Madhya Pradesh High Court
Madan Parmaliya vs State Of Madhya Pradesh And Ors. on 23 March, 2007
Equivalent citations: 2007(2)MPHT221
Bench: Chief Justice, R.S. Jha
ORDER A.K. Patnaik, C.J.
1. The petitioner has filed this writ petition under Article 226 of the Constitution as a Public Interest Litigation for declaring the provisions of Sections 14,15,17A, 18 and 23-A of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the Adhiniyam') as ultra vires the Constitution.
2. This writ petition was heard alongwith W.P. No. 13753/-2006 in which we have delivered a separate judgment today holding that the provisions of Sections 14, 16, 17-A, 18 and 20 of the Adhiniyam are not ultra vires the Constitution. In this writ petition, however, the petitioner has taken same additional grounds and hence this separate judgment.
3. Mr. Vivek Dalai, learned Counsel for the petitioner submitted that under Section 14 of the Adhiniyam power has been vested in the Director Town and Country Planning (for short 'the Director') to prepare the development plan. He submitted that Article 243W of the Constitution provides that subject to the provisions of the Constitution, the Legislature of a State may, by law, endow the Municipalities with powers in relation to matters listed in Twelfth Schedule of the Constitution which includes town planning. He submitted that Section 14 of the Adhiniyam which vests the power of preparing a development plan on the Director instead of the Municipalities is thus ultra vires Article 243W of the Constitution.
4. We are unable to accept the aforesaid submission of Mr. Dalai. Article 243W of the Constitution says that subject to the provisions of the Constitution, the Legislature of a State 'may' by law endow the Municipalities with powers including those in relation to the matters listed in the Twelfth Schedule of the Constitution which includes town planning. The word "may" in Article 243W of the Constitution indicates that this is only an enabling provision and it is not mandatory for the legislature to make a law conferring on the Municipalities powers relating to town planning. This view has been taken by the Supreme Court in Shanti G. Patel and Ors. v. State of Maharashtra and Ors. . Relevant portion of Para 9 of the judgment of the Supreme Court in Shanti G. Patel v. State of Maharashtra and Ors. (supra) is quoted hereinbelow:
The Twelfth Schedule of the Constitution referable to Article 243W, inter alia, provides for urban planning including town planning, regulation of land-use and construction of buildings. Thus, Article 243W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land-use and construction of building, etc. As per the aforesaid judgment of the Supreme Court in the case Shanti G. Patel v. State of Maharashtra and Ors. (supra), Article 243W of the Constitution does not envisage that the existing laws relating to town planning would become non- operative. Thus, Section 14 of the Adhiniyam entrusting the powers to prepare a development plan to the Director will continue to operate till the legislature vests such powers on the Municipalities in accordance Article 243W of the Constitution.
5. Mr. Dalai next submitted that Article 243ZD of the Constitution provides that there shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole and the legislature may by law make provision with respect to the composition of District Planning Committees and the manner in which the seats in such Committees shall be filled and the proviso in Article 243ZD further states that not less than four-fifth of the total members of the Committee shall be elected, by and amongst, the elected members of the Panchayat at the district level and to the Municipalities in the district in proportion to the ratio between the population of the rural areas and other urban areas in the district. He further submitted that Section 17-A of the Adhiniyam, on the other hand, provides for constitution of a committee consisting of Mayor of the Municipal Corporation or President of the Municipal Council or Nagar Panchayat as the case may be, President of the Zila Panchayat, Members of Parliament representing constituencies, all members of the State Legislative Assembly representing the constituencies, Chairman of the Town and Country Development Authority or Special Area Development Authority, if any, President of the Janpad Panchayat and Sarpanchas of the Gram Panchayats which wholly or partly fall within the planning area and other persons not exceeding seven to represent specific interests to be nominated by the State Government and an officer not below the rank of Deputy Director, Town and Country Planing, who shall be the Convenor of the Committee. He submitted that the composition of the Committee constituted under Section 17-A of the Adhiniyam is entirely different from the composition of the District Planning Committee envisaged in Article 243ZD of the Constitution and hence Section 17-A of the Adhiniyam is ultra vires the Constitution.
6. This contention of Mr. Dalai is entirely misconceived. Article 243ZD of the Constitution provides for the composition of committee for district planning where Section 17-A of the Adhiniyam provides for constitution of a committee in relation to town and country planning and not district planning. Hence the composition of the committee constituted under Section 17-A of the Adhiniyam need not be same as composition of the district planning committee contemplated by Article 243ZD of the Constitution.
7. Mr. Dalai next submitted that Section 23-A of the Adhiniyam before its amendment by Act No. 22 of 2005 provided that the State Government may make modification in the development plan or the zoning plan "for urgent public purpose", but Section 23-A of the Adhiniyam as substituted by Act No. 22 of 2005 has omitted the words "for urgent public purpose" and the consequence is that the State Government may make modification in the development plan or the zoning plan even if there is no urgent public purpose for such modification.
8. Section 23-A of the Adhiniyam as substituted by Act No. 22 of 2005 is quoted hereinbelow:
23-A. (1) (a) The State Government may, on its own motion or on the request of a Town and Country Development Authority, make modification in the development plan or the zoning plan for any proposed project of the Government of India or the State Government and its enterprises or for any proposed project related to development of the State or for implementing a scheme of a Town and Country Development Authority, and the modification so made in the development plan or zoning plan shall be an integral part of the revised development plan or zoning plan, (b) The State Government may, on an application from any person or an association of persons for modification of development plan or zoning plan for the purpose of undertaking an activity or scheme which is considered by the State Government or the Director, on the advice of the committee constituted by the State Government for this purpose, to be beneficial to the society, make such modification in the development plan or zoning plan as may be deemed necessary in the circumstances of the case and the modification so made in the development plan or zoning plan shall be an integral part of the revised development plan or zoning plan.
It will be clear from Clause (a) of Sub-section (1) of Section 23-A of the Adhiniyam that the modifications in the development plan or the zoning plan under Clause (a) of Sub-section (1) of Section 23-A are to be for prosed projects of the Government of India or the State Government and its enterprises or for any proposed projects related to development of a State or for implementing a scheme of a Town and Country Development Authority and all these proposes by their very nature are public purposes. A reading of Clause (b) of Sub-section (1) of Section 23-A of the Adhiniyam as substituted by Act No. 22 of 2005 quoted above would also show that the State Government may on application from any person or an association of persons make modifications to the development plan or zoning plan for the purpose of undertaking an activity or scheme which is considered by the State Government and the Director on the advice of the committee constituted by the State Government for this purpose, "to be beneficial to the society". "To be beneficial to the society" also mean "for public purpose". Thus, the contention of Mr. Dalai that by the omission of words "for urgent public purpose", from Section 23-A of the Adhiniyam by Act No. 22 of 2005, the State Government would be free to modify the development plan or the zoning plan even for a purpose other than public purpose has no merit.
9. Mr. Dalai finally submitted that the Collector of Indore District has submitted a report to the Government that the residential area of Indore has increased by 62% and the roads have been reduced. He submitted that in K.K. Bhalla v. State of Madhya Pradesh and Ors. , the Supreme Court has held while interpreting the Adhiniyam that the State Government in exercise of its executive powers could not have directed that the lands meant for use for commercial purposes may be used for industrial purposes. He further submitted that in Writ Petition No. 2902/95, a Division Bench of this Court delivered a judgment and order dated 16-2-1996 quashing an order passed by the Raipur Development Authority sanctioning the construction of a community hall in favour of the President, Lions Club and directed that the building be demolished and open space be restored of its original position. He submitted that this order was passed by the Court after holding that once a place has been left as an open space in a scheme prepared by the Town and Country Development Authority and such scheme has become final, there is no provision under the Adhiniyam under which the State Government could interfere with such scheme. These submissions of Mr. Dalal have nothing to do with vires of Sections 14, 17-A, 18 and 23-Aof the Adhiniyam challenged in the writ petition and therefore it is not necessary to express any opinion thereon.
10. With the aforesaid observations, this writ petition is disposed of in terms of our judgment delivered today in W.P. No. 13753/2006.