Case Note & Summary
The petitioners, Anwar Hussain J. Thim and M/s. Amit Builders, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging two notifications issued by the State of Maharashtra. The first notification dated 8th November 2013 pertained to a housing policy for affordable housing for Lower Income Group (LIG) and Economically Weaker Section (EWS). The second notification dated 8th February 2016 contained Clause 3 which modified the Development Control Regulations. The petitioners sought a declaration that the 2013 notification was not applicable to their land and a writ of certiorari to quash Clause 3 of the 2016 notification. The background facts reveal that on 23rd July 2007, the State declared its housing policy, and on 17th July 2008, directed municipal corporations to modify their development control regulations to facilitate affordable housing. The petitioners contended that their land was not covered by the policy and that the modification of regulations was done without following the mandatory procedure under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), which requires prior publication and hearing. The respondents, including the State of Maharashtra and the Nashik Municipal Corporation, argued that the notifications were applicable and valid. The court analyzed the provisions of the MRTP Act and held that any modification to Development Control Regulations must strictly adhere to Section 37. Since the 2016 notification modified the regulations without such procedure, Clause 3 was ultra vires and liable to be quashed. The court also found that the 2013 notification was not applicable to the petitioners' land based on the facts. Consequently, the court allowed the petition, quashed Clause 3 of the 2016 notification, and declared that the 2013 notification did not apply to the petitioners. The court did not award costs.
Headnote
A) Town Planning - Modification of Development Control Regulations - Section 37 of Maharashtra Regional and Town Planning Act, 1966 - Requirement of Prior Publication and Hearing - The court held that any modification to Development Control Regulations must follow the procedure under Section 37, which includes prior publication and hearing. The impugned notification dated 8th February 2016, which modified the regulations without such procedure, was quashed to that extent. (Paras 10-15) B) Housing Policy - Applicability of Government Notifications - Affordable Housing for LIG and EWS - The court examined whether the notification dated 8th November 2013 applied to the petitioners' land. It held that the notification was not applicable as the petitioners' land was not covered under the policy as per the facts. (Paras 5-9) C) Constitutional Law - Writ of Certiorari - Article 226 of Constitution of India - Quashing of Illegal Administrative Action - The court allowed the writ petition and quashed Clause 3 of the notification dated 8th February 2016, as it was issued without following the mandatory procedure under the MRTP Act. (Paras 16-18)
Issue of Consideration
Whether the impugned notification dated 8th November 2013 and Clause 3 of the notification dated 8th February 2016 are applicable to the petitioners' land and whether the modification of Development Control Regulations without following the procedure under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 is valid.
Final Decision
The court allowed the writ petition. It declared that the notification dated 8th November 2013 is not applicable to the petitioners. It also quashed Clause 3 of the notification dated 8th February 2016 to the extent it modifies Development Control Regulations. No order as to costs.
Law Points
- Interpretation of Section 37 of Maharashtra Regional and Town Planning Act
- 1966
- Applicability of Government Housing Policy Notifications
- Requirement of Prior Publication and Hearing for Modification of Development Control Regulations
- Doctrine of Legitimate Expectation
