1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 3229 OF 2007 (Lalit Mulchand Bedmutha .v. State of Maharashtra and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri P.C. Madkholkar, Advocate for the petitioner. Shri A.S. Fulzele, AGP for the respondent Nos.1 to 3. Shri S.D. Mehadia, Advocate for the respondent No.4. Shri Abhay Sambre, Advocate for the respondent No.5. Shri R.L. Khapre, Advocate for the respondent No.6. CORAM : A.M. KHANWILKAR AND S.R. DONGAONKAR, JJ. 04TH JULY, 2008 P.C. Heard learned Counsel appearing on behalf of the respective parties. Perused the documents on record. 2. By this petition under Article 226 of the Constitution of India, the petitioner, who incidentally is one of the Councilors of the respondent No.5 – Municipal Council, has filed this petition praying for declaration that it be held that the action on the part of the Chief Officer, Municipal Council, Buldana (respondent No.5) of granting permission for construction and sanction plan at Annexure-L dated 5th December, 2006, is illegal, bad in law and void and the same be quashed and set aside. The petitioner has asked for further 2 declaration that without there being any modification after following due process of law under Section 37 of the Act, permission as granted by the Municipal Council could not have been granted. By way of amendment, the petitioner has asked for further relief that the Government Resolution dated 17th October, 2001 at Annexure-P to the petition be declared violative of Article 14 of the Constitution of India and quash the same and also letter dated 8th September, 2002 issued by the Chief Civil Engineer, MSRTC, Mumbai at Annexure-Q being illegal and bad in law. These are the main reliefs claimed in the petition. 3. Briefly stated, the respondent No.4 – Maharashtra State Road Transport Corporation (MSRTC) owns and possesses Nazul Sheet No.5-D, Plot No. (1/1 – 1/2)/4 + (1/1 + 1)/2. The said plot is earmarked for Bus Station. It admeasures about 38,500 square meters. The respondent No.4 decided to develop the said plot by providing infrastructure for the passengers. The respondent No.4 with a view to provide better facilities to its passengers thought it appropriate to permit development of portion of the plot admeasuring about 699.45 square meters for a commercial complex so as to provide for outlets required in respect of items and goods for the utility of the passengers and incidental matters. 4. It is not necessary to elaborate the other facts which are stated in the petition except to observe that after the said decision 3 taken in principle by the respondent No.4, it proceeded to appoint respondent No.6 as a contractor to develop it on BOT basis and provide necessary infrastructure specified in the BOT contract. Here, it may be relevant to point out that the BOT Agreement entered between the respondent No.4 and respondent No.6 Contractor specifically provides that the developer may lease the built up area except the portion to be constructed for the lessor to the extent that the lease period does not exceed the specified period of thirty years. Further, the details of such lease shall be provided to the lessor (respondent No.4). It also stipulates that the clauses of Condition of the Contract and other provisions specified in the contract documents shall be applicable to the lessee also without any limitation. It is further provided that while marketing the constructed space, the Developer has to ensure that the use adheres to the land use plan of the area. It further provides that the developed commercial space cannot be put to use for the specified activities such as selling and vending of liquor, gambling, immoral activities, any other illegal activities, in stead the developed commercial space is expected to be utilised for passenger transport related business other than as agent only of MSRTC. Consequent to authorisation, the respondent No.6 for and on behalf of the respondent No.4 submitted the development plan to the respondent No.5 – Municipal Council, which, in turn, has approved the same. It is that action which is essentially questioned in the present petition. 4 5. The principal grievance of the petitioner is that the effect of permitting the respondent No.6 to construct commercial complex on the plot earmarked for Bus Station, results in modification of the development plan for which it is mandatory to follow procedure prescribed by Section 37 of the Maharashtra Regional Town Planning Act. To address this controversy, we shall straight away refer to Section 37 of the Maharashtra Regional Town Planning Act, which reads thus :- “37. Modification of final Development Plan. (1) Where a modification of any part of or any proposal made in a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government [shall, within ninety days from the date of such direction, publish a notice] in the Official Gazette [and in such other manner as may be determined by it] inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. ... ...” 6. On plain reading of this provision, it is obvious that this provision is attracted if it is a case of modification of any part or any proposal made in a final development plan which is of such nature that it will not change the character of such development plan. The question, therefore, that needs to be addressed is whether by permitting respondent No.4 and respondent No.6 (for and on behalf 5 of the respondent No.4), to construct a commercial complex on the plot earmarked for Bus Station, results in minor modification of the development plan. That controversy will have to be addressed keeping in mind the provisions of the Standardised Building Bye Laws and Development Control Rules for “B” and “C” Class Municipal Councils of Maharashtra. Initially, there was some controversy about the category in which the respondent No.5 – Municipal Council belongs. However, it is now agreed that the respondent No.5 is a “B” class Municipal Council. It is on that premise , we would examine the provisions applicable to such a Municipal Council. Bye Law 20 is the relevant provision that will have to be kept in mind, which reads thus:- “20. Land use classification, upon Spaces, Area and Height Limitations. The various land use classification shall be in the following zones. B-class Municipal Council C-Class Municipal Council (a) Purely Residential Zone (R1)... Residential (R) Residential with shop lines at Ground Floor (R-2) (b) Agricultural Produce Marketing Agricultural Produce Committee Zone. Marketing Committee Zone. (c) Industrial Zone (d) No Development Zone (e) Special Reservations 6 The various occupancies and use to be permitted in the various land use zones in `B' and `C' class Municipal Councils shall be as given in Appendix-G. Any other land uses not identified in Appendix-G or marginal changes may be permitted by the Authority in consultation with Director of Town Planning. ... ...” 7. Bye law 20 will have to be considered along with Appendix- G, which reads thus :- APPENDIX G (Bye-Law No.20.1) Land use classification and various building occupancies/uses permitted G-1. RESIDENTIAL ZONE R1 (Purely Residential) _______________________________________________________________ Serial No. Permissible _______________________________________________________________ 1. Any residence. 2. Customary Home Occupation i.e. Occupation conducted only by persons residing in the dwelling, the area for such use not exceeding 25 per cent of the total floor area of the dwelling of 20 sq.m. whichever is less and without any public display of goods. 3. Primary and Nursery Schools. 4. Religious Buildings. 5. Parks, Playgrounds, Nurseries, Green houses. 6. Swimming Pools and Gymnasiums. 7. Medical and Dental Practitioners Clinics and Dispensaries. 8. Camping Grounds organised by recognised agencies. 7 9. Petty convenience shops for domestic needs of upto 60 sq.m. in area and facing road width not less than 6 m. 10. Ration shops, not exceeding 15 sq.mt. area. 11. Police Chowki, Civil Defence Office, Home Guards Office and other offices serving the local area not exceeding 15 sq.m. area. 12. Stables for domestic cattle upto 2 animals per plot. 13. Public Conveniences. _______________________________________________________________ G-2. RESIDENTIAL ZONE R2 (all plots in residential zone on roads more than 9 m. in gaothan and 12 m. or more in outside area). _______________________________________________________________ Serial No. Permissible _______________________________________________________________ (i) Educational buildings including hostel, provided that workshops and laboratories and such users attached to such institutions if they are likely to cause any nuisance shall be set back at least 12 meters from the plot boundary. Institution classes provided they are in accordance with regulations for educational buildings. (ii) Social and sports clubs and Cultural Buildings, marriage halls, subject to regulations for Assembly buildings. (Cinema Theater). (iii) Libraries, Art Galleries, Museums, Acquaria. (iv) Group Medical Centers (Polyclinics) other Medical and Public Health users, provided they are located on roads having a width of 12 m. or more but only on Ground Floor of a building and on a first floor level where building is on stilts. (v) Professional offices and studies of residents of the premises and incidental to such residential use, not occupying a floor area 8 exceeding 20 sq. m. (vi) Research, experimental and testing laboratories not involving any danger of fire or explosion not of any obnoxious nature. (vii) Bus Stations in sites selected with the approval of the Divisional Deputy Director of Town Planning. (viii) Cinema theaters in accordance with prevailing regulations. (ix) Holiday homes and Dharmashalas. (x) Police Station, telephone exchanges, Post Offices, Government and Municipal Offices, branch offices of banks, electric sub-stations, pumping stations and fire stations. (xi) Poultry keeping for domestic use subject to a limit of 20 birds. Poultry farms if the plot size is more than 0.8 Ha. minimum, the number of birds is restricted at the rate of 0.25 sq.m. per bird and a minimum marginal distance of 9 m. is maintained. Domestic cattle not more than 2 in number in a separate stable structure. (xii) Broadcasting studios. (xiii) Service Industries Class-A, commercial uses as per lists, which are located on `commercial streets'. For the purpose of these users a commercial street shall be deemed to be a road with a width of more than 12 m. in the case. (xiv) Banks. (xv) Restaurants and their Accessory uses. (xvi) Hair dressing saloons and beauty parlours. (xvii) Photo and picture framing. (xviii) Apparel (cap making, hat and turban making etc.). 9 (xix) Residential hotels. (xx) All uses in R1, without restriction of area. (xxi) Retail shops including Departmental Stores. (xxii) Taxi and scooter stands. (xxiii) Wholesale shops including storage upto 50 sq.m. in area. (xxiv) Grain godowns. (xxv) Auto supply stores and showrooms for motor vehicles and machinery. (xxvi) Sales of used or second hand goods or merchandise. (xxvii) Club houses or other recreational activities conducted as business. (xxviii) Storage of furniture, household goods and coal fire wood subject to safety considerations. (xxix) Retailing of building material open or enclosed with not more than 50 sq.m. per establishment and photographic studio and laboratory. (xxx) Repair, cleaning, painting of motor vehicles with no floor above and repairing area segregated. (xxxi) Storage and sale of kerosene not exceeding 1,000 liters in grossery and approved ration shops. (xxxii) Storage and sale of liquified petroleum gas in cylinders not exceeding 100 kg. in show rooms/distribution centres. (xxxiii) Storage and sale of liquified petroleum gas cylinders not 10 exceeding 6,3000 kg. in a separate godown conforming to the existing regulations of Chief Controller of Explosives, Government of India, provided further that the applicant shall make adequate fire fighting arrangements at his cost in his plot to the entire satisfaction of the Planning Authority. (xxxiv) Electronic industry of assembly type (and not manufacturing type) with special permission of the Chief Officer with following restrictions :- (1) Restricted on ground floor only with area not exceeding 50 sq.m. (2) Total electric power inclusive of motive power and heat- ing load not exceeding 5 H.P. (3) Number of persons employed not exceeding nine.” _______________________________________________________________ G-3. AGRICULTURAL PRODUCE MARKETING COMMITTEE ZONE. _______________________________________________________________ Serial No. Permissible _______________________________________________________________ (i) Whole-sale Commercial Trading. (ii) Storage, Sale, Distribution of Commodities Regulated by AP Marketing Committee. (iii) Warehouses, Godowns. (iv) Municipal Markets for vegetables and other edible items. (v) Timber Depots. (vi) Saw Mills. _______________________________________________________________ G-4. SERVICE INDUSTRIES I1. G-4.1. Service Industries Class `A' is permitted under R Zone and Service Industries, Class`B' is permitted in Industries Zone I. The limitation to area permitted, maximum number of persons to be 11 employed, maximum permissible power requirement and special conditions for Class `A' Service Industries are given in the schedule. The corresponding limitations for 'B' service industries shall be decided by the Authority in consultation with the Director of Town Planning based on the Building Bye-laws and Development Control Rules for `A' Class Municipal Councils. Schedule for Service Industries (.............) G-5. INDUSTRIAL ZONE, J. G-5.1. The permissible service (Class B), light extensive, heavy, large, hazardous and obnoxious industries in Industrial Zone I, shall be as decided by the Authority in consultation with the Director of Town Planning based on the provisions of Building Bye-laws and Development Control Rules for `A' Class Municipal Councils. G-6. NO DEVELOPMENT ZONE. G-6.1. The following work shall be permitted in the No Development Zone :- (1) Any use or development of land connected with the carrying out of agricultural and allied operations including horticulture poultry keeping diary farms cattle raising piggeries agricultural research and agricultural education. (2) Nurseries. (3) Forestry (4) Golf links race tracks and allied buildings (5) Public parks private parks playgrounds, summer camps, and camping ground organised by recognised agencies. (6) Storage and drying of fertilisers (outside municipal limits). 12 (7) Construction of buildings including quarters of essential staff for public utility concerns such as electric sub-stations, receiving stations, chilling plants, water works, sewage disposal works. (8) Poultry and Cattle farm. G-7. RESERVATIONS. G-7.1. Special reservations shall be made for the following uses given below as these do not fall under G-1 to G-6. (1) Airports (2) Radio Stations (3) Television stations (4) Micro wave stations (5) Cemetaries, crematoria (6) Quarrying works except for the development of area itself (7) Hospitals for contagious diseases, T.B. clinics (8) Lunatic asylum (9) Sewage disposal workshop (10) Bus terminals and depots (11) Slaughter houses (12) Sites for such other purposes which are considered necessary as an amenity to facility for the residents of the town or as required by any State or Central Government Department or a public authority or statutory authority for more efficiently carrying out its duties and purposes.” 8. Reverting back to Bye law 20, it is noticed that it is in two parts. The first part pertains to the different classification of land use, such as Purely Residential Zone (R1), Residential Zone with shop lines (R2), Agricultural Produce Marketing Committee Zone, Industrial Zone, No Development Zone, Special Reservations. Insofar as the suit 13 plot is concerned, it is common ground that the same falls within R-2 zone. If it is so, in terms of Bye Law 20, the said plot can be utilised for various occupancies/uses as is specified in Appendix-G2. 9. As aforesaid, it is not in dispute that the plot in question is earmarked for Bus Station, which is expressly covered by Clause (vii) of G2 of Appendix. The question is, whether the plot can be also exploited for a commercial complex and in doing so will it be a case of change or modification within the meaning of Section 37. In our opinion, the respondents have rightly relied on the decision of the Apex Court in the case of Forward Construction Co. and others .v. Prabhat Mandal (Regd.), Andheri and others (reported in AIR 1986 SC 391). Indeed, the said decision deals with a case where the plot was reserved for Bus Depot falling within the commercial zone. Unlike in the present case, there is no reservation in the development plan as against the suit plot. However, as the suit plot is owned and possessed by the respondent No.4, it is intended to be used for bus station. Nevertheless, the plot falls within Residential (R2) Zone. In the case of Forward Construction Co. and others, the Apex Court has observed that if the user was to be completely or substantially changed only then the prior modification of the development plan was necessary. In that case, the Court proceeded to hold that the user of the plot has not been changed as it continued to be used for bus depot along with the combined user with a commercial use to augment the income of the Corporation for public purposes. The principle underlying the 14 said decision will apply to the case on hand. Even in the present case, the dominant user of the plot will remain that of a bus station. As is noted earlier, the aggregate area of the plot in question is around 38,500 square meters out of which only 699.45 square meters area will be exploited for commercial complex. That will be less than two percent of the total area of the plot. 10. As the principal user would remain for a bus station, the exploitation of less than two per cent of plot area for commercial purpose cannot be termed as change or modification necessitating procedure under Section 37 of the Act; provided, however, the user of the commercial complex is confined to the permissible users specified in G2. It would a different matter if the respondents intend to use the commercial complex for activities other than the covered under G2. In that case the rigours of Section 37 may get attracted. It is nobody's case that there is such possibility. On the other hand, as has been noted earlier, Clause 17.2 of the BOT Agreement pins down the respondent No.6 and persons claiming through them to use the commercial complex for activities which are permissible within the plan user. Thus understood, it necessarily follows that there is no need of following procedure under Section 37 of the Act in the fact situation of the present case. For that reason, it is unnecessary to burden this judgment with various other issues canvassed before us by the petitioner during the argument which would have been relevant only if we were to hold that by permitting the respondent 15 No.4 to construct commercial complex, it would result in modification or change within the meaning of Section 37 of the Act. 11. The respondents have also justly pressed into service exposition in the case of Bombay Environmental Action Group and another .v. State of Maharashtra and others (reported in 2002 (Suppl) Bom.C.R., 449) in which almost similar grievance was made with regard to permission granted to exploit a space under the flyover for commercial user. The submission before the Court in that case, has been articulated in paragraph 10 of the said judgment, will be of some significance. The same has been answered against the petitioner as can be seen from the observation in paragraphs 42 to 45 of the said reported decision. Even in that case, the Court went on to observe that the directive issued by the State Government was not at all necessary as the then Regulation 68 was capable of meeting the situation faced by the State Government. It is further held that the recent amendment to Regulation 68 was not at all necessary. Even in the present case, as is noted earlier, since the user of the plot was covered by the permissible user falling in G2 of the Bye Laws, there is no question of any change or modification that would necessitate following prior procedure under Section 37 before according sanction to develop the plot. In our opinion, even in the present case, the order issued by the Government of Maharashtra on 1st February, 2001 would be unnecessary, keeping in mind the finding recorded in the earlier part of this order. Inasmuch, the regime of Section 37 of the Act will 16 have no application to the case where the plot is being developed for the user which is permissible within G2 of Appendix to the Bye Laws applicable to Residential Zone (R2) classification. 12. We do not think it necessary to elaborate on the argument of the respondents that the present petition is not bona fide and has been filed with vengeance or for that matter the petitioner has no locus to challenge the decision of the Municipal Council of which he himself happens to be the councilor. Suffice it to observe that the petition is devoid of merit and the same deserves to be dismissed. 13. Accordingly, the same is dismissed. 14. In the fact situation of the present case, in stead of awarding costs as prayed by the respondent No.6, we grant liberty to the respondent No.6 to initiate appropriate action against the petitioner for recovery of damages or such other relief as may be advised which proceeding will have to be decided on its own merit. JUDGE JUDGE *rrg.