Case Note & Summary
The case originated from a Public Interest Litigation filed by Sandeep Sharadchandra Thakur challenging the legality of the insertion of two regulations, namely Regulation Nos. 16.4.12 and 16.4.13, in the Draft Development Control Regulations of Navi Mumbai. The Navi Mumbai Municipal Corporation, the Planning Authority under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), had initiated the process for approval of the Draft Development Regulations, 1994. In its General Body meeting held on 28 March 2006, the Corporation unanimously passed Resolution No. 859, authorising publication of the draft regulations (amended up to January 2006) under Section 37(1) of the MRTP Act for inviting public objections and suggestions. However, the draft actually published in the Official Gazette on 10 April 2006 included the disputed Regulations 16.4.12 and 16.4.13, which were not part of the draft approved by the General Body. The Municipal Corporation failed to produce any record or explanation as to who inserted these regulations in the published version. The State Government subsequently granted sanction to the disputed regulations on 21 July 2008 under Section 37(2) of the MRTP Act. The petitioner contended that the entire procedure was illegal, that no authority was conferred on the Commissioner to amend the approved draft, and that information sought under the Right to Information Act revealed that documents relating to the insertion were not available in the Corporation’s office. The petitioner also argued that the report of the Committee appointed to hear objections did not recommend the incorporation of the disputed regulations, and that the footnote appended below Regulation 16.4.13 falsely claimed the regulations were approved in the General Body meeting. The Municipal Corporation, while unable to produce the record, argued that the Resolution conferred power on the Commissioner to submit the draft for State approval and that the Planning Authority could modify the draft after considering objections. The Court, after hearing the parties, observed that the undisputed fact was that the two regulations were never part of the draft approved by the General Body, and the Corporation’s explanation was shocking. The insertion without any resolution or authority was a blatant illegality vitiating the publication under Section 37(1) and the subsequent sanction under Section 37(2). The Court therefore quashed the sanction of the disputed regulations and allowed the Public Interest Litigation. The judgment reaffirms that statutory procedures under the MRTP Act must be strictly followed and that any unauthorized deviation cannot be cured by subsequent approval.
Headnote
A) Town Planning - Draft Development Regulations - Procedure for Publication - Maharashtra Regional and Town Planning Act, 1966, Sections 37(1) - The Planning Authority must publish the draft exactly as approved by the local authority; any unauthorized insertion before publication is illegal. The Municipal Corporation published draft regulations including two regulations that were never approved by its General Body. Held that the inclusion of disputed Regulations 16.4.12 and 16.4.13 in the notified draft was fundamentally illegal and void ab initio. (Paras 2, 7, 10)
B) Town Planning - State Government Sanction - Curing Defects - Maharashtra Regional and Town Planning Act, 1966, Sections 37(2) - The State Government's sanction under Section 37(2) cannot cure a fundamental defect arising from unauthorized modification of the draft by the Planning Authority after General Body approval. The sanction is vitiated if based on a flawed publication. Held that the subsequent approval by the State Government did not validate the illegality. (Paras 2, 7, 10)
C) Constitutional Law - Public Interest Litigation - Locus Standi - Public interest litigations are maintainable where there is a flagrant violation of statutory procedure affecting public at large. The lack of explanation by the Municipal Corporation as to who inserted the disputed regulations was found to be shocking and warranted judicial intervention. (Paras 2, 8)
Issue of Consideration
Whether the inclusion of disputed Regulations 16.4.12 and 16.4.13 in the Draft Development Control Regulations notified under Section 37(1) of the MRTP Act, without the approval of the General Body of the Municipal Corporation, renders the subsequent sanction by the State Government under Section 37(2) illegal and void?
Law Points
- planning authority must follow statutory procedure under MRTP Act
- draft development regulations notified under Section 37(1) must be identical to that approved by the local authority
- unauthorized insertion of regulations is invalid
- state government sanction under Section 37(2) cannot cure fundamental procedural defect
Case Details
2014 LawText (BOM) (09) 92
PIL No.110 of 2009 with Writ Petition No.5997 of 2012
Sandeep S. Thakur (petitioner in person); Ms. Kiran Bhagalia i/by Krishna Kelkar a/w Asha Bhambwani (for petitioner in WP No.5997/2012); V.P. Malvankar, AGP (for Respondent No.1); A.A. Garge (for Respondent No.2 in PIL and Respondents 2,3 in WP)
Sandeep Sharadchandra Thakur
State of Maharashtra and Ors.
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Nature of Litigation
Public Interest Litigation challenging the legality of insertion of two regulations in the Draft Development Control Regulations of Navi Mumbai, and the subsequent grant of sanction by the State Government.
Remedy Sought
Writ of Mandamus to declare the disputed Regulations (16.4.12 and 16.4.13) as null and void and to restrain the Municipal Corporation from processing proposals under them.
Filing Reason
The Municipal Corporation published draft regulations including two regulations that were never approved by its General Body, thereby violating the statutory procedure under Section 37 of the MRTP Act, 1966.
Previous Decisions
The High Court initially granted interim relief restraining action under the disputed regulations; later vacated it; the Supreme Court restored interim relief and directed time-bound disposal of the PIL. Also, in a connected PIL (No.99/2005), the High Court stayed Note No.2 to Regulation No.38.1 as amended by the same notification.
Issues
Whether the insertion of Regulation Nos.16.4.12 and 16.4.13 in the Draft Development Control Regulations published under Section 37(1) of the MRTP Act, without the approval of the General Body of the Municipal Corporation, is illegal and vitiates the subsequent sanction by the State Government under Section 37(2).
Whether the State Government's sanction under Section 37(2) of the MRTP Act can validate regulations that were not part of the originally approved draft by the Planning Authority.
Submissions/Arguments
Petitioner: The General Body Resolution No.859 only approved the draft as amended up to January 2006, which excluded the disputed regulations. No authority was conferred on the Commissioner to add new regulations. The documents relating to the insertion were not traceable even under RTI. The Committee appointed to hear objections did not recommend the inclusion of the disputed regulations. The footnote stating that the regulations were approved in the meeting was false. The entire process was illegal and the sanction must be quashed.
Respondent (Municipal Corporation): The Resolution conferred power on the Commissioner to submit the draft to the State Government. Under Section 37(1), the Planning Authority has the power to modify the draft after considering objections and suggestions. Though the record of who inserted the regulations could not be produced, there is no illegality. The State Government's sanction under Section 37(2) cures any procedural lapse.
Judgment Excerpts
The shocking fact which leads to filing of the Public Interest Litigation is that even as of today, the second Respondent – Municipal Corporation has not given any explanation as to who actually inserted the Regulation Nos.16.4.12 and 16.4.13
There is no dispute that in the Draft Development Control Regulations which were approved by the General Body vide the aforesaid Resolution No.859, the disputed Regulations were not incorporated.
Procedural History
2006-03-28: General Body of Navi Mumbai Municipal Corporation passed Resolution No.859 approving draft Development Regulations 1994 (amended up to Jan 2006) for publication under Section 37(1) MRTP Act. 2006-04-10: Draft Development Regulations notified in Official Gazette under Section 37(1), including disputed Regulations 16.4.12 and 16.4.13 which were not part of approved draft. 2007-12-12: State Government granted partial approval to the Draft Regulations. 2008-07-21: State Government granted approval to the disputed Regulations under Section 37(2). 2009-03-06: PIL No.110/2009 filed by Sandeep Thakur challenging sanction of disputed regulations. 2010-01-14: Rule issued; interim relief granted restraining Municipal Corporation from processing any proposal under disputed regulations. 2010-07-29: In PIL No.99/2005, High Court stayed Note No.2 to Regulation No.38.1 as amended by the same notification. 2012-07-12: Writ Petition No.5997/2012 filed by JN 3 Building Association ordered to be tagged with PIL 110/2009. 2012-08-02: Division Bench of Bombay High Court vacated interim relief. 2014-05-02: Supreme Court in Civil Appeal No.5026 of 2014 restored interim relief and directed time-bound disposal of PIL. 2014-09-05 & 09: Hearing and judgment of the High Court.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: 2(15), 2(19), 37(1), 37(2)
- Maharashtra Municipal Corporations Act, 1949: Not specifically mentioned
- Right to Information Act, 2005: Not specifically mentioned
