1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Civil Writ Petition No.481 of 2001 Promoters and Builders Association, Nashik, A Society duly registered under the Societies Registration Act, 1860 having its office at United House, Kulkarni Colony, Sharanpur Road, Nashik 422 002. Petitioner Vs. 1. The State of Maharashtra through the Secretary, Urban Development Department, Mantralaya, Mumbai 400 032. 2. The Municipal Corporation of the City of Nashik having its office at Nashik, Dist. Nashik. Respondents 2 Mr.R.D.Soni i/b. M/s.Ram & Co. for petitioner. Mr.S.D.Rayarikar, AGP for resp.no.1. None for resp.no.2. CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI,JJ. August 29, 2009. ORAL JUDGMENT (PER B.H. MARLAPALLE,J.) 1. This Writ Petition filed under Article 226 of the Constitution impugns the modifications made in the Development Plan and sanctioned by the State Government in the Department of Urban Development as per the order dated 16th March 2000. The said modification is under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act” for short) and in respect of the proposal for modification submitted by the Nashik Municipal Corporation (respondent no. 2). 2. The petitioner is claimed to be an Association of Persons carrying on business of promoters and builders in Nashik city. Section 37 of the MRTP Act provides for the procedure for 3 modification of final Development Plan. It appears that vide Resolution dated 28th June 1993 the Government of Maharashtra in its Urban Development Department sanctioned a Development Plan prepared for the area under the jurisdiction of the Nashik Municipal Corporation and while sanctioning the said Development Plan the State Government also sanctioned the Development Control Regulations which came into force with effect from 16th November 1993. The Corporation vide its Resolution No.13 of 1995 passed on 10th April 1995 decided to initiate a modification proposal under Section 37 of the MRT Act and a notice for inviting the suggestions and objections on the said modifications was published in the Maharashtra Government Gazette, Part 1, Nashik Division Supplement dated 9th May 1996 at Page No.315. After hearing the objections of the citizens and following all legal formalities as required under Section 37 of the MRTP Act, the Corporation submitted a modification proposal to the Government for sanction on 31st August 1998. The Government of Maharashtra, after making the necessary enquiry and consulting the Director of Town Planning, Maharashtra State, formed an opinion that the modifications suggested by the said Corporation were in public interest and as such required to be sanctioned with certain 4 modifications and accordingly such an approval / sanction was granted on 28th June 1999. However, the State Government refused to record sanction to the modifications at Serial Nos. 4, 13, 16, 21, 29, 45 and 46. It also noted that the modification at Serial No.44 was already sanctioned by the Resolution dated 13th January 2000. 3. The petitioner – Association claims to have submitted a representation to the State Government on 16th November 2000 i.e. after about six months of the impugned Resolution was passed by the State Government and raised certain objections in the modifications in the Development Plan as well as the Development Control Regulations for the City of Nashik, though the procedure as required under Section 37 of the MRTP Act was complied with by the State Government. As the said representation was not considered by the State Government and there was no response, the petitioner – Association has filed the instant petition. 4. The respondent no.2 – Municipal Corporation has filed its affidavit-in-reply through the Executive Engineer of Town Planning Department. The affidavit-in-reply is dated 13th April 5 2005 and it has been pointed out that in implementation of the modified Development Plan as well as the approved Development Control Rules the Corporation did not face any serious difficulties. For example in the month of March 2005 itself the Corporation had given building permissions for about 342 proposals and during the said period plinth completion certificates were issued in 22 cases and in 23 cases permissions for renewal of buildings were granted. There were 15 cases of granting amalgamation / sub-division and 92 cases of zoning certificates, 18 tentative layout plans were sanctioned and 10 final lay out plans were sanctioned. The Corporation has further submitted that the final proposal submitted by it by way of Development Plan is always subject to the sanction of the State Government and it is not necessary that the draft Development Plan so submitted is required to be approved or rejected in toto. The Corporation further submitted that the grievance of the petitioner Association as set out in the representation dated 16th November 2000 is required to be considered by the State Government in the Department of Urban Development and not by the Corporation. 5. We have gone through the representation dated 16th 6 November 2000 submitted by the Petitioner Association to the Principal Secretary in the Department of of Urban Development, Government of Maharashtra. The points submitted for consideration by the petitioner to the State Government in the said representation, in short, could be stated as under: (A) The stilt height for parking purposes fixed at 2.5 mtrs upto the slab is inadequate and it should be raised to 9 to 10 ft. i.e. about 2.85 to 3 mtrs. (B) Reservation of 1/3rd area for substation in case of plots having area in excess of 500 sq.mtrs or more. (C) The discretion vested with the Commissioner of the Municipal Corporation in respect of the change of user of the open space left for amenities. (D) The Municipal Corporation in its draft Development Plan had provided that the amenities steps could be used for convenience shopping and this has not been accepted by the State Government. 7 As per the petitioners this causes inconvenience to the citizens and becomes impossible for small traders and shop keepers to acquire small shops at affordable prices. The petitioners also contend that such a provision may lead to encroachment by erecting small structures. (E) The approved Development Plan has provided for ground coverage of 1/3rd of the size of the plot having area of 250 sq.mtrs. in place of the earlier provision applicable for the plot area admeasuring 1000 sq.mtrs. onwards. It is also submitted that such provision of 1/3rd open space would severely affect the middle class persons holding small plots. (F) The sanctioned modifications do not permit the basement to be used by the Banks for safe deposit vaults of strong rooms / godowns. 6. In the affidavit-in-reply filed by the Municipal Corporation it has been pointed out that so far as maximum ground coverage of 1/3rd plot area is concerned, discretionary powers 8 are vested with the Commissioner under Rule No.6.6.2 of the Development Control Rules and, therefore, in a given case if the Commissioner is satisfied to reduce or increase the maximum permissible area, he can do so. So far as the height of 2.5 mtrs. of the parking lot is concerned, it has been pointed out that the space under the building (stilt) used for parking space (unenclosed on sides), the maximum permissible height of 2.5 mtrs. from the floor to the ceiling does not appear to be too short and it appears that there is a tendency to use the stilt area for commercial purposes if the height is increased. 7. We have considered the scheme of Section 37 of the MRTP Act and it provides for a built in mechanism for the involvement of the property owners as well as the citizens of the Municipal area. Where a modification of any part of or any proposal made in a final Development Plan requires modification or it is found necessary to modify such a plan, the Planning Authority may, within ninety day from the date of such proposal, publish a notice in the official gazette for 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 on all persons affected by 9 the proposed modification and after giving a hearing to any such persons, submit the proposed modifications with amendments, if any, to the State Government for sanction. The State Government shall after the specified period forward a copy of all such objections and suggestions to the Planning Authority for its consideration. The Planning Authority shall thereupon submit its say to the Government within a period of one month from the receipt of copies of such objections and suggestions from the Government. The State Government shall, after hearing the affected persons and the Planning Authority and after making such enquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the official gazette, publish the approved modifications with or without changes, and subject to such conditions as it may dim fit, or may decide not to carry out such modification. Thus the Section gives discretion to the State Government to approve the plan with out without changes and it is not necessary that whatever is submitted by the Corporation / the Planning Authority is required to be approved by the State Government. The State Government may even reject the modification in its entirety. If a modification is sanctioned, the final Development Plan shall be deemed to 10 have been modified accordingly. 8. In the instant case the approval / sanction granted by the State Government by the impugned resolution does not fall in the realm of non-application of mind or inclusion of any proposal / modification which was not submitted by the Municipal Corporation. Nonetheless if the citizens by and large or some of the organizations / associations as the present petitioner feel it necessary in public interest that some modifications varied by the State Government are unworkable or are likely to cause inconvenience to the citizens, the remedy lies to submit such representations to the Municipal Commissioner so that such suggestions / representations are placed before the Municipal Corporation for its reconsiderations. Section 37 of the MRTP Act does not put any ceiling on the proposals for modifications to be submitted by the Planning Authority and, therefore, if such representations are discussed and debated, it is possible that the Corporation may approach afresh to the State Government for necessary modifications. Any change in the Development Plan is to be routed through and initiated by the Planning Authority and at the instance of the citizens or associations, the State 11 Government is not required to act, though Section 37 speaks that the State Government on its own can also call upon the Corporation to submit a proposal for modifications. In our opinion, it would be, therefore, advisable for the petitioner – association to approach the Municipal Corporation and submit its representation but while doing so the associations must also consider that the modified plan under the impugned GR has been in force during the last about nine years and the main grievance of public inconvenience or difficulties faced in development of housing in the Corporation limits will have to be addressed by taking into consideration the experience faced by the Corporation and the citizens during the period of the said nine years. If such representation is submitted to the Commissioner, undoubtedly it will have to be placed before the Municipal Corporation for considerations and if the Corporation agrees, the procedure under Section 37 enables it to submit a revised proposal for modification of the Development Plan. Even it is well known that the Development Plan is submitted for modifications periodically i.e. after every ten years or so by the Corporations. However, it is for the Corporation to consider any such representations / suggestions and approach the State Government by following the procedure as is contemplated 12 under Section 37 of the MRTP Act. 9. In the premises, we do not find any reason to interfere with the impugned resolution and the petition is, therefore, dismissed. However, the petitioner – association is not estopped from submitting an appropriate representation to the Commissioner, Nashik Municipal Corporation and if such representation is submitted within a period of two months from today, we expect the Commissioner to place the same before the Corporation for its deliberations. 10. Rule discharged with no order as to costs. (SMT.ROSHAN S. DALVI,J.) (B.H.MARLAPALLE,J.)