reveal application of mind and, therefore, it is a fit case for judicial review of executive action and the petition deserves to be allowed by quashing and setting aside the List to the extent of 49 structures which are sought to be excluded.
[k] The petitioner ultimately prays for setting aside the Government decisions, dated 16th December, 2004 and 18th October, 2003, in so far as it relates to deletion of 49 structures and refer the matter for decision of a Panel of Independent Experts from the field of heritage conservation after consideration of all objections and for re-notification, if found necessary.
The learned Advocate for the petitioner has placed reliance on various judgments which can be referred while taking a resume of the legal position.
Reply of Municipal Corporation of Nagpur City:
19. Submissions of learned Advocate Mr. Kaptan for the Municipal Corporation of Nagpur City are summarized as follows:
[a| The Corporation does not treat the present case as that of adversary litigation.
[b] No mala fides can be attributed to or are demonstrated against the Corporation. Corporation has taken all possible actions of obeying the orders of this Court and no blame, whatsoever, can be levelled against the Corporation.
[c] The members of the petitioner-Society were also members of Heritage Conservation Committee, and the petitioner is not entitled to level any blame against the Corporation.
[d] According to Mr. Kaptan, role of Corporation was extremely limited. Heritage Conservation Committee had to do all acts. It had spent considerable time in deliberations and taking decision. Ultimately, Government has applied mind to each of the items sought to be included or deleted in the list of structures and, therefore, on facts or on law, no mala fides were available or attributable to the Municipal Corporation. For this, learned Advocate Mr. Kaptan has placed reliance on reported Judgment in case of Howrah Municipal Corporation and Ors. v. Ganges Rope Co. Ltd. and Ors. . Reliance is based on the dictum in this Judgment on the point that delay in deciding application for permission for development, and amending the rules in the intervening period which restricted the number of floors, was held by Their Lordships of Apex Court to be a matter not liable to be held as tainted with mala fides.
[e] The Corporation is the Planning Authority and its role is limited to the extent of forwarding the proposal of heritage buildings and precincts as prepared by the Heritage Committee to the State Government, enforce the provisions of the Maharashtra Regional &Town Planning Act and strive to preserve the heritage structures etc., when the list attains finality.
[f] The affidavit of Corporation is on record and it is seen that the Corporation does not take any responsibility towards the deletion.
Submissions of owners & occupants of property:
20. Submission of Shri Sunil V. Manohar learned Advocate for respondent No. 28, who is one amongst the property owners whose property is de-listed are as follows:
[a] The function to frame the regulations which is a part and parcel of Development Plan is a legislative function.
[b] The legislative acts cannot be called in question, except on the ground of violation of fundamental rights or ultra vires, i.e., legislative competence.
[c] The grievance that the petitioners were not heard is not available, since the designated Officer heard all those who had objected and wanted to be heard. Moreover, record shows that all objections and suggestions are taken into consideration, not once but twice.
[d] No such situation exists in the present case. Learned Advocate Mr. Manohar placed reliance on various Judgments in support of his arguments in defence of the petitioner which are referred to at appropriate place.
21. The gist of submissions of Advocate Mr. Charde for intervenors is as follows:
[a] The very bona fides and intention of the petitioner are under cloud. The petitioner though titled itself as 'Vidarbha Heritage Society', has not shown any interest, whatsoever, in heritage properties or structures in Vidarbha Region and its focus is only on the high costs lands and properties at Nagpur having a commercial potential and it is coming in the way of development of Nagpur City.
[b] The petition is not a Public Interest Litigation, but is a vested interest litigation.
[c] In an affidavit filed in support of the petition by the petitioner in furtherance to the orders of this Court, no evidence or material has been brought before this Court to demonstrate and suggest as to how 49 structures for which the petitioner is now pursuing for being retained as heritage structures, should be so retained and what is that historical, aesthetic or architectural peculiarity due to which this retention should be done.
[d] The property occupied by these intervenors, on facts, has no value on either counts, i.e., architectural, historical, aesthetic or whatsoever. The Tank is an incomplete structure, and cannot be regarded to have any importance as heritage structure or building or precinct. Its deletion is correctly done by State. The plea of intervenors on this is proved from the information provided by the petitioner itself.
[e] Intervenors are sufferers of developmental activity and their survival is at stake. The real functions of the petitioner are unworthy and the petition deserves to be dismissed.
[f] The State is not competent to clone the provisions of the Maharashtra Act No. XII/1961. the Maharashtra Ancient Monuments & Archaeological Sites & Remains Act, 1960.
[g] The aims and objects of the amending Act No. 39 of 1994 need not be seen in the light of preamble of the Maharashtra Regional & Town Planning Act, 1965 and Rule-making power therein. The aims and objects as seen from the Statement of Objects and Reasons of the Amending Act 39 of 1994 as stated in the Act are quoted below:
Objects and Reasons:
The Maharashtra Regional and Town Planning Act, 1966 aims at making provision for planning the development and use of land in Regions established for the purpose and to make better provisions for the preparation of Development Plans with a view to ensuring that the town planning schemes are made in a proper manner and their execution is made effective. By experience gained in die working of the Act, in the past few years it was felt necessary to carry out certain amendment in the Act to make the provisions of the Act more effective and the implementation of the Act smoother.
[h] The main object and purpose of the Maharashtra Regional & Town Planning Act is to ensure proper planning and development of City. The act of Legislature of defining heritage structures and precincts does not, in any way, amount to vesting or infusing in the State any special power to further legislature on preservation of structures on the lines, or as per the scheme of the provisions of ancient monuments, archaeological sites and remains etc., as is contemplated in the Maharashtra Act No. XII of 1961 or Central enactment on the subject. The very purpose and object, as can be seen from joint reading of Statement of Objects and Reasons of Amending Act No. 39 of 1994 and Statement of Objects and preamble of the Maharashtra Regional & Town Planning Act, 1965, go to suggest that the purpose of defining heritage structure and heritage precincts is to bring them within the compass of competence of the State and the Planning Authority to regulate those which includes preservation as well as demolition and removal etc. Thus, prime object of inclusion of the definition and amendment of definition of 'development' is to equip the Authorities to effectively plan and develop the City. It will be inappropriate to read in isolation the amendment so as to include its objects to be cheerily preservation of heritage buildings arid precincts. Such interpretation is totally unavailable.
[i] The rule-making power available under Section 158 has not been correspondingly amended while enacting Amending Act No. 39 of 1989, and the State Government, therefore, cannot assume, nor can be presumed to have power to legislate by way of delegated legislation in the matters of special powers to preserve the monuments as per the primary object of the Amending Act. Special emphasis is drawn to the portion amended by Amending Act in the definition Clause (7) of Section 2 of the Maharashtra Regional & Town Planning Act, which [amended portion] reads as follows:
(7)...demolition of any existing building structure or erection or part of such building, structure of erection; and ..." and 'to develop' shall be construed accordingly.
[j] The Regulation No. 3.1 says that the list shall not be a part of this regulation. Originally the regulations and list accompanied thereto were to form part of the development plan. This position is clear from the preamble of draft notification. The Government Resolution No. TBS-2491/1835-CR-86-91-UD-9, dated 16th February, 2000, what is stated as to the list appended thereto reads as follows:
The draft Regulations for conservation of historical and architectural buildings along with the list of such buildings/precincts/natural features will form a part and parcel of the Draft Development Control Regulations for Nappur City which are under preparation with Government of Maharashtra.
[Quoted portion is extracted from page No. 20 of the Paper-book of Writ Petition No. 2340 of 2001 and emphasis has been supplied.] However, what is stated in notification, dated 15th October, 2003, directs the regulations now framed and published, through it, shall substitute Regulation No. 34 of Development Control Regulations. The regulations and the list shall become operative with effect from 1st November, 2003 and, therefore, the description that List is not a part of this regulation [i.e., Clause 3.1] has no significance.
Learned Advocate Mr. Charde placed reliance on various Judgments which will be discussed at appropriate stage.
22. Learned Advocates Mr. Anand Parchure, Mr. S.R. Deshpande and other Advocates appearing for other contesting respondents, argued on the same lines of the submission of Advocates Mr. Sunil Manohar and Mr. Charde.
Reply by State Government:
23. The State Government has opposed the petition. Learned Asstt. Govt. Pleader Mr. N.S. Khubalkar advanced following submissions:
[a] The State Government had produced for perusal of the Court the record which was in the form of a comparative table. The recommendations of Heritage Conservation Committee, report of the designated officer after hearing the comments of the Director of Town Planning and of the Department all were before the Government and upon consideration of entire relevant material available before the Government, the decision has been reached by the Government. Each item therein was ruled upon by the Government. Application of mind is absolutely vivid, and no blame, whatsoever, such as factual or legal mala fides, was attributable to the State.
[b] The action of the State in finalizing the Regulations pertaining to Development Plan is a legislative action. No mala fides, either legal or factual, are available and attributable against the State.
[c] Action of the State was not in the nature of quasi judicial or Executive enquiry, and in either of the eventualities, the scope of judicial review is extremely limited.
[d] The decision-making process of the Government was most transparent. The hearing at the stage of Deputy Director of Town Planning was done publicly.
[e] The Director of Town Planning, thereafter, gave his expert opinion and comments. The office notes and representations were also put up and thereafter the Government took decision of de-listing structures/precincts.
[f] This decision of the Government has followed inviting objections from the public at large, hearing, opinions, consultations etc. Upon the directions of this Court, the matter was reexamined. The decision, which is reached by the Government is transparent.
[g] The Government has reserved to itself the power to add or alter the List of Heritage Structures, though as per the draft Development Control Regulations, the power was initially proposed to vest with the Municipal Commissioner.
[h] Considering the totality of circumstances, it will reveal that there is due and proper application of mind. The decision-making process has passed through all procedural rigours. Considerable time was spent and there was no haste, whatsoever, done by, or at the level of Government in the decision-making process. Petitioner's grievance of non-application of mind, as can be seen, is untenable.
[i] The Petitioner is disputing the propriety of the decision and correctness thereof, and no challenge, whatsoever, is raised as to the process of decision-making.
[j] The grievance of the petitioner that its views are not accepted by the State cannot be a ground for judicial review.
Ultimately, the act of the State Government in framing the Development Control Regulations is a legislative function, and the new Development Control Regulations substitute Regulation 34 as was in existence.
[k] Though it is stated in Rule 3.1 that the List shall not form part and parcel of these Regulations, is only in order to protect the power of the State to modify it, while it is a matter of fact that upon substitution of Regulation 34, the Heritage List is a part and parcel of said Regulation 34 of Development Control Regulations.
[l] The decision of the State cannot be faulted on any ground, whatsoever.
[m] There is no error or illegality in the process of decision making of whatever type. The State, therefore, prayed for dismissal of the Writ Petition.
24. Before analysing the submissions, it would be necessary to refer to the large number of citations relied upon by respective parties.
25. The case laws relied upon by learned Advocate Mr. A.C. Dharmadhikari are grouped and dealt with as follows:
[I] CASE LAWS ON THE POINT OF LOCUS STANDI AND PUBLIC INTEREST LITIGATION:
[i] Bombay Environmental Action Group and Anr. v. State of Maharashtra and Ors. , and [ii] Vijay Krishna Kumbhar v. The State of Maharashtra and Ors. 2000 (2) Bom. C.R. 293.
These judgments are relied upon to demonstrate that the petitioner has locus standi, These citations need not be discussed in detail, for the reason that though the locus standi of the petitioner is challenged, Writ Petition No. 211 of 2005 is the fifth petition in sequence. Concern of the petitioner, as seen was originally for directions to the State to have regulations finalized. This was for enforcement of statutory provisions, and failure to enforce them in so far as Nagpur is concerned, was liable to be looked into by the Court, whosoever was the petitioner. The petitioner, who sought to have the Heritage List finalized, cannot be dismembered from locus standi on account of allegations of mala fides averred by the respondents against it. Court will always decide on facts and law, as involved, as to whether interference is called for.
However, petitioner cannot be branded to be a litigant without locus standi.
The latter Judgment is also relied upon to show that in Public Interest Litigation, the petitioner having extremely limited access to the information, the conclusions as to malafides can be drawn on circumstantial evidence.
(II) VIOLATIONS OF PROVISIONS OF THE MAHARASHTRA REGIONAL & TOWN PLANNING ACT. DIRECTION TO PRESERVE THE ECOLOGICAL AND ENVIRONMENTAL BALANCE AND NEED TO APPOINT A MONITORING COMMITTEE:
[i] Bombay Environmental Action Group and Anr. v. State of Maharashtra and Ors. , and [ii] Hinch Lal Tiwari v. Kamala Devi and Ors. .
In the present case, the challenge is very limited, as the petitioner is calling in question the Government decision of not including 49 structures as Heritage Structures/Heritage Precincts. The act of the State is not complained to be bad on account of violation of provisions of the Maharashtra Regional & Town Planning Act, or pollution-related laws, or preservation of ecology etc. Petitioner has not prayed for appointment of any Monitoring Committee. These judgments are, therefore, besides the issue involved in the petition.
(III) MALA FIDES:
Shri Sachidanand Pandey and Anr. v. The State of West Bengal and Ors. .
Learned Advocate Mr. Dharmadhikari had stated that no imputations of factual nature attributing individual mala fides to any of the officers of the State are made.
Learned Advocate Mr. Dharmadhikari had more than once asserted while submitting that the original List of 300 structures was reduced to 204 only after Mr. Thool was appointed as Chairman of Heritage Conservation Committee, there is no challenge before this Court to the original list of 204 structures, stating that the originally recommended 300 structures/precincts should be included in the Heritage List, however, reduction of items from 300 to 204 is not challenged.
Therefore, the point of mala fides is only as to failure to comply with mandatory provisions of law while issuing deletion lists for 66 and 49 structures respectively. This challenge is also without any attribution as a particular person and particular intentions.
Whether in a given case, decision of the State is influenced by bad faith and hence a mala fide decision, will have to be decided on the facts of the case. This Judgment has, therefore, no bearing on the issue in question.
(IV) AS TO PRESERVATION OF ANCIENT MONUMENTS:
[i] Joseph Pothen v. State of Kerala , and [ii] Rajeev Mankotia v. Secretary to the President of India and Ors. .
These Judgments are the cases directly on the provisions of laws relating to preservation of ancient monuments under the Act No. 24 of 1958 [Central Enactment], Travancore Ancient Monuments Preservation Regulation and Ancient Monuments Preservation Act No. 7 of 1904 as well said Act No. 24 of 1958. The monuments in both these cases were already governed by the existing enactments passed by competent Legislature. There is no similiar or similarity, whatsoever, involved in present case. The cases on hand in reported Judgments proceeded on the basis, namely, status of monuments to be ancient was not disputed.
These judgments do not serve any assistance, whatsoever, for the petitioner's case.
(V) TO WHAT EXTENT. AID AND ASSISTANCE CAN BE SOUGHT FROM THE STATEMENT OF OBJECTS & REASONS:
[i] Aswini Kumar Ghose and Anr. v. Arbinda Bose and Anr. , [ii] State of West Bengali Union of India , and [iii] Shashikant Laxman Kale and Anr. v. Union of India and Anr. .
It is a settled principle as to interpretation of law that when provision of any enactment consists of language employed therein to be clear and eloquent enough and does not admit multiple interpretations, any external assistance for its interpretation by way of reference to the contents of Statement of Objects and Reasons is not called for, for any aid and assistance therein. However, while referring to the circumstances which have led to enactment of any particular statute, such circumstances can always be looked into. The ratio, as exists, has been summarized and reiterated in Paragraphs 16 and 17 of the latest judgment in the case of Shashikant Kale [mentioned at Sr. No. 3 above]. Para 17 is quoted below for ready reference:
17. Not only this, to sustain the presumption of constitutionality, consideration may be had even to matters of common knowledge; the history of the times; and every conceivable state of facts existing at the time of legislation which can be assumed. Even though for the purpose of construing the meaning of the enacted provision, it is not permissible to use these aids, yet it is permissible to look into the historical facts and surrounding circumstances for ascertaining the evil sought to be remedied. The distinction between the purpose or object of the legislation and the legislative intention, indicated earlier, is significant in this exercise to emphasize the availability of larger material to the Court for reliance when determining the purpose or object of the legislation as distinguished from the meaning of the enacted provision.
Though definition Clauses (13A), (13B) and (13C) are newly added, no other provisions are incorporated in the Maharashtra Regional & Town Planning Act. Simultaneously, Section 2(7) has been amended. Section 158, which lays down the scheme of rule-making power, has not been amended. In view of this position of fluidity created by amending Act, this Court is of the view that the Court is bound to look into joint reading of preamble of original and amending Act 39 of 1989, provisions, subject-matter as well Statement of Objects and Reasons This reading would assist in arriving at proper and correct interpretation of the provisions of the Maharashtra Regional & Town Planning Act, Rules and Development Control Regulations, as those stand after amendments carried out from time to time.
26. Judgments relied upon by Advocate Mr. Sunil Manohar and discussion thereon is as follows:
(A) LIMITATIONS ON EXERCISE OF JUDICIAL REVIEW FOR SCRUTINY OF BONA FIDES:
[i] Short v. Poole Corporation 1925 All. E.R. 74 The judicial review in Executive action is not permissible unless the party challenging shows that the exercise of power was ultra vires, exercised corruptly, mala fide, or for purpose for which the power was vested.
(B) LIMITATIONS ON JUDICIAL REVIEW:
[i] Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation 1947 All. E.L.R. 498. In appeal against this decision:
[ii] Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 All. E.R. 680,and [iii] Union of India v. Cynamide India Ltd. .
When the matters concerning well being of society are considered while imposing conditions by the Executive for enforcement of certain regulations for which power has been vested in the Executive, before exercising the power by Court to interfere in such cases, the Court should satisfy itself that the authority has come to a conclusion which is so unreasonable that no reasonable authority could have arrived at such conclusion, then only Court can interfere in exercise of power of judicial review which is extremely limited in policy matters.
(C) JUDICIAL REVIEW IN FINANCIAL MATTERS HAS ITS OWN LIMITATIONS:
[i] Balco Employees' Union [Regd.] v. Union of India and Ors. , and [II] Tata Celluar v. Union of India 1994 (6) S.C.C. 651 In the process of judicial review, what is to be scrutinized is the legality of the process of decision-making. The Government does not sit as an Appellate Court on the Government's decision in exercise of power of judicial review. When the decision is vitiated by arbitrariness, unfairness, illegality, irrationality or Wednesbury rule of unreasonableness or irrationality', then only interference to set right the decision-making process is called for.
(D) FRAMING OR AMENDMENT IN DEVELOPMENT CONTROL REGULATIONS IS A LEGISLATIVE FUNCTION.
Pune Municipal Corporation v. Promoters & Builders Association .
The dictum Apex Court in this case is that framing of Development Plan of which Development Control Regulations form part is a legislative function. There are inbuilt limitations on judicial review whenever such legislative action is being tested. If Rules do not provide for hearing, non-observance of principles of natural justice is not a ground which can be available as a basis of challenge. To summarize, at the most, rule of Wednesbury case alone would govern the challenge. Thus, it will have to be tested on facts whether on what is pleaded by the petitioner and sought to be brought on record, then only it will have to be decided if interference is called for.
(C.) DOCTINE OF ULTRA VIRES:
Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth etc. .
What the Lordships of Apex Court held in above case is eloquent enough and can be referred better by quotation:
16....But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purpose of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
(F) BURDEN TO PROVE MALA FIDES:
[i] Narayan Govind Gavate and Ors. v. State of Maharashtra and Ors. and State of Maharashtra and Ors. v. Narayan Govind Gavate and Ors. , and [ii] Delhi Development Authority and Anr. v. UEE Electricals Engg. (P) Ltd. .
These judgments need not be discussed in detail in view that the learned Advocate for the petitioner has already stated that mala fides of factual nature are not asserted, as entire challenge is based on legal submissions.
(G) TEST OF EXAMINING THE VALIDITY AND CONSTITUTIONALITY OF VALIDATING ENACTMENT:
Indian Aluminium Co. and Anr. v. State of Kerala and Ors. .
This judgment has no relevance to the present case, and need not be discussed in detail.
The amendment to Development Control Rules under Section 37 of the Maharashtra Regional & Town Planning Act involves legislative function, and it being a delegated legislative power, unless exercise of such power is shown to be arbitrary, unreasonable or done in erroneous manner, it is not open for Court's interference.
27. Learned Advocate Mr. Charde has placed reliance on various Judgments, amongst which many are already relied upon by Advocate Mr. Sunil Manohar which are discussed. They are (1) Tata Cellular v. Union of India 1994 (6) S.C.C. 651, and (2) Pune Municipal Corporation and Anr. v. Promoters and Builders Association and Anr. . Apart from this, learned Advocate Mr. Charde placed reliance on following Judgments on various points, which are dealt with as follows:
A. [i] Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Ors. , and [ii] State of U.P. And Ors. v. Maharaja Dharmander Prasad Singh and Ors. and Lucknow Development Authority and Ors. v. Matiarani Rajlaxmi Kumari Devi and Ors. .
These Judgments are relied upon to urge that the process of development and town planning are ongoing processes. They are bound to change from time to time, depending on the local needs and, therefore, power to effect orderly development is vested in the Local Authorities and the State. This power also includes power to revoke plans once sanctioned.
In specific, the case of State of U.P. v. Maharaja Dharmander Prasad Singh is relied upon to contend that the power of judicial review cannot be converted into an appeal, and the judicial review is to be restricted to the process of decision-making.
B. Icyril Thomas Macwan v. The Municipal Corporation of Gr. Mumbai and 5 Ors. unre-ported Coram : R.M. Lodha and Anoop V. Mohta, JJ. in Writ Petition No. 2214 of 2005, decided on 22nd February, 2006.
This Judgment is relied upon to indicate that the decision taken by the Town Planning Authority relating to the construction which was likely to affect the heritage structure was not interfered. This reference self-suffices and no further discussion is necessary.
C.[i] Indian City Properties Ltd. And Anr. v. Municipal Commissioner of Greater Bombay and Anr. .
[ii] P. Kasilingam and Ors. v. P.S.G. College of Technology and Ors. 1995 (Supp. 2) S.C.C. 348, and [iii] Puran Singh and Ors. v. State of Punjab and Ors. .
These Judgments are cited in order to demonstrate the manner in which the interpretation of the statutes involved should be done.
In view of the nature of controversy which is already discussed, it would be of no gain to discuss these precedents, and no question as to interpretation of provisions is involved, except as discussed that coherent reading of the scheme of the Maharashtra Regional & Town Planning Act, Rules and Regulations will have to be done.
D. [i] Sachidanand Pandey and Anr. v. State of West Bengal and Ors. , and [ii] Janta Dal v. H.S. Chowdhary and Ors. 1992 (4) S.C.C. 304.
The above two precedents are pressed into service to demonstrate [a] in what manner, the Public Interest in Public Interest Litigation be identified, and [b] to state that whenever the decision impugned is taken openly after a long process of discussion, negotiations, consideration of objections etc., the please of absence of hearing to the persons affected is not tenable.
28. After considering the material born on record and rival submissions, what this Court considers that in order to test conveniently the submissions, points for determination need to be formulated. The points which accordingly fall for consideration of this Court are formulated as follows:
[a] Whether framing and modification of Development Control Regulations is a legislative function?, [b] Does Regulation No. 3.1, as finally approved, state that the List appended to these Regulations shall not form part and parcel of this Regulation and does the task of preparing the List of Heritage Structures continue to be a legislative function, or is rendered Executive function?
[c] Is the petitioner successful in demonstrating that the act of the State in finalising the List of 49 structures for deletion from the original list of 204 structures is vitiated due to any factors which render the delegated legislation void or ultra vires to the extent and compass of delegated legislation, or on account of any other reason?
[d] What shall be the final order?
29. [a] Whether framing and modification of Development Control Regulations is a legislative function?
It is seen from what is shown by the petitioner that the very root cause of the petition is the failure of the Government to frame proper regulations for protection of heritage properties. As is seen from the perusal of draft Regulations that the effort of the State Government is to provide a channel or a pathway to be followed by the Municipal Corporations and all the Planning Authorities concerned to permit delegation of transfer of development rights whenever permission for development is refused in relation to the property which is declared as 'heritage structure or precinct'. The Regulations empower the State Government to decide as to which property shall form part of the List of Heritage Structures. The set of rules relating to heritage is nothing but one regulation, i.e., Regulation No. 34 of Development Control Regulations for Nagpur City. It is only on the basis of the controlling power which became available to the Planning Authority and the State by virtue of the definition amended by amending Act No. 39 of 1994, thereby amending Clause (7) of Section 2, and by adding Clauses (13A), (13B) and (13C) of Section 2 of the Maharashtra Regional & Town Planning Act. The petitioner found that it has the right to approach this Court under Article 226 and seek enforcement of the duty of the Corporation and the State in relation to the heritage structures only due to said amending Act.
30. Thus, on showing by the petitioner the function of the State in approving Development Control Regulations is a function in exercise of powers available under the provisions of the Maharashtra Regional & Town Planning Act of sanctioning and modifying the Development Plan of the City. The function of sanctioning and modifying etc., the Development Plan is construed by the Apex Court in the case of Pune Municipal Corporation v. Promoters and Builders Association, reported in 2003 (10) S.C.C. to be a legislative function.
31. [b] Does Regulation No. 3.1, as finally approved, state that the List appended to these Regulations shall not form part and parcel of this Regulation and does the task of preparing the List of Heritage Structures continue to be a legislative function, or is rendered Executive function?
As is seen from the scheme of Regulation 34, as it now stands, the power to alter the list is vested with the State upon a proposal/recommendation thereof by the Corporation, however, the initial act of State in framing the Regulations is for all purposes a legislative function. The power of making rules and regulations and even altering the list of heritage structures has remained unaltered and, therefore, the language of Regulation 3.1 does not, in any manner, change the nature and character of Regulation No. 39 and, therefore, framing and alteration thereof continues to be a legislative function.
32. [c] Is the petitioner successful in demonstrating that the act of the State in finalising the List of 49 structures for deletion from the original list of 204 structures is vitiated due to any factors which render the delegated legislation void or ultra vires to the extent and compass of delegated legislation, or on account of any other reason?
[a] In order to record the finding on this question, it is necessary to refer to and rely upon the averments contained in the petition. As the petitioner has averred and as is spelt out from record of Writ Petition No. 2340 of 2001, it is seen that after amending Act No. 39 of 1994, State Government remained passive. Thereafter, due to various petitions filed by the petitioner, the Government ultimately issued the Government Resolution, dated 16th February, 2000, thereby publishing the Draft Regulations and publishing the List. The Government took time in deciding the List of Structures to be retained, deleted etc., and finalizing the Development Control Regulations to take place of Regulation No. 34. It is not the case of petitioner that the objections were not permitted to be raised. On the other hand, some of the constituents of the petitioner were members of the Heritage Conservation Committee. Petitioner has submitted representations and tried to justify retention of various structures.
[b] It is clear that the Government declared the list of 66 structures for de-listing from the original list. Under the orders of this Court, the said list was re-considered, and the Government ultimately decided to delete 49 structures. This was done after the matter was reheard by the Designated Officer, comments were received from the Deputy Director of Town Planning and further comments were submitted by the Department.
[c] It is seen from record that Government has examined item included in the List and has thereafter reached the decision of not retaining 49 structures.
[d] The petitioner has not been able to show as to whether any particular procedure was mandatory and liable to be followed by the State Government while finalizing the list of deletion.
[e] The petitioner has also not been able to demonstrate as to in absence of any settled procedure, what is that serious lapse on the part of the State which has resulted in vitiating the procedure of reaching at the conclusion by the State Government. It is well settled position of law that in the judicial review including of the delegated legislation, what is required to be tested is 'the process of decision-making', and not the decision itself.
[f] The testing of the decision has to be done in exceptional cases where the petitioner is able to demonstrate that the decision is vitiated due to Wednesbury rule that not because decision is debatable, or some other decision could have been taken more prudently, but because the decision arrived by the State could at all be arrived at by any rational person. Thus, total irrationality is the criteria. From whatever is debated by the petitioner, it is seen that whatever the petitioner is urging is a conflict of opinions.
[g] It is extremely difficult to have unanimity on the point as to whether a particular should be retained as heritage structure, more particularly when it is not a case of preservation of ancient monuments and need of preservation is based on objectivity on the test, as would be governed by the definition of ancient monuments, remains or sites etc., either by Act No. 24 of 1954, Central enactment or the State enactment on this subject.
[h] It has also to be noted that while on one hand heritage structures and precincts have been defined, the amendment, which is simultaneously effected to the definition of the term 'development' in Clause (7) of Section 2, reveals that prime object is not of enacting a new set of rules having force of law to preserve the structures having character as a monument first, but to also make an attempt, to preserve the heritage structures or remove them or develop the property under it, while 'properly developing' the town and while preparing and implementing the Development Plan of the town.
[i] It has also to be noted that Section 156 of the Maharashtra Regional & Town Planning Act, 1965, which provides for rule-making power and equips the State with power to make the rules, does not vest in the State powers to frame regulations to assume powers or vest powers in the Corporation to preserve the heritage structures. The aims and objects of the preamble of the Maharashtra Regional & Town Planning Act as well Amending Act No. 39 of 1995 do not suggest or render available any semblance to scheme of preservation of monuments or heritage structures. The very plan seems to be to make effort to preserve, if necessary, develop, remove etc. heritage structures as an object ancillary to the main function of town planning and orderly development of the city.
Conclusion on Point 'C':
Having considered the spectrum as discussed above, this Court is of the view that the object of preservation of heritage structures is not primary, but is colateral or ancillary to the development and this aspect has to be borne in mind while testing as to which of the structures need to be continue in the list of heritage structures. What is seen important is the development and thereafter 'also an effort to preserve the heritage structures' while ensuing orderly development of the city. Thus, the decision of the State in deleting 49 structures is not shown by the petitioner to be so shocking and untenable and irrational to call for interference.
33. In view of what is clear from what is discussed herein before, present petition does not call for interference, and is liable to be dismissed, and is dismissed.
34. In so far as the aspect of costs is concerned, the respondents have prayed for ex-emplary costs. In summary enquiry, it. is not possible for the Court to hold that the present petition was vexatious, more particularly when this petition is fifth in sequence and in neither of the cases, it was possible for the Court to doubt the bona fides on the part of the petitioner. The grievance of the interveners and other respondents that the petitioner's status as a real heritage conservationist is in doubt because the petitioner has failed to expand its activities beyond Nagpur city has gone undenied, nevertheless the steps of the petitioner have borne fruits, namely the State ultimately finalized the Regulations, cannot be ignored. The petitioner's effort and claims relating to 49 structures may be misplace, however, this Court does not consider that the petitioner's effort to fight for all 49 structures is, on the face of it, mala fide. The Court may not be justified in assuming lack of bona fides on the part of the petitioner, nor it is possible to conclude in the summary enquiry that the petition is mala fide. The circumstances brought above in support of this plea present by the respondents that the petition is mala fide, cannot be construed to be strong enough requiring acceptance without enquiry. This Court is, therefore, of the view that the present is not a case where though the petitioner has failed that the petitioner should be saddled with costs, much less exemplary cost. Existence of right of judicial review follows scrutiny and issue of Writ or declinement, and it would be unjust to hold that every declinement would follow the cost.