Bombay High Court
Govind Bajirao Navpute vs The State Of Maharashtra Through Its … on 8 April, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:10436-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
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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.
• 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.
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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,
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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.
...
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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 ?
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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
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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, Special9/35
WP No. 7515 of 2024 & OrsUnit 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
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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).
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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
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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’
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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
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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
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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
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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
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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.
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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 the19/35
WP No. 7515 of 2024 & Orslands 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 ten20/35
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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.
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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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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 the23/35
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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
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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,
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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
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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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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.
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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
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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,
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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
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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
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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
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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.
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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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