Bombay High Court
Syed Sarwat Begum Arif Hussaini vs The State Of Maharashtra Through Its ... on 8 April, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:10438-DB
WP No. 7515 of 2024 & Ors
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7515 OF 2024
Shri. Govind Bajirao Navpute
Age : 70 years, Occu: Agriculture.
R/o: Gut No. 389, Chikalthana, Aurangabad,
Tq. & Dist. Aurangabad. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department - 1,
Mantralaya, Mumbai - 32.
2. The Director Town Planning,
Maharashtra State,
Central Building,
Pune.
3. The Joint Director Town Planning,
Aurangabad.
4. The Deputy Director Town Planning,
Development Plan, Aurangabad,
Through its Officer,
Mohd. Raza Khan Mohd. Abdul Sattar Khan,
Age : Major, Occup.: Deputy Director of Town
Planning Department (Special Unit)
R/o.: PWD quarter No. 43, Opp. Gurudwara,
Osmanpura, Aurangabad - 431 005,
Tq. & Dist. Aurangabad.
5. Aurangabad Municipal Corporation,
Aurangabad,
Through its Municipal Commissioner
6. The Deputy Director Town Planning,
Draft Development Plan,
Aurangabad,
Through its Appointment Officer,
Shrikant S/o Marutirao Deshmukh,
Age : 56 years,
Occu: Deputy Director of Town Planning,
R/o: Aurangabad Corporation. ..RESPONDENTS
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WP No. 7515 of 2024 & Ors
...
• Shri. V. D. Sapkal, Senior Advocate i/by Shri. Saurabh Avhad and
Shri. S. R. Sapkal, advocate for the petitioner.
• Shri. S. B. Deshpande, Senior Advocate (Special Counsel) a/w. Shri
Chetan Choudhari, Advocate i/by Shri. A. B. Girase, G.P. and Ms. S.
S. Joshi, AGP for respondent Nos. 1 to 3 & 6.
• Shri. V. D. Salunke, advocate for respondent No. 4.
• Shri. S. S. Tope, advocate for respondent No. 5.
...
WITH
WRIT PETITION NO. 12190 OF 2023
Shri. Vinod S/o Gangabishan Agrawal,
Age : 57 years, Occu: Contractor,
R/o: C-1, Pride Park, Vedant Nagar,
Aurangabad,
Tq. & Dist. Aurangabad. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department - 1,
Mantralaya, Mumbai - 32.
2. The Director Town Planning,
Maharashtra State,
Central Building,
Pune.
3. The Joint Director Town Planning,
Aurangabad.
4. The Deputy Director Town Planning,
Development Plan Special Unit,
Aurangabad,
Municipal Corporation, Aurangabad.
5. Aurangabad Municipal Corporation,
Aurangabad,
Through its Municipal Commissioner.
6. Shrikant S/o Marutirao Deshmukh,
Age : 55 years, Occu: Deputy Director of Town
Planning,
R/o: Aurangabad Corporation ..RESPONDENTS
2/35
WP No. 7515 of 2024 & Ors
...
• Shri. V. D. Sapkal, Senior Advocate i/by Shri. Saurabh Avhad and
Shri. S. R. Sapkal, advocate for the petitioner.
• Shri. S. B. Deshpande, Senior Advocate (Special Counsel) a/w. Shri
Chetan Choudhari, Advocate i/by Shri. A. B. Girase, G.P. and Ms. S.
S. Joshi, AGP for respondent Nos. 1 to 3.
• Shri. V. D. Salunke, advocate for respondent No. 4.
• Shri. S. S. Tope, advocate for respondent No. 5.
...
WITH
WRIT PETITION NO. 15392 OF 2023
Syed Sarwat Begum W/o Arif Hussaini,
Age: 51 years, Occu : Household,
R/o: H. No. 8-5-107, Shah Bazar,
Aurangabad,
Tq. & Dist. Aurangabad. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department - 1,
Mantralaya, Mumbai - 32.
2. The Director Town Planning,
Maharashtra State,
Central Building,
Pune.
3. The Joint Director Town Planning,
Aurangabad.
4. The Deputy Director Town Planning,
Development Plan, Aurangabad,
Through its Officer,
Mohd. Raza Khan Mohd. Abdul Sattar Khan,
Age : Major, Occup.: Deputy Director of Town
Planning Department (Special Unit)
R/o.: PWD quarter No. 43, Opp. Gurudwara,
Osmanpura, Aurangabad - 431 005,
Tq. & Dist. Aurangabad.
5. Aurangabad Municipal Corporation,
Aurangabad,
Through its Municipal Commissioner.
3/35
WP No. 7515 of 2024 & Ors
6. The Deputy Director Town Planning,
Development Plan Special Unit,
Aurangabad,
Through its Officer,
Shrikant S/o Marutirao Deshmukh,
Age : 55 years,
Occu: Deputy Director of Town Planning,
R/o: Aurangabad Corporation ..RESPONDENTS
...
• Shri. V. D. Sapkal, Senior Advocate i/by Shri. Saurabh Avhad and
Shri. S. R. Sapkal, advocate for the petitioner.
• Shri. S. B. Deshpande, Senior Advocate (Special Counsel) a/w. Shri
Chetan Choudhari, Advocate i/by Shri. A. B. Girase, G.P. and Ms. S.
S. Joshi, AGP for respondent Nos. 1 to 3 & 6.
• Shri. Akash E. Madne, advocate for respondent No. 4.
• Shri. S. S. Tope, advocate for respondent No. 5.
...
WITH
WRIT PETITION NO. 15422 OF 2023
Smt. Hazirabee W/o Ahmed Khan,
Age : 69 years, Occu: Household & Agri.
R/o: Satara Parisar, Aurangabad,
Tq. & Dist. Aurangabad. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Urban Development Department - 1,
Mantralaya, Mumbai - 32.
2. The Director Town Planning,
Maharashtra State,
Central Building,
Pune.
3. The Joint Director Town Planning,
Aurangabad.
4. The Deputy Director Town Planning,
Development Plan, Aurangabad,
Through its Officer,
4/35
WP No. 7515 of 2024 & Ors
Mohd. Raza Khan Mohd. Abdul Sattar Khan,
Age : Major, Occup.: Deputy Director of Town
Planning Department (Special Unit)
R/o.: PWD quarter No. 43, Opp. Gurudwara,
Osmanpura, Aurangabad - 431 005,
Tq. & Dist. Aurangabad.
5. Aurangabad Municipal Corporation,
Aurangabad,
Through its Municipal Commissioner.
6. The Deputy Director Town Planning,
Development Plan Special Unit,
Aurangabad,
Through its Officer,
Shrikant S/o Marutirao Deshmukh,
Age : 55 years,
Occu: Deputy Director of Town Planning,
R/o: Aurangabad Corporation ..RESPONDENTS
...
• Shri. R. D. Dhorde, Senior Advocate a/w. Shri P. S. Dighe, advocate
i/by Shri. Shashikant T. Cahlikwar, advocate for the petitioner.
• Shri. S. B. Deshpande, Senior Advocate (Special Counsel) a/w. Shri
Chetan Choudhari, Advocate i/by Shri. A. B. Girase, G.P. and Ms. S.
S. Joshi, AGP for respondent Nos. 1 to 3 & 6.
• Shri. S. S. Tope, advocate for respondent No. 5.
...
WITH
PUBLIC INTEREST LITIGATION NO. 4 OF 2024
Sarda Narayan Purushottam
Age : 46 years, Occu : Business,
Presently Residing at Flat No. 04,
Astik Apartment, Nageshwarwadi,
Near Khanale Hospital, Aurangabad - 431001. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Chief Secretary,
Mantralaya, Mumbai - 400032.
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WP No. 7515 of 2024 & Ors
2. The Principal Secretary - 1,
Urban Development Department,
Mantralaya, Mumbai 400098.
3. Urban Development Department,
through Joint Secretary,
Mantralaya, Mumbai
4. Town Planning and Valuation Department,
through Director,
Central Office, Old Building,
Pune - 411001.
5. Town Planning and Valuation Department
through Joint Director,
Aurangabad Division,
Mondha Naka, Aurangabad.
6. Shri. Shrikant Deshmukh,
Deputy Director, Town Planning, and
Appointed Officer, Draft Development Plan,
Chh. Sambhajinagar Municipal Corporation,
Off. : Aurangabad Smart City Office,
V.I.P Road, Near Aamkhas Maidan,
Chhatrapati Sambhajinagar.
7. Shri. Mohd Raza Khan,
Deputy Director, Town Planning,
Development Plan, Special Unit,
Off. : Municipal Corporation, Town Hall,
Aurangabad - 431001.
8. Aurangabad Municipal Corporation
through Administrator,
Off. : A.M.C., Town Hall,
Aurangabad - 431001. ..RESPONDENTS
...
• Shri. Ajeet B. Kale, Advocate i/by Shri. Mohd. Aseem Mohd. Abdul
Kaleem, advocate for the petitioner.
• Shri. S. B. Deshpande, Senior Advocate (Special Counsel) a/w. Shri
Chetan Choudhari, Advocate i/by Shri. A. B. Girase, G.P. and Ms. S.
S. Joshi, AGP for respondent Nos. 1 to 5.
• Shri V. D. Salunke, advocate for respondent No. 7.
• Shri. Anand Bhandari, advocate for respondent No. 8.
...
6/35
WP No. 7515 of 2024 & Ors
CORAM : MANGESH S. PATIL &
PRAFULLA S. KHUBALKAR, JJ.
RESERVED ON : 08.01.2025
PRONOUNCED ON : 08.04.2025
JUDGMENT (MANGESH S. PATIL, J.) :
. Heard. Rule in all the petitions. It is made returnable forthwith.
2. The learned Government Pleader and the learned advocates for the respective respondents waive service.
3. Common issues arise in all these petitions, including the public interest litigation and all the matters have been heard together. In order to avoid rigmarole, we are disposing of all these petitions and the PIL by this common judgment and order.
4. In order to avoid confusion, we are taking up writ petition No. 7515 of 2024 as a lead petition.
5. The issue which has cropped and needs to be answered in all these petitions can be culled down as under:-
Whether the State Government, resorting to Section 162 of the Maharashtra Regional and Town Planning Act, 1966, can replace an officer appointed under Section 21(4A) in light of judgment of the High Court in writ petition No. 1981 of 2016 with connected writ petitions, when under Section 21(4A), the authority to appoint such officer is with the Joint Director of Town Planning ?7/35
WP No. 7515 of 2024 & Ors
6. The issue arises from the following set of events :-
(A) Respondent - the Municipal Corporation, Chhatrapati.
Sambhajinagar (hereinafter referred to as the ' Planning Authority') under the Maharashtra Regional Town Planning Act, 1966 (for brevity, the 'MRTP Act') declared its intention to prepare a draft development plan of its extended limits under Section 23(1) on 26.05.2010. The draft was published on 03.02.2016..
(B) Mr. Govind Bajirao Navpute, the petitioner, filed writ petition No. 1981 of 2016. The High Court quashed and set aside the notification dated 04.02.2016 on the grounds that several changes were made in the report submitted by the officer and holding that the planning authority had failed to perform its duties for the purpose of preparation of development plan and in the circumstances holding that the situation had arisen under the provision of Section 21(4A).
(C) The planning authority challenged the decision of the High Court before the Supreme Court. A statement was made before the Supreme Court by the planning authority that in exercise of powers under Section 154, the State Government had issued directions for preparing a combined development 8/35 WP No. 7515 of 2024 & Ors plan for the original area by way of revision and for the extended area. In paragraph No. 13 in Civil Appeal No. 2237 of 2020, the Supreme Court observed as under:-
13. In this case, it is to be noted that proceedings were initiated in the year 2013 for revising the draft development plan and for one reason or the other, the proceedings remained at the stage of preparation of draft development plan. In view of the directions of the High Court, the said plan is yet to be prepared and is to be submitted to the Government for sanction. In any event having regard to communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits is to be prepared for Aurangabad city.
7. The Petitioner - Govind Bajirao Navpute preferred Contempt Petition No. 582 of 2022 alleging that there was willful disobedience by the planning authority of the mandate of the High Court in writ petition No. 1981 of 2016. Following order was passed while disposing of the contempt petition on 03.08.2023:
....
2. ....
3. ....
4. ....
5. ....
6. ....
7. In our view, the State Government directing the Aurangabad Municipal Corporation to prepare development plan for both the area, original and extended one, is in breach of the order passed in the Writ Petition.
8. During hearing of this Contempt Petition, a proposal came up to the effect that, if the State Government appoints an officer under Section 21(4A) and/or Section 162 of the MRTP Act within three weeks from today, the Development Plan, Special 9/35 WP No. 7515 of 2024 & Ors Unit appointed can submit its work carried out under Section 25 of the MRTP Act, 1966 to the said officer appointed. The said, officer can thereafter publish the draft development plan under Section 26, inviting suggestions and objections and carry out further process up to its submission to the State Government under Section 30 of the MRTP Act. This will also save the work already done by the Special unit and implement the directions issued by this Court. The learned Senior Counsel, on instructions, submitted the State Government to have been in agreement with the said proposal. The Planning Unit shall submit its work done to the Officer appointed by the State Government, within three months.
9. In view of the above, we take it that the State Government has made a statement accepting the said proposal and undertakes to comply with the same. The contempt stands purged and the petition stands disposed of.
8. In the Special Leave Petition, the original petitioner - Govind Bajirao Navpute also prayed for a consequential relief in the form of objection to the order passed under Section 21(4A) dated 31.08.2023 appointing a special authority and further objecting to the order dated 07.11.2023 passed by the State Government in purported exercise of the powers under Section 162(1) appointing an officer for undertaking an exercise of preparation of combined draft development plan for the original area and extended area.
9. It is to be noted that pursuant to the order passed by the High Court in the contempt proceedings dated 03.08.2023, by invoking the provisions of Section 21(4A), the State Government appointed respondent No. 6 as an officer to perform duties under Sections 26 to Section 30. The allegations are that though there was no reference to the powers of the 10/35 WP No. 7515 of 2024 & Ors State Government under Section 162(1) in the order dated 03.08.2023 passed in the contempt proceedings and it was not even referred to in the order dated 31.08.2023 appointing respondent No. 6, and perhaps realizing the mistake/illegality the impugned order dated 07.11.2023 was issued by the State Government invoking that provision thereby confirming appointment of respondent No. 6 who was then the Deputy Director of Town Planning, Greater Mumbai, as an officer to complete the proceedings for composing the draft development plan by revising plan of the original limit plus preparing draft development plan of extended limits and it was ordered that the draft development special unit of the Chh. Sambhajinagar shall handover the entire proceedings, documents, maps, material of the computerized proceedings to respondent No. 6.
10. In the meanwhile, the development plan special unit submitted a report on 28.08.2023 indicating that a survey was carried out and submitted its report to the planning authority regarding existing land use (ELU) and informing that draft of proposed land use (PLU) was also completed.
11. Pursuant to the impugned orders dated 31.08.2023 and 07.11.2023, respondent No. 6 published the draft development plan on 07.03.2024 instead of issuing direction to respondent No. 4, who was replaced by respondent No. 6, to complete the process or publication of the draft development plan under Section 26(1).
11/35
WP No. 7515 of 2024 & Ors
12. Hence, these petitions wherein some of the petitioners have challenged appointment of respondent No. 6 on the ground that it is in violation of Section 21(4A) and restraining him from executing and implementing the draft development plan published on 07.03.2024.
13. The learned senior advocate Mr. Sapkal, the learned senior advocate Mr. Dhorde, and learned advocate Mr. Kale who appears for the petitioners in the PIL would take us through the provisions of MRTP Act particularly the scheme regarding preparation of the development plan under Chapter III and would submit that once this Court in writ petition No. 1981 of 2016 had expressly concluded that the planning authority had failed to prepare a development plan for the extended limits of Chh. Sambhajinagar Municipal Corporation / planning authority, and when it had expressly concluded that the situation had arisen for operation of Section 21(4A), the only course available was to undertake the remaining work, by the concerned divisional deputy director of town planning or an officer nominated by him not below the rank of an Assistant Director of Town Planning. Neither the planning authority nor the State Government had power and jurisdiction to appoint respondent No.6. They would emphasize that when the provision expressly authorizes the aforementioned officers to exercise the powers, it ought to have been exercised by those authorities only and the planning authority and the State Government could not have exercised it. They would submit that 12/35 WP No. 7515 of 2024 & Ors giving a complete go by to such statutory mandate, the State Government in purported exercise of powers under Section 154 and 162 could not have overcome the provisions of Section 21(4A) circuitously. They would submit that even the division bench while passing the order in the contempt petition had concluded in paragraph No. 7 that the direction of the State Government to the planning authority to prepare revised development plan for the original area and development plan for the extended one was in breach of order passed in writ petition No. 1981 of 2016. Learned senior advocates would take pains to emphasize adjective 'concerned' contained in Section 21(4A).
14. The learned senior advocates submit that respondent No.4 was appointed and was undertaking the work for preparation of a draft development plan, who had informed the state government that the special unit headed by him had completed the work up to the stage of Section 25 regarding proposed land use plan which was ready for publication under Section 26, by his communication dated 28.08.2023. However, ignoring such communication, the State Government mala fide passed the impugned order dated 31.08.2023 directing him to handover the entire work prepared till then to respondent No. 6. Respondent No. 4 was working as a Deputy Director of Town Planning since 02.08.2021 and was the senior most officer but was sought to be replaced by respondent No. 6 who was junior to him. Respondent No. 6 being not the 'concerned' 13/35 WP No. 7515 of 2024 & Ors officer under Section 21(4A), his appointment is illegal. Learned senior advocates would submit that since the entire work up to the stage of Section 25 was completed by respondent No.4, only task left with respondent No. 6 was to publish the draft development plan under Section 26(1). They would submit that when writ petition No. 12190 of 2023 was filed challenging appointment of respondent No. 6, the Court had passed order on 30.10.2023. Pursuant to direction of this Court, respondent No. 4 had handed over the files to respondent No. 6. Accordingly by a specific communication dated 30.10.2023, a copy of which is annexed to the petition (Exhibit - 'M') the entire record was handed over to the Deputy Director of Town Planning that is respondent No. 6, duly sealed.
15. In order to ensure that no tampering happens, respondent No. 4 expressly asserted in the communication to open the seals in his presence alone and further expressly stating that the draft was ready for being published. They would submit that since the draft development plan for the extended area was already prepared by respondent No. 4, there was no propriety or occasion for the state government to set the clock back while appointing respondent No. 6 under the pretext of preparing a combined draft development plan for the extended area and the revised development plan for the original area. They would submit that the only task that remains to be completed in respect of preparation of draft development plan for the extended area was regarding publication under 14/35 WP No. 7515 of 2024 & Ors Section 26(1). Respondent No. 6 at the most could take further steps for completing formalities up to the stage of Section 30. They submit that there is every room to believe that under the pretext of preparing draft development plan, the draft prepared by respondent No. 4 is to be altered there is every possibility that the respondent No. 6 appointed by the State Government would not publish the draft prepared by respondent No. 4. They submit that respondent No. 6 has prepared a new draft development plan by engaging agency completely overlooking and by-passing the completed draft (proposed land use) prepared by respondent No. 4. They would submit that respondent No. 6 published the draft development plan on 07.03.2024 and the Municipal Commissioner in collusion has also disbursed amount of ₹ 6,00,00,000/- (Rupees Six Crore) to the agency which had helped in preparation of the draft development plan. Respondent No.6 called for the objections. All such objections were received and the hearing was concluded on 14.06.2024.
16. Learned senior advocate Mr. Sapkal would submit that petitioner's land was reserved in the draft development plan prepared by respondent No. 6 and he had raised an objection thereto. He would submit that there were 700 to 715 reservations in the original limits and the extended limits in the draft prepared earlier which have been reduced in the draft prepared by respondent No. 6 to 171. There are several such objections to the draft prepared by respondent No. 6. There are several 15/35 WP No. 7515 of 2024 & Ors errors as indicated in the petitions and draft prepared by respondent No. 6 being without jurisdiction, authority and illegal, is liable to be quashed.
17. Learned senior advocate Mr. Deshpande who has been appointed as special counsel for the state submitted that in light of powers conferred with the State Government under Section 162, no fault can be found with the orders dated 31.08.2023 and 07.11.2023 in directing preparation of a combined draft development plan for the extended area and revised draft for the original area which was already due for revision since more than 20 years from finalization of the original development plan had elapsed. He would submit that in fact this was expressly committed by the State Government before the High Court when it was hearing the contempt petition No. 582 of 2022 as reflected in the order dated 03.08.2023. He would submit that the petitioner from writ petition No. 1981 of 2016 had put up a challenge to that order of the High Court in the contempt proceedings but the Supreme Court has not interfered with it. He would submit that independently, even pursuant to the directions of this Court in writ petition No. 12190 of 2023, respondent No. 4 was directed to handover the entire record to respondent No. 6 dated 30.10.2023. Consequently, in the conspectus of the changed scenario when the State Government proposed to undertake steps for preparation of a combined development plan for the extended area and revised plan 16/35 WP No. 7515 of 2024 & Ors for the original area, there is no illegality in making the appointment of respondent No. 6.
18. Mr. Deshpande would submit that respondent No. 4 was working as the Deputy Director of Town Planning special unit, Nanded Vaghela Municipal Corporation. By the Government Resolution dated 02.08.2021, he was shifted in the development plan unit. His such appointment was not in accordance with order passed in writ petition No. 1981 of 2016 and was also not in tune with Section 21 (4A) of the Act. He would submit that the order passed in writ petition No. 1981 of 2016 was restricted to the draft development plan that was to be prepared for the extended limits. So far as revision of the original plan, Section 21(4A) was not applicable. The work of survey, preparation of land use map was undertaken by respondent No. 4 and in light of such peculiar circumstances no fault can be found with the State Government in invoking the powers under Section 162 of the MRTP Act.
19. As regards insistence of the petitioners to take further the work prepared by respondent No. 4 is not legally sustainable and is contrary to the order passed in writ petition No. 1981 of 2016. He had no authority to undertake the work under Section 21(4A). Mr. Deshpande would submit that respondent No. 4 was transferred to Chh. Sambhajinagar to work in the development plan unit under the Municipal Corporation on 02.08.2021. Thereafter, he was transferred as Deputy 17/35 WP No. 7515 of 2024 & Ors Director of Town Planning, Maitri Kaksh, Maharashtra State, Small Scale Industry Development Corporation on 09.12.2022. His such postings and transfers cannot be a subject matter of adjudication in these proceedings. In fact, he had independently challenged his transfer before the Maharashtra Administrative Tribunal which dismissed his original application. He would thus submit that there is no force much less legal substance in the insistence of the petitioners to take forward the task completed by respondent No. 4.
20. As regards the allegations regarding alteration in the draft prepared by respondent No. 4, he would submit that the very stand of these petitioners alleging drastic alterations in the draft prepared by respondent No. 6 are objectionable inasmuch as the work completed by respondent No. 4 has not been officially published at any place and is submitted before this Court in a sealed cover. The very allegation of these petitioners demonstrates that they are acting hand in gloves with respondent No. 4. He would submit that the modifications done under Section 28(4) have been submitted to the State Government in the form of report and in light of Section 31 the State Government may notify the modifications if those are found to be substantial in nature and the further course as laid down under the provisions of the MRTP Act would follow. Therefore, these allegations regarding alterations and modifications are premature. Hence he would pray to dismiss the petition. 18/35
WP No. 7515 of 2024 & Ors
21. We have considered the rival submissions and perused the papers.
22. In order to appreciate the controversy, it would be apposite to reproduce the relevant provisions of the MRTP Act, 1966.
Section 21(4A) If at any stage of preparation of the draft Development Plan, the time fixed under Sections 25, 26 and 30 for doing anything specified in the said sections lapses, the Planning Authority shall be deemed to have failed to perform its duty imposed upon it by or under the provisions of this Act and any work remaining to be done up to the stage of submission of the draft Development Plan under Section 30 shall be completed by the concerned Divisional Joint Director or Deputy Director of Town Planning and Valuation Department or an officer nominated by him not below the rank of an Assistant Director of Town Planning, as the case may be. The said officer shall exercise all the powers and perform all the duties of a Planning Authority which may be necessary for the purpose of preparing a Development plan and submitting it to the State Government for sanction and may, notwithstanding anything contained in any other law relating to the funds of the Planning Authority, recover the cost thereof from such funds:
Provided that, the said Officer shall exercise all the powers and perform all the duties of the Planning Authority within such period as may be specified by an order by the Director of Town Planning, having regard to the stage of preparation of Development plan.
Provided further that, the period specified under the first proviso shall not exceed the original period stipulated under the relevant section.
Section 25. Provisions for survey and preparation of existing land-use map After the declaration of intention of a Planning Authority or the said Office to prepare a Development plan but not later than six months from the date of such declaration or not later than such further time as the State Government may from time to time extend, a Planning Authority or the said Officer shall carry out a survey of the 19/35 WP No. 7515 of 2024 & Ors lands within the jurisdiction of the Planning Authority and prepare an existing land-use map indicating the existing use of land therein:
Provided that, the period so extended shall not in any case exceed one year in the aggregate.
Section 26. Preparation and publication of notice of draft Development Plan.
(1) Subject to the provisions of section 21, a Planning Authority, or the said officer shall, not later than two years from the date of notice published under Section 23, prepare a draft Development plan and publish a notice in the Official Gazette and in such other manner as may be determined by it stating that the Development plan has been prepared. The notice shall state the name of the place where a copy thereof shall be available for inspection by the public and that copies thereof or extracts therefrom certified to be correct shall be available for sale to the public at a reasonable price, and inviting objections and suggestions within a period of Thirty days from the date of notice in the Office Gazette:
Provided that, in case of a Municipal Corporation having population of ten lakhs or more, as per the latest census, the period for inviting objections and suggestions shall be sixty days from the date of notice in the Official Gazette.
Provided further that, the State Government may, on an application of the Planning Authority, by an order in writing, and for reasons to be recorded from time to time, extend the period for preparation and publication of notice of the draft Development Plan.
Provided also that, the period so extended shall not in any case, exceed,
(i) twenty-four months, in the aggregate, in case of Municipal Corporation having population of one crore or more, as per the latest census figures;
(ii) twelve months, in the-aggregate in case of Municipal Corporation or Planning Authority, as the case may be having population of ten 20/35 WP No. 7515 of 2024 & Ors lakhs or more but less than one crore, as per the latest census figures;
and
(iii) six months, in the aggregate, in any other case. (2) The notice shall also state that copies of the following particulars in relation to the Drat Development plan are also available for inspection by the public and copies thereof, or extracts therefrom certified to be correct, are also available for sale to the public at a reasonable price at the place so named, namely:-
(i) a report on the existing-land-use map and the surveys carried out for the purpose of preparation of the draft plan;
(ii) maps, charts and a report explaining the provisions of the draft Development plan;
(ii-a) map showing the planning units or sectors unalterable till the Development Plan is revised;
(iii) regulations for enforcing the provisions of the draft Development plan and explaining the manner in which the permission for developing any land may be obtained from the Planning Authority or the said officer, as the case may be;
(iv) a report of the stages of development by which it is proposed to meet any obligations imposed on the Planning Authority by the draft Development plan;
(v) an approximate estimate of the cost involved in acquisition of lands required by the Planning Authority for the public purposes, and also cost of works, as may be necessary.
Section 30. Submission of draft Development Planning (1) The Planning Authority or as the case may be, the said Officer shall submit the draft Development Plan along with the list of modifications or changes made in the draft Development plan under sub section (4) of section 28 to the State Government for sanction within a period of six months from the date of publication of the notice in the Official Gazette, regarding its preparation under section
26. 21/35 WP No. 7515 of 2024 & Ors Provided that, the State Government may, on an application by a Planning Authority or the said officer, by an order in writing, and for adequate reasons which shall be recorded, extend from time to time, the said period by such further period as may be specified in the order, but not in any case exceeding,-
(i) twenty-four months, in the aggregate, in case of Municipal Corporation having population of one crore or more, as per the latest census figures;
(ii) twelve months, in the aggregate, in case of Municipal Corporation having population of ten lakhs or more but less than one crore, as per the latest census figures; and
(iii) six months, in the aggregate, in any other case. (2) The particulars referred to in sub-section (2) of section 26 shall also be, submitted to the State Government.
Section 154. Control by State Government (1) Notwithstanding anything contained in this Act or the rules or regulations made thereunder, the State Government may, for implementing or bringing into effect the Central or the State Government programmes, policies or projects or for the efficient administration of this Act or in the larger public interest, issue, from time to time, such directions, or instructions as may be necessary, to any Regional Board, Planning Authority or Development Authority and it shall be the duty of such authorities to carry out such directions or instructions within the time-limit, if any, specified in such directions or instructions.
(2) If in, or in connection with, the exercise of its power and discharge of its functions by any Regional Board, Planning Authority or Development Authority under this Act, any dispute arises between the Regional Board, Planning Authority or Development Authority, and the State Government, the decision of the State Government on such dispute shall be final.
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WP No. 7515 of 2024 & Ors Section 162. State Government or person appointed by it may exercise power to perform duty conferred or imposed on Planning Authority and disbursement of expenses (1) If in the opinion of the State Government, any Regional Board, Planning Authority or Development Authority is not competent to exercise or perform, for neglects or fails to exercise or perform, any power conferred or duty imposed upon it by or under any of the provisions of this Act, State Government or any person or persons appointed in this behalf by the State Government may exercise such power or perform such duty.
(2) Any expenses incurred by the State Government or by such person in exercising such power or performing such duty shall be paid out of the funds of such Board or Authority; and if the Board or Authority fails to pay the expenses, then the State Government may make an order directing any person who for the time being has custody of any such funds to pay such expenses from such funds, and such person shall be bound to obey such order.
23. So far as the facts recited hereinabove are concerned and the chronology of the events, there has been no dispute. The facts which stand admitted can be culled down in sequence as under:-
'The town plan for the original limits of Aurangabad city (Chhatrapati Sambhajinagar) was sanctioned by the State Government in the year 1991. Pursuant to the expansion of the limits of the city, fringe area was included in the limits of the Aurangabad Municipal Corporation. A notification was issued under Section 21(1) of the MRTP Act on 04.02.2016 expressing intention to prepare a development plan for such extended portion. In Writ Petition No. 9181 of 2016, the aforementioned order was passed. Though the order of this Court was challenged before the 23/35 WP No. 7515 of 2024 & Ors Supreme Court by respondent - the Municipal Corporation, planning authority, it was dismissed. However, the aforementioned observations were made.'
24. In view of above state of affairs, it was imperative that further steps were taken as contemplated under Section 21(4A). It is evident that the decision of the division bench in writ petition No. 9181 of 2016 had reached finality and the planning authority having been declared to have failed to perform its duties under the provisions of the MRTP Act. The remaining work ought to have been completed by the 'concerned' Divisional Joint Director or the 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. Any of them thereafter, should have exercised all the powers and should have performed all the duties of the planning authority which were necessary for the purpose of preparing a development plan for the extended area and should have submitted it to the State Government for sanction. We need not elaborately deal with the submissions of learned senior advocate Mr. Sapkal, learned senior advocate Mr. Dhorde and learned advocate Mr. Kale for the petitioner from the PIL in respect of the persons/authorities which could have been under contemplation of the legislature when it had consciously used the word 'concerned' before the Divisional Joint Director or the Deputy Director of Town Planning and Valuation Department. We also need not go into the 24/35 WP No. 7515 of 2024 & Ors dictionary meaning and various citations pressed into services by the learned advocates as to what in the context the word 'concerned' should mean. It is well neigh clear that it is not possible and permissible for anybody including the planning authority or the State Government to resile from such statutory mandate whereby the authority mentioned in sub-section 4A of Section 21 alone have been conferred with the statutory powers to complete the task that remains to be done up to the stage of submission of the draft development plan under Section 30.
25. It is quite evident that it is only because of the failure of the planning authority to complete the work of preparation of draft development plan within the time frame that this provision seeks to supplement the work of preparation of draft development plan. In view of such plain reading of the provisions in juxtaposition to the decision of this Court in writ petition No. 1981 of 2016 as confirmed by the Supreme Court, there is no room for any debate as to which authority ought to have taken forward the work of preparation of draft development plan on failure of the planning authority to do it in the time frame.
26. However, as can be appreciated such a straight forward conclusion needs to be appreciated simultaneously with several subsequent variables which have emerged. As noted earlier, though the Supreme Court was not inclined to and dismissed the appeal of the planning authority against the order in writ petition No. 1981 of 2016, 25/35 WP No. 7515 of 2024 & Ors some observations were made as reproduced hereinabove in the latter part of the order.
27. These observations would demonstrate that it was submitted before the Supreme Court on behalf of Aurangabad Municipal Corporation and the State Government that by the letters dated 15.10.2018 and 15.01.2020 issued by the State Government, in exercise of powers under Section 154 of the MRTP Act, it had issued direction for preparing a combined development plan for the original area and for the newly added area which has been reproduced in the order of the Supreme Court.
28. After noticing the contents of both these communications, observations were made in paragraph No. 13 inter alia to the effect that in any event having regard to the communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits was to be prepared for Aurangabad city.
29. Thought the civil appeal was dismissed, it is pertinent to note that in paragraph No. 10, the very stand of these petitioners regarding conclusion of the High Court regarding failure of the planning authority and issuance of directions under Section 41(4A) was considered by reproduction that very provision in the backdrop of such state of affairs. It is evident that the Supreme Court was made known and was conscious of the supervening events whereby the State Government had issued 26/35 WP No. 7515 of 2024 & Ors direction for preparation of a combined development plan for the original and extended limits of Aurangabad Municipal Corporation.
30. True it is that these communications dated 15.10.2018 and 15.01.2020 indicate about the State Government having issued such instructions in purported exercise of powers under Section 154. However, a plain reading of the provision of Section 154 would reveal that it only declares supremacy of the powers of the State Government by use of a non obstante clause in implementing and bringing into effect the central and State Government programs, policies, projects and official directions from time to time to the regional board, planning authority, development authority which are bound to follow those instructions. This only speaks of power confirmed upon the State Government in implementation of the provisions of the MRTP Act. However, ex facie, when the legislature in its wisdom has provided a specific mechanism and conferred the powers on the authorities mentioned under Section 21(4A), on failure of the planning authority to prepare a draft development plan, in our considered view, the power of the State Government under Section 154 cannot extend and cannot be interpreted to mean that it can circumvent the statutory mandate under Section 41(4A), more so, when the aforementioned two communications dated 15.10.2018 and 15.01.2020 do not expressly declare that it was consciously issuing the directions in spite of the order of this Court in writ petition No. 1981 of 2016.
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WP No. 7515 of 2024 & Ors
31. It is interesting enough to note that as the directions of this Court in writ petition No. 1981 of 2016 as confirmed by the Supreme Court were not being followed, a contempt petition No. 582 of 2022 was filed by the petitioner - Govind. As is mentioned hereinabove while disposing of the contempt petition by the order dated 03.08.2023 observations were made in paragraph No. 8 when it was emerged that if the State Government was appointing an officer under Section 21(4A) and/or under Section 162 of the MRTP Act, the development plan special unit could submit its work carried out under Section 25 of the MRTP Act to such officer. Such officer could thereafter publish the draft development plan under Section 26 and undertake process up to the stage of Section 30 by submission of the draft to the State Government under Section 30. It was also noted that this would save the work already done by the special unit. It was submitted on behalf of petitioner - Govind that the State Government would agree for such arrangement and accordingly the statement was made on behalf of the State Government and it was accepted by the division bench. Though the order was challenged before the Supreme Court in Petition(s) for Special Leave to Appeal (c) No(s). 3059 of 2024, leave was granted for withdrawing it with liberty to file a substantial writ petition before the High Court and accordingly the present petition has been filed by the Petitioner - Govind. 28/35
WP No. 7515 of 2024 & Ors
32. Withdrawal of the appeal with the leave of the Supreme Court, makes it abundantly clear that it was open for the petitioner Govind to put up a challenge to the impugned order dated 31.08.2023. Consequently, it cannot be said that the observations made by the division bench in the contempt proceeding (supra), in any way estops petitioner Govind from raking up the issue again, questioning the impugned communication.
33. Coming back to the notification dated 07.11.2023, in purported exercise of the power under Section 154 of the MRTP Act, respondent no. 6 was appointed to carryout the work pursuant to the directions of this Court in Writ Petition No. 1981/2016. As is observed herein above, obviously, since respondent no. 4 was already working in preparation of the draft development plan for the extended area, by virtue of Section 21(4A) of the MRTP Act, he was the concerned officer contemplated therein, who could have carried forward the work. By the impugned decision dated 07.11.2023, respondent no. 6 was appointed in spite of the fact that he was not the 'concerned' officer under Section 21 (4A) and could not have been directed the work of preparation of draft development plan. It also appears that pursuant to a letter issued by a Minister to the Chief Minister of the State dated 02.11.2022, he had requested to transfer respondent no. 4 and to appoint respondent no. 6 in 29/35 WP No. 7515 of 2024 & Ors his place. Accordingly, respondent no. 4 was transferred by the order dated 09.12.2022.
34. Interestingly, respondent no.4 had put up a challenge to his transfer by submitting an Application No. 1112/2022 before the Maharashtra Administrative Tribunal. Though the tribunal stayed the transfer order on 16.12.2022, ultimately the original application was dismissed and the challenge put up by respondent no. 4 before this Court was also dismissed and the order reached finality. Obviously, therefore, we cannot go into legality of his transfer, even if it is being pointed out that there are circumstances to indicate that he was transferred at the behest of a Minister.
35. Pertinently, respondent no. 4 was brought to Aurangabad to work in the development plan unit under the respondent-Municipal Corporation on 02.08.2021 and was thereafter transferred on 09.12.2022. It was, therefore, not the case that respondent no. 4 for all the while was the concerned officer as contemplated under Section 21(4A). Since his transfer to the Municipal Corporation Aurangabad, he was working and engaged in preparation of a draft development plan. Since prior thereto he was never involved in preparation of a draft development plan for the extended area pursuant to the directions in Writ Petition No. 1981/2016, if the submissions and stand on behalf of petitioners are to be accepted, 30/35 WP No. 7515 of 2024 & Ors even he could not have been appointed under Section 21(4A), since he was not the concerned officer as contemplated therein.
36. In the backdrop of the above state of affairs, if the State Government in its wisdom had decided by the impugned Government resolution dated 31.08.2023, to exercise the powers under Section 162 of the MRTP Act, that too in light of the statements that were made with the consensus of both the sides during Contempt Petition No. 582/2022, as reflected in the order dated 03.08.2023, even if Section 21(4A) was relevant and ought to have been resorted to once a direction was issued in Writ Petition No. 1981/2016, the supervening events would indicate that the State Government had thought it fit, that instead of going for preparation of a draft development plan for the extended area and preparation of the revised plan for the original development plan area in a composite manner, in our considered view, this court in exercise of the limited jurisdiction under Article 226 of the Constitution of India would be loath in doing so.
37. In this regard, it is further pertinent to note that even the petitioners do not seem to be fair enough in invoking the powers of this Court under Article 226 of the Constitution of India. The reason being, admittedly, respondent no. 4, who was involved in the work of preparation of draft development plan, he was merely involved in its preparation and 31/35 WP No. 7515 of 2024 & Ors had never published it rather could not have legally published the work undertaken by him anywhere. Admittedly, pursuant to the directions of this Court, all his such work is submitted to this Court in a sealed cover, which is not as yet opened and the parties have never been allowed to go through it. In the backdrop of this, the learned advocate Mr. Kale for the petitioner from the PIL could tender across the bar in a spiral bound compilation running into more than 100 pages and not only learned advocate Mr. Kale but even the other Senior Advocates for the petitioner would take us through this compilation in the process of emphasizing as to how there have been rampant and substantial changes in the draft development plan prepared in a composite manner for the original development plan limits and the extended limits including the fringe areas of villages Satara and Deolai. If it is a matter of preparation of a draft under Section 26(1) of the MRTP Act, simultaneously, with the work for preparation of a draft development plan for the extended area, one wonders as to how these petitioners could lay hands on all these photo copies which in detail cover Annexure II in the form of deviation statement, (original limit) draft report of proposed land use plan under Section 26(1) of the MRTP Act for the entire area of the Municipal Corporation including original limit (II Revision) + Additional Area (1st Revision + newly added area), giving all the particulars in respect of the proposals in sanctioned development plan (Original Limit) of the year 32/35 WP No. 7515 of 2024 & Ors 2001, proposals in second revision plan (GIS) and remarks and status. This compilation also contains photo copies of Annexures I to X containing the substantial changes as contemplated under Section 28(4) of the MRTP Act, prepared sector wise giving all the details.
38. Consequently, we find enormous substance in the submissions made by the learned Senior Advocate Mr. Deshpande for the Municipal Corporation. If the work completed by respondent no. 4 could not have been divulged legally to anybody, the petitioners could not have been able to argue extensively, pointing out the individual items in the draft prepared by respondent no. 6 and submitted to the State Government under Section 28(4) of the MRTP Act and attempting to demonstrate us as to how it is a substantial modification which would not have been possible but for the petitioners being hand in gloves with respondent no. 4. Again, if it is a matter of Section 28 (4) of the MRTP Act, it would be for the State Government to notify the modifications under Section 31, if those are found to be substantial in nature and the further course would follow. We are pointing out these circumstances just to demonstrate that the petitioners while seeking the extraordinary relief under Article 226 of the Constitution of India are not coming with clean hands.
39. Needless to state that whether there is any substantial change or otherwise would be for the State Government to ponder upon and it 33/35 WP No. 7515 of 2024 & Ors would be premature to resort to hypothesis and to examine if indeed in the report submitted to the State Government, there are substantial changes or otherwise. If at all there is any such substantial change, the aggrieved person would have a cause and can take up the grievance. However, that stage is still to occur.
40. The upshot, the submissions on behalf of the petitioners that what was sought to be prevented by the direction of this Court in Writ Petition No. 1981/2016, has been achieved circuitously by bringing into picture the respondent-Municipal Corporation, which is a planning authority, which otherwise could not have had any reason or occasion to get itself involved in preparation of a development plan in the light of Section 21(4A), which otherwise could have been a legitimate stand and argument on behalf of the petitioners, the aforementioned circumstances in light of the supervening events and exercise of the powers by the State Government under Section 162 has changed the entire scenario. Exercise of that power by the State Government and directing a composite plan to be prepared for the revision of the original limits and for preparation of the draft for the extended limits, in our considered view, has changed the scenario and has mellowed down the consequence and effect of the direction of this Court in Writ Petition No. 1981/2016. 34/35
WP No. 7515 of 2024 & Ors
41. We are of the considered view that there are not enough circumstances and material to question the decision of the State Government.
42. All the Writ Petitions and the Public Interest Litigation are dismissed.
43. Rule is discharged.
[ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ]
JUDGE JUDGE
jhs
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