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CASE NO.: Special Leave Petition (civil)  63 of 2006

PETITIONER: Shanti G. Patel & Ors.

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 31/01/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: JUDGMENT O R D E R

       The petitioners herein before the High Court, inter alia, sought for  issuance of a writ of or in the nature of mandamus declaring Section  37(1AA) of  the Maharashtra Regional and Town Planning Act, 1966 (for  short, ’the MRTP Act’) as  violative of the Constitution of India and Items  (1) and (2) of Twelfth Schedule thereof.

       The High Court refused to enter into the aforementioned question  holding, inter alia, that in absence of a comprehensive challenge by laying   proper foundation therefor in the pleadings, as to how merely challenging  the said provision would suffice when power to issue directions is conferred   under the MRTP Act and other provisions of the  Maharashtra Metropolitan  Planning Committee Act, it would not be proper to go thereinto.  

It was furthermore observed :

"\005Section 37(1) read properly and as a whole confers an  independent power on the State government to issue  directions to the planning authority to set in motion the  procedure for effecting modification of any part of, or  any proposal made in the final development plan,  provided, of course it is of such a nature that it will not  change the character of the development plan.  Section  37(1AA) although opening with a non obstante clause  clearly postulates that if the State Government is satisfied  that in public interest it is necessary to urgently carry out  a modification of any part of, or any proposal  made in a  final development plan, then it can on it’s own publish a  notice in the Official Gazette and in such other manner as  may be determined by it, to invite objections and  suggestions from any person with respect to the proposed  modification.  Such notice would be served on the  planning authority in addition to persons affected by the  proposed modification.  It is only to enable the  Government to issue a notice for inviting objections and  suggestions that the Government thought it fit to refer to  and take recourse to the amended provisions\005"

       It was, inter alia directed :

A)      The challenge to Section 37(1AA) of  Maharashtra  Regional and Town Planning Act, 1966 is kept  open for consideration in an appropriate case.

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D)      The issue as to what is the ambit and scope of  Sect6ion 37(1) of Maharashtra Regional and Town  Planning Act, 1966 vis-‘-vis amendment to  Development Control Regulations and further  alteration of the percentage of open spaces/public  amenities and public housing earmarked or  determined thereunder is a change of the character  and basic structure of the Development Plan is  expressly kept open in the light of the above  interpretation."

       A Bench of this court has already heard appeals arising from the  judgment of the Division Bench of the High Court dated 17.10.2005 passed  in Writ Petition No. 482 of 2005 and has reserved judgment.  

       Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of  the petitioners, submitted that the hallmark of Seventy-third and Seventy- fourth Amendments being democracy at the grass-root level; the Municipal  Corporation having the popular mandate alone has the competence to make  subordinate legislation as regard town planning, as would appear from  Article 243W as also Item Nos.1 and 2 of the Twelfth Schedule  of the  Constitution of India.

       In terms of Article 243Q of the Constitution of India,  municipalities  are to be constituted.   A Municipal Corporation may be constituted for a  larger urban area, in terms of the provisions of Article 243P of the  Constitution. The Bombay Municipal Corporation, indisputably, is a body  which answers the said description.   

Presumably the election to the posts to be filled up in the Municipal  Corporation had been carried out in terms of the constitutional mandate.   Even if that has not been done, we are not called upon to determine the  question as regard violation or otherwise of the constitutional mandate  contained in Article 243R of the Constitution of India.   

Article 243W whereupon great emphasis has been laid by the   petitioners herein provides for an enabling clause so as to enable the State to  endow by law the Municipality with such powers and authority, as may be  necessary, to enable the  State to make by law by endowing the  Municipalities  to function as institutions of self-government which may  contain provisions of the devolution of powers and responsibilities subject to  the conditions which may be specified in the Twelfth Schedule.  The  Twelfth Schedule of the Constitution referable to Article 243W, inter alia,  provides for Urban planning including town planning,  regulation of land- use and construction of buildings.  Thus, Article 243W contains merely an  enabling provision, and it does not mean that the State is obligated to  provide for such a statute.  The Constitution (Seventy-fourth Amendment)  Act, in any event, does not envisage that the existing laws would become  non-operative or a vacuum would be created in the matter of enforcement of  existing laws relating to urban planning and/or regulation of land use and  construction of buildings etc.   

The existing provisions of the statutes which govern the field, in our  opinion, unless a statute is enacted by the State Legislature in terms of  Article 243W of the Constitution of India would continue to operate in the  field.  In view of the fact that the validity and/or interpretation of the MRTP  Act and/or the regulations framed by the State are otherwise pending  consideration before this Court, entertaining this special leave petition at this  stage, in our opinion, would not serve any fruitful purpose.   

We have noticed hereinbefore that the  petitioners had not laid any  foundation on  facts in the writ petition so as to comprehensively question  the vires of the existing statutes in terms of the Constitution (Seventy-fourth  

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Amendment) Act and on the said ground alone, the High Court, in or  opinion,  has rightly refused to enter thereinto.

       Even if we agree with the contention of the petitioners herein that the  writ petition should have been entertained, the High Court or for that matter  this Court could only issue a direction upon the State to pass an appropriate  legislation in terms of the provisions of Article 243W and the Twelfth  Schedule of the Constitution of India within a time frame.  By no stretch of  imagination the existing laws could have been struck down only on that  premise.   

We may notice that despite the time schedule provided for in the  Constitution (Seventy-third Amendment) Act, in several states, elections in  Panchayat Raj as also Municipalities have been held only pursuant to writ of  mandamus having been issued and/or are yet to be held despite such writs  having been issued by the several High Courts in this behalf.  

As for example, we may notice that in the State Jharkhand Panchayat  elections are yet to be held despite a writ having been issued by the  Jharkhand High Court and elections in the Hyderabad Municipal  Corporation have only been held only after a time schedule therefor was  fixed by the High Court of Andhra Pradesh.  [See  Govt. of A.P., Municipal  Administration and Urban Development (Election-II) Dept. v. C. Prakash  Goud and Others  [2001 (5) ALT 723]. If no election is held, conferment of  any power upon the elected body to implement the law made by the State in  terms of Article 243W or the Twelfth Schedule would not serve the purpose.   

       We have referred to non-holding or late holding the elections at the  gram panchayat as also municipal level only for the purpose of showing that  even in such a case, the operation of the existing statutes or implementation  thereof has not been held to have ceased.  Thus, unless an appropriate  case  is made out for issuing a direction upon the State to make a legislation in  terms of Article 243W read with Twelfth Schedule of the Constitution of  India, prima facie the provisions of the Act as also the rules and regulations  framed under the MRTP Act relating to town planning as well as the land  use or the building plans have not become otiose.   As other questions raised  by the  petitioners are already covered by the earlier decision of the High  Court, which is the subject matter of several special leave petitions pending  judgment before this Court, we are of the opinion that no fruitful purpose  would be served in entertaining the special leave petition at this stage,   which is accordingly dismissed.