M A PANSHIKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this writ petition, the petitioner has prayed for quashing and setting aside three notifications issued by the Urban Development Department of respondent No. 1, the State of Maharashtra, all dated 4th October, 1999. The notifications have been annexed to the writ petition as Exhibit Q (colly.) (hereinafter referred to as the first, second and third notifications ). By the first notification, the State Government, in exercise of powers conferred by sub-section (1) of section 31 of the Maharashtra Regional and Town Planning Act, 1966 ( MRTP Act , for short), has sanctioned the draft development plan submitted by respondent No. 2, Thane Municipal Corporation, subject to certain modifications. The State Government, by the impugned notification, has not granted sanction to the entire draft development plan as submitted by respondent No. 2-Corporation, because it was of the view that some modifications in the said plan are necessary, which were of substantial nature, requiring re-publication under section 31 of the MRTP Act. The plan submitted by respondent No. 2-Corporation, excepting the modifications by the Government, which are considered to be of substantial nature, has been sanctioned. The petitioner has impugned this notification on the ground that the congested area sanctioned in the development plan goes beyond the limits of Gaothan as shown in the draft development plan. In other words, the development plan as sanctioned has congested area beyond the limits of Gaothan area. The second notification issued by the State Government is under sub-section (1) of section 31 of the MRTP Act sanctioning the Draft Development Control Regulations submitted by respondent No. 2-Corporation specifying that the congested area shall be as shown in the development plan as sanctioned by the State Government by its first notification, and that permissible FSI (Floor Space Index) in congested area shall be 1. 5 for purely residential use, and in case of mixed residential and commercial use additional FSI shall be 0. 5 for the commercial use only, and provision made in paragraph No. 1. 1. 2, (b), (c), N. 1. 1. 3, N. 1. 1. 4, N. 1. 1. 5, shall be applicable for development in congested area. The petitioner impugns this notification on the ground that there is an increase in FSI for the congested area which is a modification of a substantial nature as enumerated in section 22-A of the MRTP Act, and the said modification has been sanctioned without following the procedure laid down in the second proviso of section 31 (1) of the MRTP Act. The third notification had been issued by the State Government in exercise of powers conferred by sub-section (2) of section 37 of the MRTP Act, whereby the proposal for modification of the final development plan made by the Planning Authority, viz. , respondent No. 2-Corporation, after following the necessary legal formalities under section 37 of the MRTP Act, has been sanctioned. The petitioner impugns this notification on the ground that additional FSI has been illegally given for the re-construction/re-development schemes relating to dilapidated buildings.

(2.) THE case of the petitioner is that before respondent No. 2-Corporation was established, there was the erstwhile Thane Municipal Council. The development plan for the erstwhile Thane Municipal Council, along with the Development Control Rules, was sanctioned by the Government by a notification dated 3rd October, 1974, which came into force with effect from 4th November, 1974. Under the said Development Control Rules of 1974, the FSI, 1. 33 was prescribed for the Gaothan area as shown in the sanctioned Development Plan of 1974. For the lands falling outside the Gaothan, the FSI permissible was FSI: 1. Respondent No. 2-Thane Municipal Corporation was established by Government Circular dated 1st October, 1982 for the area falling within the jurisdiction of the erstwhile Municipal Council, to which 32 villages were added. After its establishment, respondent No. 2-Corporation followed the provisions of the sanctioned Development Control Rules of 1974 in the matter of grant of development permission under the MRTP Act. Respondent No. 2-Corporation carried out modifications in the said sanctioned Development Control Rules, 1974 and published the same on 1st July, 1985. The said published Draft Development Control Rules also provided FSI: 1. 33 for the Gaothan area as shown in the sanctioned development plan of 1974 and FSI: 1 for other lands falling outside the Gaothan. After considering the objections and suggestions received from the public, the general body of respondent No. 2-Corporation on 2nd May, 1988 resolved to send the revised Draft Development Control Rules, 1985 to respondent No. 1, State of Maharashtra, for sanction, and the same was actually sent to the State Government on 29th July, 1988.

(3.) THE case of the petitioner is that several owners, developers and architects submitted their respective development proposals to respondent No. 2-Corporation under the provisions of the MRTP Act between the years 1988 and 1992. On the basis of letters issued by the District Inspector of Land records, they claimed lands which really did not fall within the Gaothan area as lands falling within the Gaothan. On such misrepresentation, they got sanctioned development proposals. Though the permissible FSI in respect of the lands was only 1, they were granted FSI: 2, even though for the Gaothan area, the permissible FSI was only 1. 33. Similarly, the developers of lands falling within the Gaothan also obtained development permission claiming the FSI: 2, instead of 1. 33 permissible under the Development Control Rules. Such development permission with FSI: 2 were fraudulently obtained and granted against which the petitioner represented to the officers of respondent No. 2-Corporation who, however, justified the development permissions granted to the aforesaid developers. The petitioner, thereafter, brought this fact to the notice of the Settlement Commissioner and Director of Land Records, Pune, Maharashtra State, who addressed a letter to respondent No. 2-Corporation informing it that while granting development permission to lands falling outside the Gaothan area, such permission was granted by wrongly treating the lands as falling within the Gaothan. The petitioner brought this fact to the notice of the Secretary, Urban Development Department, Government of Maharashtra, who directed the Collector of Thane and the Commissioner of respondent No. 2 to hold an enquiry in the matter of development permission granted and obtained pursuant to a fraudulent plan. The Collector of Thane did make an enquiry, and thereafter wrote to the State Government to re-consider sanction of the development permissions with respect to the lands which really fell outside the Gaothan area, but which were granted permissions treating them as falling within the Gaothan area. The petitioner also represented to the Consolidation Officer, Thane, who wrote a letter dated 31st July, 1992 to respondent No. 2-Corporation directing that all the certificates issued by the District Inspector of Land Records with respect to the list of lands falling outside the Gaothan area be treated as cancelled, as the same had been issued illegally. When the scandal came to public notice, the new Commissioner of respondent No. 2-Corporation exercising powers under section 258 of the Bombay Provincial Municipal Corporations Act and section 51 of the MRTP Act, issued show-cause notices on 5th August, 1992 to 10 developers who had got their development proposals sanctioned by misrepresenting that the said lands fell within Gaothan. The show-cause notices were challenged by some of the developers by way of civil suit, and they got the show-cause notices stayed. Respondent No. 2-Corporation, thereafter, challenged the orders staying the show-cause notices in this Court, which stayed the order of stay of show-cause notices dated 5th August, 1992 passed by the Civil Court, Thane. Thereafter, on 3rd November, 1992, the Commissioner of respondent No. 2-Corporation directed the demolition of the illegal buildings constructed by such developers after revoking development permissions granted to them. Ultimately, the High Court directed the Commissioner of respondent No. 2 to examine the entire issue again, and dispose of the same by passing a speaking order.