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7 An affidavit-in-reply was presented in the said writ petition by the Town Planing authority on behalf of Respondents wherein assurance was given that the time limit, as provided under the Act would be strictly adhered to for publishing draft development plan. It was further submitted that the work of development plan is in progress and would be handed over to Aurangabad Municipal Corporation for publication within stipulated time limit. The writ petition ultimately came to be disposed of after the draft development plan came to be published in the Official Gazette on 06.02.2016. It is further contended in the petition that on 31.10.2015, draft development plan was actually handed over to Aurangabad Municipal Corporation for {6} wp198116.odt publication by the Town Planning Officer i.e. Respondent No.5.

PRESCRIPTION OF TIME LIMIT UNDER SECTION 26 OF THE M.R.T.P. ACT AND SECOND PROVISO THEREUNDER WHETHER MANDATORY AND EX POST FACTO SANCTION EXTENDING THE TIME LIMIT, WHETHER WITHIN CONTEMPLATION OF LAW.

Section 23 of the Act directs the Planning Authority that before carrying out a survey and preparing an existing-land-

use map of the area as provided under Section 21, by a resolution make a declaration of its intention to prepare a development plan and the said Resolution is necessary to be published in the Government Gazette and also in one or more local news paper with a view to invite suggestions and objections from public within a period not less than sixty days from publication of notice in the Official Gazette. Section 26(1) provides a time limit for the planning authority or the said officer from the date of notice published under Section 23 to prepare a draft Development Plan and to publish a notice, in that regard, in Official Gazette. The second proviso to Section 26(1) empowers the State Government on an application of the planning authority to grant extension by an order in writing and for the reasons to be recorded from time to time and such extension in case of Municipal Corporation having population of 10 lakhs and more can be up to twelve months. In the instant matter, notice, as contemplated under Section 23 of the Act, declaring the intention of the planning authority to prepare a {29} wp198116.odt draft development plan was published under Section 23(1) and 38 of the MRTP Act, 1966 on 26.05.2010. The notice declares intention of the Planning Authority to prepare development plan for the area denotified by Cidco, Aurangabad, recently added Shivajinagar area and revised development plan of additional area of Aurangabad Municipal Corporation. According to the petitioner, once declaration is made under Section 23 by the Planning Authority, the period prescribed under Section 26 commences and as a result of failure of the planning authority to prepare development plan within two years, as provided under Section 26, the consequences provided under Section 21(4A) shall follow and further process of preparation of development plan and submission thereof to the State Government shall be carried out by the Authority prescribed under Section 21(4A).

35 It is contended by the petitioner that legislative intent behind prescribing the time limit would be frustrated if the State or concerned Authorities are permitted to grant extension ex post facto without considering mandate of provisions of the Act. It is evident on reading text of the provisions of Section 26, that it mandates that the 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. No doubt, the second proviso empowers the State Government to grant extension of time, however, by virtue of third proviso, limitation is prescribed on the powers of the State Government in respect of grant of extension and outer limit of twelve months is prescribed in case of a Municipal Corporation having population of ten lakhs or more, but less than one crore. It is, thus, clear that the law mandates preparation and publication {34} wp198116.odt of the draft development plan within a period of two years from the date of publication of intention under Section 21 and the said period can be extended by one year in aggregate. The provisions of Section 26 and the prescription of time limit provided therein for preparation and publication of draft development plan shall have to be read with Section 21(4A) of the MRTP Act. Section 21(4A) prescribes the consequences for failure of the Planning Authority to adhere to the time frame provided under Section 26. It is provided in Section 21(4A) that 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. It is, thus, clear that once the limitation provided under Section 26(1) for preparation and publication of notice of draft development plan lapses, the consequences, as provided under sub-section (4A) of Section 21 shall follow and it shall have to be deemed that the Planning Authority has failed to perform the {35} wp198116.odt duties, imposed upon it and the work remaining to be done up to the stage of submission of draft development plan shall have to be transferred to the authority prescribed under sub-section (4A) of Section 21.

36 In the instant matter, notice under Section 23 of the Act, declaring the intention to prepare a development plan, was published on 07.02.2013 and as such, the period provided for preparation and publication of notice of draft development plan came to an end on 06.02.2015. Until this date, the draft development plan was not prepared by the Planning Authority. The officer appointed by the Planning Authority with the approval of the State Government, submitted the draft development plan in sealed cover to the Municipal Corporation for publication on 25.03.2015 i.e. after lapsing of the period provided under Section 26(1). The request for grant of extension of time, as provided under the second proviso, was itself tendered after lapse of the extended period i.e. application for extension was tendered to the Director of Town Planning on 29.03.2016. The Planning Authority sought extension under the proviso for a period commencing from 07.02.2015 to 06.02.2016. The said request for grant of extension was made after lapsing of extended period, which can be provided under the proviso to Section 26. In the meantime, the development plan was published by the Municipal Corporation on 04.02.2016. It is, thus, clear that even until lapsing of the extended period, as provided under the third proviso to Section 26, the Planning Authority did not make any request for grant of extension and proceeded to publish the draft development plan {36} wp198116.odt without securing such extension. It must be recorded that grant of extension under Section 26 (second proviso) is not merely an empty formality. The State Government, on consideration of application of Planning Authority, by an order in writing and for the reasons to be recorded from time to time, is required to grant extension, as requested. The State Government is expected to apply its mind to the circumstances and thereafter grant extension on consideration of all relevant factors. Section 26(1) of the Act provides a mandate to prepare and publish the notice of draft development plan within a period of two years. The word used in sub-section (1) of Section 26 is "shall" and not "may". There is a power with the State Government to grant extension, but the power is to be exercised after application of mind and by issuing order in writing and for the reasons to be recorded. If the facts of the instant case are considered, it is clear that for initial period of two years, as provided under Section 26(1), after publication of intention under Section 23, the notice in respect of preparation of the draft development plan was not published. It is permissible for the State Government to grant extension for a total period of twelve months in aggregate, however, until completion of extended period of one year from the date of publication of intention under Section 23 i.e. up to 06.02.2016, even a request was not made to the Director for grant of extension and such a request was made belatedly after publication of notice of the draft development plan.